EXBHIBIT 4.3
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SUNAMERICA INC.
AND
THE BANK OF NEW YORK,
AS PURCHASE CONTRACT AGENT
PURCHASE CONTRACT AGREEMENT
DATED AS OF NOVEMBER 6, 1996
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TABLE OF CONTENTS
Page
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ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions.............................................1
Section 1.02. Compliance Certificates and Opinions....................9
Section 1.03. Form of Documents Delivered to Agent...................10
Section 1.04. Acts of Holders; Record Dates..........................11
Section 1.05. Notices, Etc., to Agent and the Company................12
Section 1.06. Notice to Holders; Waiver..............................13
Section 1.07. Effect of Headings and Table of Contents...............13
Section 1.08. Successors and Assigns.................................14
Section 1.09. Separability Clause....................................14
Section 1.10. Benefits of Agreement..................................14
Section 1.11. Governing Law..........................................14
Section 1.12. Legal Holidays.........................................14
Section 1.13. Counterparts...........................................15
Section 1.14. Inspection of Agreement................................15
Section 1.15. Appointment of Financial Institution as Agent for
the Company ...........................................15
ARTICLE 2
Security Certificate Forms
Section 2.01. Forms of Security Certificates Generally; Book-Entry...15
Section 2.02. Form of Agent's Certificate of Authentication..........18
ARTICLE 3
The Securities
Section 3.01. Title and Terms; Denominations.........................18
Section 3.02. Rights and Obligations Evidenced by the
Security Certificates .................................18
Section 3.03. Execution, Authentication, Delivery and Dating.........19
Section 3.04. Temporary Security Certificates........................20
Section 3.05. Registration; Registration of Transfer and Exchange....20
Section 3.06. Mutilated, Destroyed, Lost and Stolen Security
Certificates...........................................22
Section 3.07. Persons Deemed Owners..................................23
Section 3.08. Cancellation...........................................24
Section 3.09. Securities Not Separable...............................25
Section 3.10. No Consent to Assumption...............................25
Section 3.11. Cusip Numbers..........................................25
ARTICLE 4
The Treasury Notes
Section 4.01. Payment of Interest; Interest Rights Preserved.........25
Section 4.02. Transfer of Treasury Notes upon Certain Events or
Sale of Treasury Notes.................................26
ARTICLE 5
The Purchase Contracts
Section 5.01. Purchase of Shares of Common Stock on the Final
Settlement Date........................................28
Section 5.02. Contract Fees..........................................29
Section 5.03. Deferral of Payment Dates for Contract Fees............30
Section 5.04. Payment of Purchase Price..............................31
Section 5.05. Issuance of Common Stock...............................31
Section 5.06. Settlement Rate; Adjustment of Settlement Rate for
Dividends, Distributions, Stock Splits, Etc............32
Section 5.07. Notice of Adjustments and Certain Other Events.........38
Section 5.08. Acceleration; Notice...................................39
Section 5.09. Bankruptcy Event or Sale of Assets; Notice.............42
Section 5.10. Holder's Early Settlement..............................43
Section 5.11. No Fractional Shares...................................44
Section 5.12. Charges and Taxes......................................45
ARTICLE 6
Remedies
Section 6.01. Unconditional Right of Holders to Receive Contract
Fees and Purchase Common Stock.........................45
Section 6.02. Restoration of Rights and Remedies.....................46
Section 6.03. Rights and Remedies Cumulative.........................46
Section 6.04. Delay or Omission Not Waiver...........................46
Section 6.05. Undertaking for Costs..................................46
Section 6.06. Waiver of Stay or Extension Laws.......................47
ARTICLE 7
The Agent
Section 7.01. Certain Duties and Responsibilities....................47
Section 7.02. Notice of Default......................................48
Section 7.03. Certain Rights of Agent................................48
Section 7.04. Not Responsible for Recitals or Issuance of Securities.50
Section 7.05. May Hold Securities....................................50
Section 7.06. Money Held in Custody..................................50
Section 7.07. Compensation and Reimbursement.........................50
Section 7.08. Corporate Agent Required; Eligibility..................51
Section 7.09. Resignation and Removal; Appointment of Successor......52
Section 7.10. Acceptance of Appointment by Successor.................53
Section 7.11. Preservation of Information; Communications to Holders.53
Section 7.12. No Obligations of Agent................................54
Section 7.13. Tax Compliance.........................................54
Section 7.14. Merger, Conversion, Consolidation or Succession to
Business of Agent......................................55
ARTICLE 8
Supplemental Agreements
Section 8.01. Supplemental Agreements Without Consent of Holders.....55
Section 8.02. Supplemental Agreements with Consent of Holders........56
Section 8.03. Execution of Supplemental Agreements...................57
Section 8.04. Effect of Supplemental Agreements......................57
Section 8.05. Reference to Supplemental Agreements...................57
ARTICLE 9
Covenants
Section 9.01. Performance under Purchase Contracts...................58
Section 9.02. Maintenance of Office or Agency........................58
Section 9.03. Company to Reserve Common Stock........................59
Section 9.04. Covenants as to Common Stock...........................59
Section 9.05. Statements of Officers of the Company as to Default....59
PURCHASE CONTRACT AGREEMENT, dated as of November 6, 1996,
between SunAmerica Inc., a Maryland corporation (the "Company"), and The Bank
of New York, a New York banking corporation, acting as purchase contract agent
for the Holders of Securities from time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of
this Agreement and the Security Certificates evidencing the Securities.
All things necessary to make the Company's obligations under the
Securities, when the Security Certificates are executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Agent,
as in this Agreement provided, the valid obligations of the Company, and to
constitute these presents a valid agreement of the Company, in accordance with
its terms, have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01 Definitions.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and
(2) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning
specified in Section 1.04(a).
"Acceleration" means either a "Company Acceleration" or a
"Mandatory Acceleration."
"Acceleration Date" means either a "Company Acceleration Date"
or a "Mandatory Acceleration Date."
"Acceleration Settlement Fund" has the meaning specified in
Section 5.5.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means the Person named as the "Agent" in the first
paragraph of this instrument until a successor Agent shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter
"Agent" shall mean the Person who is then the Agent hereunder.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"applicants" has the meaning specified in Section 7.11.0
"Authorized Newspaper" has the meaning set forth in Section
5.08(c).
"Bankruptcy Code" means title 11 of the United States Code, or
any other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Bankruptcy Date" means the date, if any, on which a Bankruptcy
Event occurs.
"Bankruptcy Event" means the occurrence of any of the following
events (whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order rule or regulation of any administration or governmental body):
(i) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or any
substantial part of its property or ordering the winding up or liquidation of
its affairs, and such decree or order shall remain unstayed and in effect for
a period of 60 consecutive days; or
(ii) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property, or make
any general assignment for the benefit of creditors.
"Beneficial Owner" means, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with the
rules of such Clearing Agency).
"Board of Directors" means the board of directors of the
Company or a duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification and
delivered to the Agent.
"Book Entry Interest" means a beneficial interest in a Global
Security Certificate registered in the name of a Clearing Agency or a nominee
thereof, ownership and transfers of which shall be maintained and made through
book entries by such Clearing Agency as described in Section 2.1.0
"Business Day" means any day that is not a Saturday, Sunday or
a day on which the NYSE or banking institutions or trust companies in The City
of New York are authorized or obligated by law or executive order to be closed.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depository for the Securities and in whose name or in the name of a nominee
of that organization, shall be registered a Global Security Certificate and
which shall undertake to effect book entry transfers and pledges of the
Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Price"means on any day the closing sales price regular
way on such day or, in case no such sale takes place on such day, the average
of the reported closing bid and asked prices regular way, in each case on the
New York Stock Exchange, or, if the Common Stock is not listed or admitted to
trading on such Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or, if not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and asked prices of the Common Stock on the over-the-counter
market on the day in question as reported by the National Quotation Bureau
Incorporated, or a similarly generally accepted reporting service, or if not so
available in such manner as furnished by any New York Stock Exchange member
firm selected from time to time by the Board of Directors of the Company for
that purpose.
"Collateral Agent" means The First National Bank of Chicago, as
Collateral Agent under the Pledge Agreement until a successor Collateral Agent
shall have become such pursuant to the applicable provisions of the Pledge
Agreement, and thereafter "Collateral Agent" shall mean the Person who is then
the Collateral Agent thereunder.
"Common Stock" means the Common Stock, par value $1.000 per
share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such pursuant
to the applicable provisions of this Agreement, and thereafter "Company" shall
mean such successor.
"Company Acceleration" has the meaning specified in Section 5.8.
"Company Acceleration Date" has the meaning specified in
Section 5.8.
"Company Acceleration Price" shall mean the per share price
(payable in shares of Common Stock) at which the Company may accelerate
settlement of the Securities, which shall be initially $59.289, declining by
$.008060 on each day following November 6, 1996 (computed on the basis of a
360-day year of twelve 30-day months) to $51.01081 on August 31, 1999 and equal
to $50.625 thereafter.
"Contract Fees" means the fees payable by the Company on each
Payment Date in respect of each Purchase Contract, equal to 1.00% per annum of
the Stated Amount plus any Deferred Contract Fees accrued pursuant to Section
5.3, computed on the basis of the actual number of days elapsed in a year of
365 or 366 days, as the case may be, except that the Contract Fees payable on
the first Payment Date will be adjusted so that the Contract Fees payable on
such date will be $.122243 per Security.
"Corporate Trust Office" means the principal corporate trust
office of the Agent at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located at
000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286, Attention:
Corporate Trust Trustee Administration.
"Current Market Price" has the meaning specified in Section
5.6(g).
"Deferred Contract Fees" has the meaning specified in Section
5.3.
"Depositary" means a clearing agency registered under the
Exchange Act that is designated to act as Depositary for the Securities as
contemplated by Section 3.5.
"DTC" has the meaning specified in Section 2.1.0
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Expiration Date" has the meaning specified in Section 1.04(e).
"Expiration Time" has the meaning specified in Section 5.6(f).
"Final Settlement Date" means October 31, 1999.
"Final Settlement Fund" has the meaning specified in Section
5.5.
"Global Security Certificate" means a Security Certificate that
evidences all or part of the Securities and is registered in the name of a
Depositary or a nominee thereof.
"Holder" when used with respect to a Security Certificate (or a
Security), means a Person in whose name the Security evidenced by such
Security Certificate (or the Security Certificate evidencing such Security) is
registered in the Security Register, subject to Section 3.7.
"Holder's Early Settlement" has the meaning specified in Section
5.10(a).
"Holder's Early Settlement Amount" has the meaning specified in
Section 5.10(a).
"Holder's Early Settlement Date" has the meaning specified in
Section 5.10(a).
"Indenture" means the Prepaid Securities Indenture between the
Company and The Bank of New York, as Trustee, dated as of November 1, 1996 as
amended by the First Supplemental Indenture between the Company and The Bank
of New York, as Trustee, dated as of November 6, 1996 specifically relating to
the Prepaid Securities, as amended from time to time.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Company by its Chairman of the Board, any
Vice Chairman, its President, any Vice President or any Treasurer and
delivered to the Agent.
"Mandatory Acceleration" has the meaning specified in Section
5.8.
"Mandatory Acceleration Date" has the meaning specified in
Section 5.8.
"Merger or Consolidation" has the meaning specified in Section
5.8.
"Notice Date" has the meaning specified in Section 5.8.
"NYSE" means the New York Stock Exchange.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, any Vice Chairman of the Board, the President, any Vice
President or any Treasurer and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company and who shall be
reasonably acceptable to the Agent.
"Outstanding Securities" means, as of the date of
determination, all Securities evidenced by then Outstanding Security
Certificates, except:
(i) If a Bankruptcy Event has occurred, Securities for
which the underlying Treasury Notes have been theretofore
deposited with the Agent in trust for the Holders of such
Securities; and
(ii) On and after a Company Acceleration Date, Securities
as to which the Company has elected to effect a Company
Acceleration; provided, however, that in determining whether the
Holders of the requisite number of Securities have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or any Affiliate
of the Company shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Agent shall
be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which the Agent knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good
faith may be regarded as outstanding if the pledgee establishes to
the satisfaction of the Agent the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company
or any Affiliate of the Company.
"Outstanding Security Certificates" means, as of the date of
determination, all Security Certificates theretofore authenticated, executed
and delivered under this Agreement, except:
(i) Security Certificates theretofore canceled by the Agent
or delivered to the Agent for cancellation; and
(ii) Security Certificates in exchange for or in lieu of which
other Security Certificates have been authenticated, executed on behalf of the
Holder and delivered pursuant to this Agreement, other than any such Security
Certificate in respect of which there shall have been presented to the Agent
proof satisfactory to it that such Security Certificate is held by a bona fide
purchaser in whose hands the Securities evidenced by such Security Certificate
are valid obligations of the Company.
"Payment Date" means each April 30 and October 31commencing
April 30, 1997.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pledge" means the pledge under the Pledge Agreement of the
Treasury Notes constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, among the Company, the Collateral Agent and the Agent, on its own
behalf and as attorney-in-fact for the Holders from time to time of the
Securities.
"Predecessor Security Certificate" of any particular Security
Certificate means every previous Security Certificate evidencing all or a
portion of the rights and obligations of the Holder under the Securities
evidenced thereby; and, for the purposes of this definition, any Security
Certificate authenticated and delivered under Section 3.6 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security Certificate shall be
deemed to evidence the same rights and obligations of the Holder as the
mutilated, destroyed, lost or stolen Security Certificate.
"Prepaid Securities" means the series of securities issued
under the Indenture and designated the "8.5% Prepaid Premium Equity Redemption
Cumulative Securities" to be issued upon a Holder's Early Settlement.
"Purchase Contract," when used with respect to any Security,
means the contract obligating the Company to sell and the Holder of such
Security to purchase Common Stock and to pay Contract Fees and Deferred
Contract Fees, if any, on the terms and subject to the conditions set forth in
Article 5 hereof.
"Purchased Shares" has the meaning specified in Section 5.6(g).
"Record Date" for the interest and Contract Fees payable on any
Payment Date means, as to any Global Security Certificate, the Business Day
next preceding such Payment Date, and as to any other Security Certificate,
the 15th day of the month preceding such Payment Date.
"Responsible Officer," when used with respect to the Agent,
means any officer of the Agent assigned by the Agent to administer its
corporate trust matters.
"Sale of Assets" means a sale, assignment, transfer, lease or
conveyance of all or substantially all of the properties and assets of the
Company to any Person which results in a voluntary liquidation, dissolution or
winding up of the Company.
"Sale of Assets Date" means the date upon which a Sale of
Assets is approved by the Board of Directors.
"Security" means the collective rights and obligations of a
Holder of a Security Certificate in respect of Treasury Notes with a principal
amount equal to the Stated Amount, subject to the Pledge thereof, and a
Purchase Contract.
"Security Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Securities
specified on such certificate.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Settlement Date" means an Acceleration Date, a Holder's Early
Settlement Date, a Sale of Assets Date or the Final Settlement Date, as
applicable.
"Settlement Rate" has the meaning specified in Article 5.
"Stated Amount" means $37.50.
"TIA" means the Trust Indenture Act of 1939, as amended, or any
successor statute.
"Trading Day" has the meaning specified in Section 5.6(g).
"Treasury Notes" means 7.5% United States Treasury Notes due
October 31, 1999.
"Underwriting Agreement" means the Purchase Agreement dated
October 31, 1996 between the Company and Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx, Sachs & Co. and
Xxxxx Xxxxxx Inc., as representatives of the several Underwriters named
therein (collectively, the "Underwriters"), as amended by the First Amendment
to the Underwriting Agreement dated November 1, 1996 between the Company and
the Underwriters.
"Vice President" means any vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president."
Section 1.02. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon
any application or request by the Company to the Agent to take any action under
any provision of this Agreement, the Company shall furnish to the Agent an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Agreement relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Agreement relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Agent.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be consolidated
and form one instrument.
Section 1.04. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are
delivered to the Agent and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Agreement and (subject to Section 7.1) conclusive in favor
of the Agent and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Agent deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security Certificate
evidencing such Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Agent or the Company in reliance thereon, whether
or not notation of such action is made upon such Security Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Agreement to be given, made or
taken by Holders of Securities. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to take the relevant action, whether or not
such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite number of Outstanding Securities
on such record date. Nothing in this paragraph shall be construed to prevent
the Company from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record
date previously set shall automatically and with no action by any Person be
canceled and of no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite number of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Agent in writing and to each
Holder of Securities in the manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section,
the Company may designate any date as the "Expiration Date" and from time to
time may change the Expiration Date to any earlier or later day; provided that
no such change shall be effective unless notice of the proposed new Expiration
Date is given to the Agent in writing, and to each Holder of Securities in the
manner set forth in Section 1.06, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the Company shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Section 1.05. Notices, Etc., to Agent and the Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Agreement to be made upon, given or furnished to, or filed with,
(a) the Agent by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or mailed,
first-class postage prepaid, to the Agent at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West,
New York, New York 10286, Attention: Corporate Trust Trustee Administration,
or at any other address previously furnished in writing by the Agent to the
Holders and the Company, or
(b) the Company by the Agent or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or mailed,
first-class postage prepaid, to the Company at 0 XxxXxxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Xxxxx X. Xxxxxx, or at any other
address previously furnished in writing to the Agent by the Company.
Section 1.06. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Agent, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Agent
shall constitute a sufficient notification for every purpose hereunder.
Section 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.08. Successors and Assigns.
All covenants and agreements in this Agreement by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.09. Separability Clause.
In case any provision in this Agreement or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and thereof shall not in any
way be affected or impaired thereby.
Section 1.10. Benefits of Agreement.
Nothing in this Agreement or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefits or any legal or equitable
right, remedy or claim under this Agreement. The Holders from time to time
shall be beneficiaries of this Agreement and shall be bound by all of the
terms and conditions hereof and of the Securities evidenced by their Security
Certificates by their acceptance of delivery thereof.
Section 1.11. Governing Law.
This Agreement and the Securities shall be governed by and
construed in accordance with the laws of the State of New York without regard
to conflict of laws.
Section 1.12. Legal Holidays.
In any case where any Payment Date or any Settlement Date shall
not be a Business Day, then (notwithstanding any other provision of this
Agreement or of the Securities) payment in respect of interest on Treasury
Notes or Contract Fees or settlement of Purchase Contracts shall not be made,
Purchase Contracts shall not be performed and settlement shall not be effected
on such date, but such payments shall be made, or the Purchase Contracts shall
be performed or settlement effected, as applicable, on the next succeeding
Business Day with the same force and effect as if made on such Payment Date or
Settlement Date, as the case may be; provided, that no interest shall accrue
or be payable by the Company or any Holder for the period from and after any
such Payment Date or Settlement Date, as the case may be.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which, when so executed, shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable
times at the Corporate Trust Office for inspection by any Holder.
Section 1.15. Appointment of Financial Institution as Agent
for the Company .
The Company may appoint a financial institution (which may be
the Collateral Agent) to act as its agent in performing its obligations, and in
accepting and enforcing performance of the obligations of the Agent and the
Holders, under this Agreement and the Purchase Contracts, by giving notice of
such appointment in the manner provided in Section 1.05 hereof. Any such
appointment shall not relieve the Company in any way from its obligations
hereunder.
ARTICLE 2
Security Certificate Forms
Section 2.01. Forms of Security Certificates Generally;
Book-Entry.
The Security Certificates (including the form of Purchase
Contracts forming part of the Securities evidenced thereby) shall be in
substantially the form set forth in Exhibit A hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by
the rules of any securities exchange on which the Securities are listed or
Depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Security Certificates, as evidenced by
their execution of the Security Certificates.
The definitive Security Certificates (if any) shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Security Certificates, consistent with the provisions of this Agreement, as
evidenced by their execution thereof.
Every Global Security Certificate authenticated, executed on
behalf of the Holders and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY CERTIFICATE IS A GLOBAL SECURITY CERTIFICATE WITHIN
THE MEANING OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC") OR A NOMINEE OF DTC. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF
THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE
BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR
ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (55 WATER STREET) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
The Securities will be issued in the form of one or more, fully
registered Global Security Certificates, to be delivered to DTC, the initial
Clearing Agency, by, or on behalf of, the Company. Such Global Security
Certificates shall initially be registered on the books and records of the
Company in the name of Cede & Co., the nominee of DTC, and no Holder will
receive a definitive Security Certificate representing such Holder's interests
in such Global Security Certificates, except as provided in this Section 2.01.
Unless and until definitive, fully registered Security Certificates have been
issued to a Holder pursuant to the provisions of this Section 2.01:
(i) the provisions of this Section 2.001 shall be in full
force and effect;
(ii) the Company and the Agent shall be entitled to deal with
the Clearing Agency for all purposes of this Agreement (including the payment
of any amounts on the Global Security Certificates and receiving approvals,
votes or consents hereunder) as the Holder and the sole holder of the Global
Security Certificates and shall have no obligation to the Beneficial Owner;
(iii) to the extent that the provisions of this Section 2.001
conflict with any other provisions of this Agreement or the Purchase
Contracts, the provisions of this Section 2.001 shall control; and
(iv) the rights of the Beneficial Owners shall be exercised
only through the Clearing Agency and shall be limited to those established by
law and agreements between such Beneficial Owners and the Clearing Agency
and/or the Clearing Agency Participants. DTC will make book entry transfers
among the Clearing Agency Participants and receive and transmit payments of
amounts on the Global Security Certificates to such Clearing Agency
Participants.
Whenever a notice or other communication to the Holders is
required to be given under this Agreement, unless and until definitive Security
Certificates shall have been issued, the Company and the Agent shall give all
such notices and communications, specified herein to be given to Holders, to
the Clearing Agency and, with respect to any Security Certificate registered in
the name of a Clearing Agency or the nominee of a Clearing Agency, the Company
and the Agent shall have no notice obligations to the Holder.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities, the Company may, in
their sole discretion, appoint a successor Clearing Agency with respect to the
Securities.
If (i) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities and a successor Clearing
Agency is not appointed within 90 days after such discontinuance or (ii) the
Company elects after consultation with the Agent to terminate the book entry
system through the Clearing Agency with respect to the Securities, then (x)
definitive Security Certificates shall be prepared by the Agent on behalf of
the Company with respect to such Securities and (y) upon surrender of the
Global Security Certificates by the Clearing Agency, accompanied by
registration instructions, the Agent shall cause definitive Security
Certificates to be delivered to Holders in accordance with the instructions of
the Clearing Agency. Neither the Agent nor the Company shall be liable for
any delay in delivery of such instructions and each of them may conclusively
rely on and shall be protected in relying on, such instructions.
Section 2.02.0 Form of Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the
Securities shall be in substantially the form set forth on the form of the
Security Certificates.
ARTICLE 3
The Securities
Section 3.01. Title and Terms; Denominations.
The aggregate number of Securities evidenced by Security
Certificates authenticated, executed on behalf of the Holders and delivered
hereunder is limited to 11,500,000, with a Stated Amount of $37.50 per
Security, except for Security Certificates authenticated, executed and
delivered upon registration of transfer of, in exchange for, or in lieu of,
other Security Certificates pursuant to Section 3.04, 3.05, 3.06, 5.10 or 8.5.
The Security Certificates shall be issuable only in registered
form and only in denominations of a single Security and any integral multiple
thereof.
Section 3.02. Rights and Obligations Evidenced by the Security
Certificates.
Each Security Certificate shall evidence the number of
Securities specified therein, with each such Security representing the
ownership by the Holder thereof of Treasury Notes with a principal amount
equal to the Stated Amount, subject to the Pledge of such Treasury Notes by
such Holder pursuant to the Pledge Agreement, and the rights and obligations
of the Holder under one Purchase Contract. The Agent as attorney-in-fact for,
and on behalf of, the Holder shall pledge, pursuant to the Pledge Agreement,
dated as of the date hereof, the Treasury Notes to the Collateral Agent and
grant to the Collateral Agent a security interest in the right, title, and
interest of such Holders in the Treasury Notes, for the benefit of the
Company, to secure the obligation of the Holders under the Purchase Contracts
to purchase the Common Stock of the Company. Prior to the purchase, if any, of
shares of Common Stock under the Purchase Contracts, the Securities shall not
entitle the Holders to any of the rights of a holder of shares of Common Stock,
including, without limitation, the right to vote or receive any dividends or
other payments or to consent or to receive notice as stockholders in respect of
the meetings of stockholders or for the election of directors of the Company or
for any other matter, or any other rights whatsoever as stockholders of the
Company, except to the extent otherwise expressly provided in this Agreement.
Section 3.03 Execution, Authentication, Delivery and Dating.
Upon the execution and delivery of this Agreement, at any time
and from time to time thereafter, the Company may deliver Security Certificates
executed by the Company to the Agent for authentication, execution on behalf
of the Holders and delivery, together with its Issuer Order for authentication
of such Security Certificates, and the Agent in accordance with such Issuer
Order shall authenticate, execute on behalf of the Holder and make available
for delivery such Security Certificates.
The Security Certificates shall be executed on behalf of the
Company by its Chairman of the Board, any Vice Chairman of the Board, its
President or any Vice President or its Treasurer, under its corporate seal
which may, but need not, be attested. The signature of any of these officers
on the Security Certificates may be manual or facsimile.
Security Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Security Certificates or did not hold such offices at the
date of such Security Certificates.
No Purchase Contract underlying a Security evidenced by a
Security Certificate shall be valid until such Security Certificate has been
executed on behalf of the Holder by the manual signature of an authorized
signatory of the Agent, as such Holder's attorney-in-fact. Such signature by
an authorized signatory of the Agent shall be conclusive evidence that the
Holder of such Security Certificate has entered into the Purchase Contracts
underlying the Securities evidenced by such Security Certificate.
Each Security Certificate shall be dated the date of its
authentication.
No Security Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose unless there appears
on such Security Certificate a certificate of authentication substantially in
the form provided for herein executed by an authorized signatory of the Agent
by manual signature, and such certificate upon any Security Certificate shall
be conclusive evidence, and the only evidence, that such Security Certificate
has been duly authenticated and made available for delivery hereunder.
Section 3.04. Temporary Security Certificates.
Pending the preparation of definitive Security Certificates, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holders, and deliver, in lieu of such
definitive Security Certificates, temporary Security Certificates which are in
substantially the form set forth in Exhibit A hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by
the rules of any securities exchange on which the Securities are listed, or as
may, consistently herewith, be determined by the officers of the Company
executing such Security Certificates, as evidenced by their execution of the
Security Certificates.
If temporary Security Certificates are issued, the Company will
cause definitive Security Certificates to be prepared without unreasonable
delay. After the preparation of definitive Security Certificates, the
temporary Security Certificates shall be exchangeable for definitive Security
Certificates upon surrender of the temporary Security Certificates at the
Corporate Trust Office, at the expense of the Company and without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Security Certificates, the Company shall execute and deliver to the Agent, and
the Agent shall authenticate, execute on behalf of the Holder, and deliver in
exchange therefor, one or more definitive Security Certificates of authorized
denominations and evidencing a like number of Securities as the temporary
Security Certificate or Security Certificates so surrendered. Until so
exchanged, the temporary Security Certificates shall in all respects evidence
the same benefits and the same obligations with respect to the Securities
evidenced thereby as definitive Security Certificates.
Section 3.05. Registration; Registration of Transfer and
Exchange.
The Agent shall keep at the Corporate Trust Office a register
(the register maintained in such office being herein referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Agent shall provide for the registration of Security
Certificates and of transfers of Security Certificates (the Agent, in such
capacity, the "Security Registrar").
Upon surrender for registration of transfer of any Security
Certificate at the Corporate Trust Office, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf of
the designated transferee or transferees, and deliver, in the name of the
designated transferee or transferees, one or more new Security Certificates of
any authorized denominations and evidencing a like number of Securities.
At the option of the Holder, if definitive Security
Certificates are issued, Security Certificates may be exchanged for other
Security Certificates, of any authorized denominations and evidencing a like
number of Securities, upon surrender of the Security Certificates to be
exchanged at the Corporate Trust Office. Whenever any Security Certificates
are so surrendered for exchange, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver the Security Certificates which the Holder making the exchange is
entitled to receive.
All Security Certificates issued upon any registration of
transfer or exchange of a Security Certificate shall evidence the ownership of
the same number of Securities and be entitled to the same benefits and subject
to the same obligations, under this Agreement as the Securities evidenced by
the Security Certificate surrendered upon such registration of transfer or
exchange.
Every Security Certificate presented or surrendered for
registration of transfer or for exchange shall (if so required by the Agent)
be duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Agent duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of a Security Certificate, but the Company and the Agent
may require payment from the Holder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Security Certificates, other than any
exchanges pursuant to Sections 3.04, 3.06, 5.10, and 8.5 not involving any
transfer.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder and deliver any
Security Certificate presented or surrendered for registration of transfer or
for exchange on or after the Final Settlement Date, an earlier Acceleration
Date with respect to the Securities evidenced by such Certificates, a Holder's
Early Settlement Date with respect to the Securities evidenced by such
Certificates or after the Purchase Contracts have terminated. In lieu of the
delivery of a replacement Security Certificate following the Final Settlement
Date or an earlier Acceleration Date with respect to the Securities evidenced
by such Certificates, the Agent, upon satisfaction of any conditions set forth
herein, will deliver the Common Stock issuable pursuant to the Purchase
Contracts included in the Securities evidenced by such Certificate, or, if the
Purchase Contracts have terminated prior to the Final Settlement Date or a
Holder's Early Settlement Date has occurred, upon satisfaction of any
conditions set forth herein, transfer the Treasury Notes included in the
Securities evidenced by such Certificate.
The provisions of Clauses (a), (b), (c) and (d) below shall
apply only to Global Security Certificates:
(a) Each Global Security Certificate authenticated and executed on
behalf of the Holders under this Agreement shall be registered in the name of
Cede & Co., as nominee of DTC as set forth in Section 2.1.
(b) Notwithstanding any other provision in this Agreement, no
Global Security Certificate may be exchanged in whole or in part for Security
Certificates registered, and no transfer of a Global Security Certificate in
whole or in part may be registered, in the name of any Person other than DTC
for such Global Security Certificate or a nominee thereof unless (A) DTC (i)
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security Certificate or (ii) has ceased to be a
Clearing Agency registered under the Exchange Act or (B) there shall have
occurred and be continuing a default by the Company in respect to its
obligations under one or more Purchase Contracts.
(c) Subject to clause (b) above, any exchange of a Global Security
Certificate for other Security Certificates may be made in whole or in part,
and all Security Certificates issued in exchange for a Global Security
Certificate or any portion thereof shall be registered in such names as DTC
shall direct.
(d) Every Security Certificate authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security Certificate or any portion thereof, whether pursuant to this Section,
Section 3.04, 3.06, 5.10 or 8.5 or otherwise, shall be authenticated, executed
on behalf of the Holders and delivered in the form of, and shall be, a Global
Security Certificate, unless such Security Certificate is registered in the
name of a Person other than the Depositary for such Global Security
Certificate or a nominee thereof.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Security
Certificates.
If any mutilated Security Certificate is surrendered to the
Agent, the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and make available for delivery
in exchange therefor, a new Security Certificate, evidencing the same number
of Securities and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security Certificate, and (ii) such security or indemnity as may be required
by them to save each of them and any agent of any of them harmless, then, in
the absence of notice to the Company or the Agent that such Security
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holder, and make available for delivery to the Holder, in lieu
of any such destroyed, lost or stolen Security Certificate, a new Security
Certificate, evidencing the same number of Securities and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder, and deliver to the
Holder, a Security Certificate on or after a Bankruptcy Date or a Settlement
Date.
Upon the issuance of any new Security Certificate under this
Section, the Company and the Agent may require the payment by the Holder of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Agent) connected therewith.
Every new Security Certificate issued pursuant to this Section
3.004 in lieu of any destroyed, lost or stolen Security Certificate shall
constitute an original additional contractual obligation of the Company and of
the Holder, whether or not the destroyed, lost or stolen Security Certificate
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits and be subject to all the obligations of this Agreement equally and
proportionately with any and all other Security Certificates delivered
hereunder.
The provisions of this Section 3.004 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or settlement of mutilated, destroyed, lost or stolen Security
Certificates.
Section 3.07. Persons Deemed Owners.
Prior to due presentment of a Security Certificate for
registration of transfer, the Company and the Agent, and any agent of the
Company or the Agent, may treat the Person in whose name such Security
Certificate is registered as the owner of the Securities evidenced thereby,
for the purpose of receiving payments of interest on the Treasury Notes,
receiving payments of Contract Fees and any Deferred Contract Fees, delivery
of the Treasury Notes, performance of the Purchase Contracts and for all other
purposes whatsoever, whether or not the payment of interest on the Treasury
Notes or any Contract Fees payable in respect of the Purchase Contracts
constituting a part of the Securities evidenced thereby shall be overdue and
notwithstanding any notice to the contrary, and neither the Company nor the
Agent, nor any agent of the Company or the Agent, shall be affected by notice
to the contrary.
Notwithstanding the foregoing, with respect to any Global
Security Certificate, nothing herein shall prevent the Company, the Agent or
any agent of the Company or the Agent, from giving effect to any written
certification, proxy or other authorization furnished by DTC, as a Holder,
with respect to such Global Security Certificate or impair, as between DTC and
the Beneficial Owners, the operation of customary practices governing the
exercise of rights of DTC as Holder of such Global Security Certificate.
Section 3.08. Cancellation.
All Security Certificates surrendered for delivery of shares of
Common Stock on or after the Final Settlement Date or an earlier Acceleration
Date, transfer of Treasury Notes after the occurrence of a Bankruptcy Event or
Sale of Assets or pursuant to a Holder's Early Settlement or registration of
transfer or exchange shall, if surrendered to any Person other than the Agent,
be delivered to the Agent and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Agent for
cancellation any Security Certificates previously authenticated, executed and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Security Certificates so delivered shall, upon Issuer
Order, be promptly cancelled by the Agent. No Security Certificates shall be
authenticated, executed on behalf of the Holder and delivered in lieu of or in
exchange for any Security Certificates cancelled as provided in this Section,
except as expressly permitted by this Agreement. All cancelled Security
Certificates held by the Agent shall be disposed of as directed by Issuer
Order, except the Agent itself shall not be required to destroy the Security
Certificates.
If the Company or any Affiliate of the Company shall acquire any
Security Certificate, such acquisition shall not operate as a cancellation of
such Security Certificate unless and until such Security Certificate is
delivered to the Agent cancelled or for cancellation.
Section 3.09. Securities Not Separable.
Notwithstanding anything contained herein or in the Security
Certificates to the contrary, for so long as the Purchase Contract comprising a
portion of a Security remains in effect, such Security shall not be separable
into its constituent parts, for purposes of transfer or exchange of such
Security, and the rights and obligations of the Holder of such Security in
respect of the Treasury Notes and Purchase Contracts comprising such Security
may be acquired, and may be transferred and exchanged, only as a Security.
Other than a Security Certificate evidencing a Security, no Holder of a
Security, or any transferee thereof, shall be entitled to receive a certificate
evidencing the ownership of Treasury Notes or the rights and obligations of
the Holder and the Company under a Purchase Contract for so long as the
Purchase Contract underlying the Security remains in effect.
Section 3.10. No Consent to Assumption.
Each Holder of a Security, by acceptance thereof, shall be
deemed expressly to have withheld any consent to the assumption under Section
365 of the Bankruptcy Code or otherwise, of the Purchase Contract by the
Company or its trustee in the event that the Company becomes the debtor under
the Bankruptcy Code.
Section 3.11. Cusip Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Agent shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of
Acceleration and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such Acceleration shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Agent of any change in the CUSIP numbers.
ARTICLE 4
The Treasury Notes
Section 4.01. Payment of Interest; Interest Rights Preserved.
Interest on any Treasury Note which is paid on any Payment Date
shall, subject to receipt thereof by the Agent from the Collateral Agent as
provided by the terms of the Pledge Agreement, be paid to the Person in whose
name the Security Certificate (or one or more Predecessor Security
Certificates) of which such Treasury Note is a part is registered at the close
of business on the Record Date next preceding such Payment Date. On the first
Payment Date, the Agent shall pay, subject to receipt from the Collateral
Agent, to the Holders the accrued interest on the Treasury Notes for the period
from November 1, 1996 to November 6, 1996 as part of the interest payment on
the Treasury Notes.
Each Security Certificate evidencing Treasury Notes delivered
under this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Security Certificate shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by the Treasury Notes
underlying such other Security Certificate.
In the case of any Security with respect to which settlement of
the underlying Purchase Contract is effected on a Settlement Date after any
Record Date and on or prior to the next succeeding Payment Date, interest on
the Treasury Notes underlying such Security otherwise payable on such Payment
Date shall be payable on such Payment Date notwithstanding such settlement,
and such interest shall, subject to receipt thereof by the Agent, be paid to
the Person in whose name the Security Certificate (or one or more Predecessor
Security Certificates) is registered at the close of business on the Record
Date.
Section 4.02. Transfer of Treasury Notes upon Certain Events or
Sale of Treasury Notes.
(a) Upon the occurrence of a Bankruptcy Event or Sale of Assets
and the transfer to the Agent of the Treasury Notes underlying the Securities
pursuant to the terms of the Pledge Agreement, the Agent shall request
transfer instructions with respect to such Treasury Notes from each Holder of
Securities by written request mailed to such Holder at his address as it
appears in the Security Register, in respect of the Treasury Notes underlying
the Security Certificate held by such Holder. Upon surrender to the Agent of a
Security Certificate with such transfer instructions in proper form for
transfer of the Treasury Notes by Federal Reserve Bank-Wire or other
appropriate procedure, subject to the receipt of the Treasury Notes, the Agent
shall transfer the Treasury Notes evidenced by such Security Certificate to
such Holder in accordance with such instructions within three Business Days.
If a Security Certificate is not duly surrendered to the Agent with appropriate
transfer instructions, the Agent shall hold the Treasury Notes evidenced by
such Security Certificate as custodian for the Holder of such Security
Certificate.
(b) In the event of an Acceleration of Securities, Holders of
Securities so accelerated may elect to pay to the Company through the Agent by
no later than 5:00 p.m., New York City time on the third Business Day
immediately preceding the Acceleration Date in immediately available funds an
amount in U.S. dollars equal to the Stated Amount per Security so accelerated.
Holders may make the election provided in this paragraph (b) only in integral
multiples of 400 Securities. Upon Surrender to the Agent of a Security
Certificate with such transfer instructions in proper form for transfer of the
Treasury Notes by Federal Reserve Bank-Wire or other appropriate procedure,
along with the payment described in the previous sentence, subject to receipt
from the Collateral Agent, the Agent shall transfer the Treasury Notes
evidenced by such Security Certificate to such Holder in accordance with such
instructions within three Business Days of such payment. If payment is made in
accordance with the first sentence of this paragraph (b), the Company will
issue the number of shares of Common Stock equal to the Stated Amount for the
Securities accelerated on the Acceleration Date. The Company will also pay in
cash on the Acceleration Date accrued Contract Fees and Deferred Contract
Fees, if any, to holders of Securities who elect to pay the Stated Amount in
cash upon an Acceleration as provided in this Section.
(c) Because Holders may only elect to make a payment in cash
pursuant to paragraph (b) above in integral multiples of 400 Securities,
Treasury Notes shall be transferred only in denominations of $15,000 and
integral multiples thereof. Any Securities accelerated which are not in
integral multiples of 400 shall be settled in shares of Common Stock pursuant
to Section 5.8.
(d) In the case of an Acceleration of Securities, the Agent on
behalf of each Holder (other than Holders that, pursuant to an election made in
accordance with paragraph (b) of this Section, have paid the Stated Amount in
immediately available funds not later than 5:00 p.m., New York City time on
the third Business Day immediately preceding the Acceleration Date) will sell
on the second Business Day immediately preceding the Acceleration Date the
Treasury Notes underlying each such Holder's Securities to or through one or
more U.S. government securities dealers selected by the Company at the then
prevailing prices and automatically apply on the Acceleration Date, out of the
proceeds of such sale (excluding premium and accrued interest on the Treasury
Notes), an amount equal to the Stated Amount to satisfy in full each such
Holder's obligation to purchase the Common Stock from the Company on the
Acceleration Date. Any excess proceeds (in respect of premium on the sale of
the Treasury Notes) will be paid to such Holder. In the event that the
proceeds from the sale of such Treasury Notes (exclusive of accrued interest
on the Treasury Notes) is less than the Stated Amount, such proceeds
nevertheless will satisfy in full each such Holder's obligation to purchase the
Common Stock from the Company on the Acceleration Date. Amounts in respect of
accrued interest on the Treasury Notes will be paid to each such Holder on the
Acceleration Date. The proceeds of such sales shall be after deduction by the
Agent of all commissions and other out-of-pocket transaction costs incurred in
connection with the sale of such Treasury Notes and, until the net proceeds of
such sale or sales have been distributed to Holders of the Securities, the
Agent shall hold such proceeds as custodian for the Holders of Securities.
Such proceeds shall be held by the Agent uninvested without liability to any
Person for interest or other compensation thereon.
ARTICLE 5
The Purchase Contracts
Section 5.01. Purchase of Shares of Common Stock on the Final Settlement Date.
Each Purchase Contract shall obligate the Holder of the related
Security to purchase, and the Company to sell, on the Final Settlement Date at
a price equal to the Stated Amount, a number of shares of Common Stock equal
to the Settlement Rate on the Final Settlement Date, unless, on or prior to
the Final Settlement Date, there shall have occurred a Bankruptcy Event , Sale
of Assets, an Acceleration or a Holder's Early Settlement with respect to the
Security of which such Purchase Contract is a part.
Each Holder of a Security Certificate evidencing Securities, by
his acceptance thereof, authorizes the Agent to enter into and perform the
related Purchase Contracts on his behalf as his attorney-in-fact, agrees to be
bound by the terms and provisions thereof, covenants and agrees to perform his
obligations under such Purchase Contracts, consents to the provisions hereof,
authorizes the Agent as his attorney-in-fact to enter into and perform the
Pledge Agreement on his behalf as his attorney-in-fact, and consents to and
agrees to be bound by the Pledge of the Treasury Notes underlying such
Security Certificate pursuant to the Pledge Agreement. Each Holder of a
Security, by his acceptance thereof, further covenants and agrees, that, to the
extent and in the manner provided in Section 5.4 and the Pledge Agreement, but
subject to the terms thereof, payments in respect of principal of the Treasury
Notes on the Final Settlement Date shall be paid by the Collateral Agent to
the Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
payments.
Upon registration of transfer of a Security Certificate
evidencing Purchase Contracts, the transferee shall be bound (without the
necessity of any other action on the part of such transferee), under the terms
of this Agreement, the Purchase Contracts evidenced thereby and the Pledge
Agreement and the transferor shall be released from the obligations under the
Purchase Contracts evidenced by the Security Certificates so transferred. The
Company covenants and agrees, and each Holder of a Security Certificate, by
his acceptance thereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
Section 5.02. Contract Fees.
Subject to Section 5.3, the Company shall pay by 12:00 noon New
York City time to the Agent, on each Payment Date, the Contract Fees payable
in respect of each Purchase Contract for the benefit of the Person in whose
name the Security Certificate (or one or more Predecessor Security
Certificates) evidencing such Purchase Contract is registered at the close of
business on the Record Date next preceding such Payment Date. The Contract
Fees will be payable at the office of the Agent in The City of New York
maintained for that purpose or, at the option of the Company, by check mailed
to the address of the Person entitled thereto at such address as it appears on
the Security Register.
Each Security Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any other Security
Certificate shall carry the rights to Contract Fees accrued and unpaid, and to
accrue, which were carried by the Purchase Contracts evidenced by such other
Security Certificate.
In the case of any Security with respect to which settlement of
the underlying Purchase Contract is effected on a Settlement Date after any
Record Date and on or prior to the next succeeding Payment Date, Contract Fees
otherwise payable on such Payment Date shall be payable on such Payment Date
notwithstanding such settlement, and such Contract Fees shall be paid to the
Person in whose name the Security Certificate evidencing such Security (or one
or more Predecessor Security Certificates) is registered at the close of
business on such Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Security with respect to
which settlement of the underlying Purchase Contract is effected on a
Settlement Date (other than a Holder's Early Settlement Date), Contract Fees
that would otherwise be payable after such Settlement Date with respect to the
Purchase Contract underlying such Security shall not be payable. The right to
receive Contract Fees including accrued and unpaid Contract Fees and Deferred
Contract Fees, if any, shall terminate upon the occurrence of a Bankruptcy
Event, and the Company shall have no further obligations with respect thereto.
The Company's obligations with respect to Contract Fees shall
rank equally and pari passu with all other senior and unsubordinated
liabilities of the Company.
Section 5.03. Deferral of Payment Dates for Contract Fees.
The Company shall have the right, at any time prior to the Final
Settlement Date, an Acceleration Date applicable to a Holder's Securities or
Sale of Assets Date, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date (on a pro rata basis among all
Outstanding Securities), but only if the Company shall give the Holders and
the Agent written notice of its election to defer such payment (specifying the
amount to be deferred and the period of deferment) at least ten Business Days
prior to the earlier of (i) the next succeeding Payment Date or (ii) the date
the Company is required to give notice of the Record Date or Payment Date with
respect to payment of such Contract Fees to the NYSE or other applicable
self-regulatory organization or to Holders of the Securities, but in any event
not less than two Business Days prior to such Record Date. Any Contract Fees
so deferred shall bear additional Contract Fees thereon at the rate of 1.0% per
annum (computed on the basis of the actual number of days elapsed in a year
of 365 or 366 days, as the case may be), compounding on each succeeding
Payment Date, until paid in full (such deferred installments of Contract Fees
together with the additional Contract Fees accrued thereon, are referred to
herein as the "Deferred Contract Fees"). Deferred Contract Fees shall be due
on the next succeeding Payment Date except to the extent that payment is
deferred further in the notice of election pursuant to this Section. The
Company may pay Deferred Contract Fees in whole or in part on any Payment Date
(on a pro rata basis among all Outstanding Securities). No Contract Fees or
Deferred Contract Fees may be deferred to a date that is after the Final
Settlement Date or a Sale of Assets Date or, with respect to any particular
Purchase Contract, the Acceleration thereof.
In the event the Company elects to defer the payment of
Contract Fees on the Purchase Contract until the Final Settlement Date, a Sale
of Assets Date, a Company Acceleration Date or a Mandatory Acceleration Date
(or a date prior to such dates as set forth in its written notice referred to
in the preceding paragraph) the Company shall make a cash payment, on the date
such Deferred Contract Fees become due and payable, equal to the aggregate
amount of Deferred Contract Fees payable to a Holder.
In the event the Company exercises its option to defer the
payment of Contract Fees, then, until the Deferred Contract Fees have been
paid in full, the Company shall not declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchase or acquisitions of shares of Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit
plans now or hereafter in effect or the satisfaction by the Company of its
obligations pursuant to any contract or security now or hereafter outstanding
requiring the Company to purchase shares of Common Stock, (ii) as a result of
a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock (iii) the purchase of
fractional shares in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (iv) the payment of accrued dividends (and cash in
lieu of fractional shares) upon the conversion of any shares of preferred
stock of the Company as may be outstanding from time to time, in accordance
with the terms of such stock or (v) dividends on its capital stock paid in
shares of capital stock) or make any guarantee payments with respect to the
foregoing.
Section 5.04. Payment of Purchase Price.
Unless a Holder settles the underlying Purchase Contract
through the early delivery of cash to the Agent in the manner described in
Sections 4.2(b), 5.08 or 5.10, the purchase price for the shares of Common
Stock purchased pursuant to a Purchase Contract shall be paid by application
of payments received by the Company on the Final Settlement Date or an earlier
Acceleration Date from, as the case may be, either (i) the Collateral Agent
pursuant to the Pledge Agreement in respect of the principal of the Treasury
Notes Pledged to secure the obligations of the relevant Holder under such
Purchase Contract or (ii) the proceeds of the sale of the Treasury Notes
underlying the Holder's Securities pursuant to Section 4.02(d). Such
application shall satisfy in full (whether or not the principal amount of the
Treasury Notes then equals the Stated Amount) the obligations under such
Purchase Contract of the Holder of the Security of which such Purchase
Contract is a part. The Company shall not be obligated to issue any shares of
Common Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment in full of the
aggregate purchase price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
Section 5.05. Issuance of Common Stock.
Unless a Bankruptcy Event or Sale of Assets shall have occurred
on or prior to the Final Settlement Date or an earlier Acceleration Date, on
the Final Settlement Date or an earlier Acceleration Date, upon the Company's
receipt of payment in full of the purchase price for the shares of Common Stock
purchased by the Holders (whether by application of the principal of the
Treasury Notes on the Final Settlement Date or the proceeds of the sale of
Treasury Notes as provided in Section 4.02(d) or the Holder's election to pay
the Stated Amount for such Holder's Securities in cash pursuant to Section
4.02(b)), and in payment of consideration set forth in Section 5.8(b)(iii), if
any, and, if the Company has elected to make such payment in shares of Common
Stock to the Holders, the Company shall issue and deposit with the Agent, for
the benefit of the Holders, one or more certificates representing the shares
of Common Stock registered in the name of the Agent (or its nominee) as
custodian for the Holders (such certificates for shares of Common Stock,
together with any dividends or distributions with respect thereto, being
hereinafter referred to as the "Final Settlement Fund" or "Acceleration
Settlement Fund" as applicable) to which the Holders are entitled hereunder.
Subject to the foregoing, upon surrender of a Security Certificate to the Agent
on or after the Final Settlement Date or earlier Acceleration Date, together
with settlement instructions thereon duly completed and executed, the Holder
of such Security Certificate shall be entitled to receive in exchange therefor
a certificate representing that number of whole shares of Common Stock which
such Holder is entitled to receive pursuant to the provisions of this Article
Five (after taking into account all Securities then held by such Holder)
together with cash in lieu of fractional shares as provided in Section 5.11 or
any other cash payments and any dividends or distributions with respect to
such shares constituting part of the Final Settlement Fund or Acceleration
Settlement Fund, as applicable, but without any interest thereon, and the
Security Certificate so surrendered shall forthwith be canceled. Such shares
shall be registered in the name of the Holder or the Holder's designee as
specified in the settlement instructions on the Security Certificate. If any
shares of Common Stock issued in respect of a Purchase Contract are to be
registered to a Person other than the Person in whose name the Security
Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Security Certificate
evidencing such Purchase Contract or has established to the satisfaction of
the Company that such tax either has been paid or is not payable.
Section 5.06. Settlement Rate; Adjustment of Settlement Rate for
Dividends, Distributions, Stock Splits, Etc.
(a) The Settlement Rate to be used to determine the number of
shares of Common Stock to be delivered on the Final Settlement Date or a
Mandatory Acceleration Date pursuant to Sections 5.01 and 5.08(b),
respectively, shall be initially one share of Common Stock for each Purchase
Contract, provided however, that such Settlement Rate shall be subject to
adjustment from time to time as provided below in this Section 5.06. All
adjustments to the Settlement Rate shall be calculated to the nearest 1/100th
of a share of Common Stock (with 5/1000th of a share being rounded to the next
lower 1/100th of a share). Such rate in effect at any time is herein called
the "Settlement Rate".
(b) If the Company shall either:
(i) pay a dividend or make a distribution with respect to
Common Stock in shares of Common Stock,
(ii) subdivide or split its outstanding shares of Common
Stock,
(iii) combine its outstanding shares of Common Stock into a
smaller number of shares, or
(iv) issue by reclassification of its shares of Common Stock
any shares of Common Stock of the Company
then, in any such event, the Settlement Rate in effect immediately prior
thereto shall be adjusted so that the holder of a Security shall be entitled
to receive on settlement of a Security, the number of shares of Common Stock
which such Holder would have owned or been entitled to receive after the
happening of any of the events described above had such Security been settled
at the Settlement Rate in effect immediately prior to such time. Such
adjustment shall become effective at the opening of business on the Business
Day next following the record date for determination of stockholders entitled
to receive such dividend or distribution in the case of a dividend or
distribution and shall become effective immediately after the effective time
in case of a subdivision, split, combination or reclassification. Any shares
of Common Stock issuable in payment of a dividend or distribution shall be
deemed to have been issued immediately prior to the close of business on the
record date for such dividend or distribution for purposes of calculating the
number of outstanding shares of Common Stock under clauses (c) and (d) below.
(c) If the Company shall issue rights or warrants to all holders of its
Common Stock entitling them (for a period not exceeding 45 days from the date
of such issuance) to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price per share of the Common
Stock on the record date for the determination of stockholders entitled to
receive such rights or warrants, then in each case the Settlement Rate shall
be adjusted by multiplying the Settlement Rate in effect immediately prior
thereto by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or warrants
immediately prior to such issuance, plus the number of additional shares of
Common Stock offered for subscription or purchase, and of which the
denominator shall be the number of shares of Common Stock outstanding on the
date of issuance of such rights or warrants, immediately prior to such
issuance, plus the number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase would purchase
at the Current Market Price per share of the Common Stock on the record date
for determining stockholders entitled to receive such right or warrants
(determined by multiplying such total number of shares by the exercise price
of such rights or warrants and dividing the product so obtained by such
Current Market Price). Shares of Common Stock owned by or held for the
account of the Company or another company of which a majority of the shares
entitled to vote in the election of directors are held, directly or
indirectly, by the Company shall not be deemed to be outstanding for purposes
of such computation. Such adjustment shall become effective at the opening of
business on the Business Day next following the record date for the
determination of stockholders entitled to receive such rights or warrants.
To the extent that shares of Common Stock are not delivered after the
expiration of such rights or warrants, the Settlement Rate shall be readjusted
to the Settlement Rate which would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made upon the basis of
delivery of only the number of shares of Common Stock actually delivered.
(d) If the Company shall pay a dividend or make a distribution to
all holders of its Common Stock of evidences of its indebtedness or other
assets (including shares of capital stock of the Company but excluding any cash
dividends or any distributions and dividends referred to in clause (b) above),
or shall distribute to all holders of its Common Stock rights or warrants to
subscribe for or purchase securities of the Company or any of its subsidiaries
(other than those referred to in clause (c) above), then in each such case the
Settlement Rate shall be adjusted by multiplying the Settlement Rate in effect
immediately prior to the date of such dividend or distribution by a fraction,
of which the numerator shall be the Current Market Price per share of Common
Stock on the record date for the determination of stockholders entitled to
receive such dividend or distribution, and of which the denominator shall be
such Current Market Price per share of Common Stock less the fair market value
(as determined by the Board of Directors of the Company, whose determination
shall be conclusive) as of such record date of the portion of the assets or
evidences of indebtedness so distributed, or of such subscription rights or
warrants, applicable to one share of Common Stock. Such adjustment shall
become effective on the opening of business on the Business Day next following
the record date for the determination of stockholders entitled to receive such
dividend or distribution.
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding (x) any
quarterly cash dividend on the Common Stock to the extent that the aggregate
cash dividend per share of Common Stock in any fiscal quarter does not exceed
the greater of (A) the amount per share of Common Stock of the next preceding
quarterly cash dividend on the Common Stock to the extent that such preceding
quarterly dividend did not require an adjustment of the Settlement Rate
pursuant to this Section 5.06(e) (as adjusted to reflect subdivisions or
combinations of the Common Stock), and (B) 3.75% of the arithmetic average of
the Closing Price of the Common Stock during the ten consecutive Trading Days
immediately prior to the date of declaration of such dividend, and (y) any
dividend or distribution in connection with the liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary), then, in such
case, the Settlement Rate shall be increased so that the same shall equal the
rate determined by multiplying the Settlement Rate in effect immediately prior
to the close of business on such record date by a fraction of which the
numerator shall be the Current Market Price of the Common Stock, and the
denominator shall be the Current Market Price of the Common Stock on the
record date less the amount of cash so distributed (and not excluded as
provided above) applicable to one share of Common Stock, such increase to be
effective immediately prior to the opening of business on the day following the
record date; provided, however, that in the event the portion of the cash so
distributed applicable to one share of Common Stock of the Company is equal
to or greater than the Current Market Price of the Common Stock of the Company
on the record date, in lieu of the foregoing adjustment, adequate provision
shall be made so that each holder of a Security shall have the right to
receive upon settlement of the Securities the amount of cash such Holder would
have received had such Holder settled each Security on the record date. In
the event that such dividend or distribution is not so paid or made, the
Settlement Rate shall again be adjusted to be the Settlement Rate which would
then be in effect if such dividend or distribution had not been declared. If
any adjustment is required to be made as set forth in this Section 5.06(e) as a
result of a distribution that is a quarterly dividend, such adjustment shall be
based upon the amount by which such distribution exceeds the amount of the
quarterly cash dividend permitted to be excluded pursuant hereto. If an
adjustment is required to be made as set forth in this Section 5.06(e) above as
a result of a distribution that is not a quarterly dividend, such adjustment
shall be based upon the full amount of the distribution.
(f)In case of a tender or exchange offer made by a Person other
than the Company or any subsidiary of the Company for an amount which
increases the offeror's ownership of Common Stock of the Company to more than
25% of the Common Stock outstanding and shall involve the payment by such
Person of consideration per share of Common Stock having a fair market value
(as determined by the Board of Directors of the Company, whose determination
shall be conclusive, and described in a Board Resolution) at the last time
(the "Expiration Time") tenders or exchanges may be made pursuant to such
tender or exchange offer (as it shall have been amended) that exceeds the
Current Market Price of the Common Stock on the Trading Day next succeeding
the Expiration Time, and in which, as of the Expiration Time, the Board of
Directors of the Company is recommending acceptance of the offer, the
Settlement Rate shall be increased so that the same shall equal the price
determined by multiplying the Settlement Rate in effect immediately prior to
the Expiration Time by a fraction of which the numerator shall be the sum of
(x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of shares of Common
Stock of the Company outstanding (less any Purchased Shares) on the Expiration
Time and the Current Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time, and the denominator shall be the number of
shares of Common Stock of the Company outstanding (including any tendered or
exchanged shares) on the Expiration Time multiplied by the Current Market
Price of the Common Stock on the Trading Day next succeeding the Expiration
Time, such increase to become effective immediately prior to the opening of
business on the day following the Expiration Time. In the event that such
Person is obligated to purchase shares pursuant to any such tender or exchange
offer, but such Person is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the
Settlement Rate shall again be adjusted to be the Settlement Rate which would
then be in effect if such tender or exchange offer had not been made.
Notwithstanding the foregoing, the adjustment described in this Section
5.06(f) shall not be made if, as of the Expiration Time, the offering
documents with respect to such offer disclose a plan or intention to cause the
Company to engage in a consolidation or merger of the Company or a sale of all
or substantially all of the assets of the Company.
(g) The "Current Market Price" per share of Common Stock on any
date of determination means the average of the daily Closing Prices for the
five consecutive Trading Days ending on and including the date of
determination of the Current Market Price (appropriately adjusted to take into
account the occurrence during said five-day period of any event that results in
an adjustment of the Settlement Rate); provided, however, that if the Closing
Price for the Trading Day next following such five-day period (the "next-day
closing price") is less than 95% of such average, then the Current Market
Price per share of Common Stock on such date of determination will be the
next-day closing price; and provided, further, that, for purposes of
calculating the Current Market Price in connection with any settlement of
Securities or any determination of an amount in cash payable in lieu of a
fraction of a share of Common Stock, if any adjustment of the Settlement Rate
pursuant to this Section 5.06 is effective as of any date during the period
beginning during the period beginning on the day after the date of
determination of the Current Market Price and ending on the date on which
Securities are to be settled with Common Stock, then the Current Market Price
as determined pursuant to the foregoing will be appropriately adjusted to
reflect such adjustment. If the Current Market Price is adjusted pursuant to
the immediately preceding proviso as a result of the effectiveness of an
adjustment to the Settlement Rate but the event requiring an adjustment of the
Settlement Rate does not occur prior to the settlement of the Securities, then
the Company may in its sole discretion elect to defer the following until
after the occurrence of such event: (1) issuing to the Holder of any
Securities settled the additional shares of Common Stock issuable upon such
settlement over and above the shares of Common Stock issuable upon such
settlement on the basis of the Current Market Price prior to adjustment; and
(2) paying to such Holder any amount in cash in lieu of a fractional share of
Common Stock pursuant to this Section 5.11. Notwithstanding the foregoing
provision of this Section 5.08(g) for purposes of any computation under
Section 5.6(f), the Current Market Price of the Common Stock of the Company on
any date shall be deemed to be the average of the daily Closing Prices per
share of Common Stock for such day and the next two succeeding Trading Days.
A "Trading Day" means a day on which the Common Stock (i) is not suspended
from trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (ii) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of the
Common Stock.
(h) Anything in this Section 5.06 notwithstanding, the Company
shall be entitled to make such upward adjustments in the Settlement Rate, in
addition to those required by this Section 5.06, as the Company in its
discretion shall determine to be advisable, in order that any stock dividends,
subdivision of shares, distribution of rights to purchase stock or securities,
or a distribution of securities convertible into or exchangeable for stock (or
any transactions which could be treated as any of the foregoing transactions
pursuant to Section 305 of the Internal Revenue Code of 1986, as amended)
hereafter made by the Company to its stockholders shall not be taxable.
(i) In any case in which this Section 5.06 shall require that an
adjustment in the Settlement Rate as a result of any event become effective at
the opening of business on the Business Day next following a Record Date and
Mandatory Acceleration Date or the Final Settlement Date pursuant to Sections
5.08(b) and 5.01, respectively, occurs after such Record Date, but before the
occurrence of such event, the Company may in its sole discretion elect to defer
the following until after the occurrence of such event:
(i) issuing to the Holder of any Securities settled the
additional shares of Common Stock issuable upon such settlement over and above
the shares of Common Stock issuable upon such settlement on the basis of the
Settlement Rate prior to adjustment; and
(ii) paying to such holder any amount in cash in lieu of a
fractional share of Common Stock pursuant to Section 5.11.
Section 5.07. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided,
the Company shall:
(i) forthwith compute the adjusted Settlement Rate in
accordance with Section 5.06 and prepare a certificate signed by the Chief
Executive Officer, the Chairman, the President, any Vice President or the
Treasurer of the Company setting forth the adjusted Settlement Rate, the
method of calculation thereof in reasonable detail and the facts requiring
such adjustment and upon which such adjustment is based, and file such
certificate forthwith with the Agent for the Securities and the transfer agent
or agents for the Common Stock; and
(ii) mail a notice stating that the Settlement Rate has been
adjusted, the facts requiring such adjustment and upon which such adjustment
is based and setting forth the adjusted Settlement Rate to the Agent and the
Holders of record of the outstanding Securities at or prior to the time the
Company mails an interim statement to its stockholders covering the
quarter-yearly period during which the facts requiring such adjustment
occurred, but in any event within 45 days of the end of such quarter-yearly
period.
(b) The Agent shall not at any time be under any duty or
responsibility to any holder of Securities to determine whether any facts exist
which may require any adjustment of the Settlement Rate, or with respect to
the nature or extent or calculation of any such adjustment when made, or with
respect to the method employed in making the same. The Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property, which may at the
time be issued or delivered with respect to any Purchase Contract; and the
Agent makes no representation with respect thereto. The Agent shall not be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock pursuant to a Purchase Contract or to comply with any
of the duties, responsibilities or covenants of the Company contained in this
Article.
Section 5.08. Acceleration; Notice.
(a) Prior to a Mandatory Acceleration Date, a Bankruptcy Event
Date, Sale of Assets Date or the Final Settlement Date, the Company shall have
the right at any time or from time to time to accelerate, in whole or in part,
the outstanding Securities (a "Company Acceleration") (subject to the notice
provisions set forth in this Section). The Company may not exercise its right
to accelerate the Securities unless the Current Market Price determined as of
the second Business Day immediately preceding the Notice Date is equal to or
exceeds the Company Acceleration Price applicable to such Notice Date. Upon
the effective date of such acceleration ( a "Company Acceleration Date"), the
Agent shall sell, pursuant to Section 4.02(d), at the direction of the Company
subject to receipt thereof, the Treasury Notes underlying the Securities
accelerated unless the Holder has paid the Stated Amount in cash in accordance
with an election made pursuant to Section 4.2(b). The Company shall then
deliver to the Agent for the benefit of the Holders thereof in exchange for
each such Security accelerated, (i) a number of fully paid and non-assessable
shares of Common Stock determined by dividing the Company Acceleration Price
in effect on the Company Acceleration Date by the Current Market Price of the
Common Stock determined as of the second Business Day immediately preceding
the Notice Date applicable to such Company Acceleration Date and (ii) an
amount in cash equal to all accrued and unpaid Contract Fees and Deferred
Contract Fees, if any, on such Security to and including such Company
Acceleration Date (and Contract Fees and Deferred Contract Fees, if any, shall
cease to accrue on each Security accelerated as of such date). Accrued
interest on the Treasury Notes (and premium in respect of the sale of Treasury
Notes) shall be paid to Holders as provided in Section 4.02(d).
(b) Immediately prior to the effectiveness of a merger or
consolidation of, or a statutory share exchange involving, the Company that
results in the conversion or exchange of the Common Stock into, or the right
to receive, other securities or other property (whether of the Company or any
other entity) (any such merger, consolidation or share exchange being referred
to herein as a "Merger or Consolidation"), each outstanding Security shall
automatically be settled for (a "Mandatory Acceleration"), unless sooner
accelerated:
(i) fully paid and non-assessable shares of Common Stock at
the Settlement Rate in effect on the effective time on the date of any Merger
or Consolidation (the "Mandatory Acceleration Date"); plus
(ii) an amount in cash equal to all accrued and unpaid
Contract Fees and Deferred Contract Fees, if any, on such Securities to but
excluding the Mandatory Acceleration Date (and Contract Fees and Deferred
Contract Fees shall cease to accrue as of the Mandatory Acceleration Date);
plus
(iii) an amount in cash (except as provided below) initially
equal to $8.664, declining by $.008060 on each day following November 6, 1996
(computed on the basis of a 360-day year of twelve 30-day months) to $.4831 on
August 31, 1999 and equal to zero thereafter, in each case determined with
reference to the Mandatory Acceleration Date.
Accrued interest on the Treasury Notes shall be paid to Holders
as provided in Section 4.02(d). At the option of the Company and provided that
the Company has sufficient authorized and reserved shares of Common Stock, it
may deliver to the Agent, for the benefit of the Holders, on the Mandatory
Acceleration Date in lieu of some or all of the cash consideration described in
clause (iii) above, fully paid and non-assessable shares of Common Stock. The
number of shares of Common Stock to be delivered in lieu of any cash
consideration described in such clause (iii) shall be determined by dividing
the amount of cash consideration that the Company has elected to deliver in
Common Stock by the Current Market Price of the Common Stock determined as of
the second Business Day immediately preceding the Notice Date applicable to
such Mandatory Acceleration Date.
(c) The Company will provide notice of the Final Settlement Date or
any earlier Acceleration of Securities (including any potential acceleration
upon the effectiveness of a Merger or Consolidation) to the Agent and Holders
of record of the Securities to be accelerated not less than 30 nor more than 60
days prior to the Final Settlement Date or the date fixed for such
Acceleration; provided, however, that if the effectiveness of a Merger or
Consolidation makes it impracticable to provide at least 30 days' notice, the
Company shall provide such notice as soon as practicable prior to such
effectiveness. Such notice shall be provided by mailing notice of the Final
Settlement Date or any earlier Acceleration first class postage prepaid, to
each Holder of record of the Securities to be accelerated, at such Holder's
address as it appears on the Security Register of the Company, and by
publishing notice thereof in The Wall Street Journal or The New York Times or,
if neither such newspaper is then being published, any other daily newspaper
of national circulation (each, an "Authorized Newspaper"). Each such mailed
or published notice shall state, as appropriate, the following:
(i) the Final Settlement Date or the Acceleration Date;
(ii) the number of Securities to be accelerated and, if less
than all the Securities held by any Holder are to be accelerated, the number
of such Securities to be accelerated;
(iii) the Settlement Rate or the Company Acceleration Price, as
applicable, and, if applicable, the Current Market Price to be used to
calculate the number of shares of Common Stock deliverable upon Acceleration;
(iv) whether the Company is exercising any option to deliver
shares of Common Stock in lieu of any cash (in the case of a Mandatory
Acceleration) and the Current Market Price to be used to calculate the number
of such shares of Common Stock;
(v) the place or places where certificates for such
Securities are to be surrendered for Acceleration;
(vi) whether the Company is depositing with a bank or trust
company on or before the Acceleration Date, the shares of Common Stock, and
cash, if any, payable by the Company pursuant to this Section 5.08 and the
proposed date of such deposit; and
(vii) the amount of accrued and unpaid Contract Fees (and
Deferred Contract Fees, if any) payable per Security to be accelerated, and
that Contract Fees and Deferred Contract Fees on Securities to be accelerated
will cease to accrue on such Acceleration Date.
(d)The Company's obligation to deliver shares of Common Stock
and provide funds in accordance with this Section 5.8 shall be deemed fulfilled
if, on or before an Acceleration Date, the Company shall deposit, with a bank
or trust company having an office or agency and doing business in the Borough
of Manhattan in The City of New York and having a capital and surplus of at
least $50,000,000, such number of shares of Common Stock and funds as are
required to be delivered by the Company pursuant to this Section 5.8 upon the
occurrence of the related Acceleration (including the payment of fractional
share amounts), together with funds sufficient to pay all accrued and unpaid
Contract Fees and Deferred Contract Fees, if any, to be settled as required by
this Section 5.08, in trust for the account of the Holders of the Securities
to be settled (and so as to be and continue to be available therefor), with
irrevocable written instructions and authority to such bank or trust company
that such shares and funds be delivered upon settlement of the Securities.
Any shares of Common Stock and funds so deposited and unclaimed by Holders of
Securities at the end of six years after such Acceleration Date (together with
any interest thereon which shall be allowed by the bank or trust company with
which such deposit was made) shall be paid by such bank or trust company to
the Company, after which the Holder or Holders of such Securities so settled
shall look only to the Company for delivery of such shares of Common Stock or
funds.
Each holder of Securities to be settled shall surrender the
certificates evidencing such shares to the Company at the place designated in
the notice of such Acceleration and shall thereupon be entitled to receive
certificates evidencing shares of Common Stock, and cash, if any, payable
pursuant to this Section 5.8, following such surrender and following the date
of such Acceleration. In case fewer than all the Securities represented by
any such surrendered certificate are accelerated, a new certificate shall be
issued at the expense of the Company representing the unaccelerated
Securities. If such notice of Acceleration shall have been duly given, and if
on the date fixed for Acceleration, shares of Common Stock and funds, if any,
necessary for the settlement of Securities on such date shall have been either
set aside by the Company separate and apart from its other funds or assets in
trust for the account of the Holders of the Securities so to be settled (and
so as to be and continue to be available therefor) or deposited with a bank or
trust company as provided above, then, notwithstanding that the certificates
evidencing any Securities settled shall not have been surrendered, the
Securities represented thereby so settled shall be deemed no longer
outstanding, Contract Fees and Deferred Contract Fees, if any, with respect to
the Securities so settled shall cease to accrue after the date fixed for
Acceleration and all rights with respect to the Securities so settled shall
forthwith after such date cease and terminate, except for the right of the
Holders to receive the shares of Common Stock and cash, if any, payable
pursuant to this Section 5.8, without interest upon surrender of their
certificates therefor.
(e) If fewer than all outstanding Securities are to be
accelerated, the Securities to be accelerated shall be selected by the Agent
by lot.
Section 5.09. Bankruptcy Event or Sale of Assets; Notice.
The Purchase Contracts and the obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
of the Holders to receive and the obligation of the Company to pay any Contract
Fees or any Deferred Contract Fees, shall immediately and automatically
terminate, without the necessity of any notice or action by any Holder, the
Agent or the Company, if, on or prior to the Final Settlement Date or an
earlier Acceleration Date with respect to any particular Security, a Bankruptcy
Event or Sale of Assets shall have occurred; provided that, in the event of a
Sale of Assets, the Company will pay all accrued and unpaid Contract Fees and
Deferred Contract Fees, if any, to Holders on the tenth Business Day following
the Sale of Assets Date. Upon and after the occurrence of a Bankruptcy Event
or Sale of Assets, the Securities shall thereafter represent the right to
receive and take possession of the Treasury Notes forming a part of such
Securities in accordance with the provisions of Section 4.2(a) and the Pledge
Agreement. Upon the occurrence of a Bankruptcy Event or Sale of Assets, the
Company shall promptly but in no event after two Business Days thereafter give
written notice to the Agent, the Collateral Agent and to the Holders, at their
addresses as they appear in the Security Register.
Section 5.10. Holder's Early Settlement.
(a) Subject to and upon compliance with the provisions of this
Section 5.10, at the option of the Holder thereof, any Purchase Contracts in
integral multiples of 400 Securities may be settled early ("Holder's Early
Settlement") as provided herein. In order to exercise the right to effect
Holder's Early Settlement, the Holder of the Security Certificate shall deliver
such Security Certificate to the Agent at the Corporate Trust Office duly
endorsed for transfer to the Company or in blank with the form (or a writing
substantially similar to the form) of Election to Settle Early on the reverse
thereof duly completed and accompanied by payment in the form of a certified
or cashier's check payable to the order of the Company in immediately
available funds in a U.S. dollar amount or by wire transfer of Federal funds
(the "Holder's Early Settlement Amount") equal to the product of (A) the
Stated Amount times (B) the number of Purchase Contracts with respect to which
the Holder has elected to effect Holder's Early Settlement. If such delivery
is made with respect to any Securities during the period from the close of
business on any Record Date next preceding any Payment Date to the opening of
business on such Payment Date, the amount equal to the sum of (x) the Contract
Fees and Deferred Contract Fees, if any, payable on such Payment Date with
respect to such Purchase Contracts plus (y) the interest on the related
Treasury Notes payable on such Payment Date shall be paid on the next
succeeding Payment Date applicable to the Prepaid Securities. If the
foregoing requirements are first satisfied with respect to Purchase Contracts
underlying any Securities at or prior to 5:00 p.m., New York City time, on a
Business Day, such day shall be the "Holder's Early Settlement Date" with
respect to such Securities and if such requirements are first satisfied after
5:00 p.m., New York City time, on a Business Day or on a day that is not a
Business Day, the "Holder's Early Settlement Date" with respect to such
Securities shall be the next succeeding Business Day.
(b) The Company shall cause the Treasury Notes deliverable upon a
Holder's Early Settlement to be released from the Pledge by the Collateral
Agent and transferred to the Agent, for delivery to the Holder thereof or its
designee, no later than 5:00 p.m. on the third Business Day after the
applicable Holder's Early Settlement Date.
(c) Upon Holder's Early Settlement and subject to receipt from the
Collateral Agent of the Treasury Notes, the Agent shall, in accordance with
the written instructions provided by the Holder thereof on the form (or a
writing substantially similar to the form) of Election to Settle Early on the
reverse of the Security Certificate evidencing the related Securities, transfer
the Treasury Notes forming a part of such Securities to the applicable Holder
as provided in paragraph (b) above.
(d)Upon a Holder's Early Settlement, the Company shall issue and
deliver to the Agent at the Corporate Trust Office a certificate or
certificates representing a face amount of Prepaid Securities equal to the
aggregate Stated Amount of the Securities subject to such Holder's Early
Settlement and bearing all rights in respect of accrued and unpaid Contract
Fees and Deferred Contract Fees, if any; and the Agent shall transfer such
Prepaid Securities to the Holders no later than 5:00 p.m. on the third
Business Day after the applicable Holder's Early Settlement Date.
(e) Upon the transfer of Treasury Notes as provided in paragraph
(c) of this Section and the delivery of Prepaid Securities as provided in
paragraph (d) of this Section, the Purchase Contract which has been thereby
settled shall cease to be in effect.
(f) In the event that a Holder's Early Settlement is effected with
respect to less than all the Securities evidenced by a Security Certificate
upon such Holder's Early Settlement, the Company shall execute and the Agent
shall authenticate, countersign and deliver to the Holder thereof, at the
expense of the Company, a Security Certificate evidencing the Securities as to
which Holder's Early Settlement was not effected.
Section 5.11. No Fractional Shares.
No fractional shares or scrip representing fractional shares of
Common Stock shall be issued or delivered on the Final Settlement Date or
earlier Acceleration Date upon settlement of the Purchase Contracts or with
respect to the payment of any amounts in shares of Common Stock pursuant to
clause (iii) of Section 5.8(b) on a Mandatory Acceleration (if the Company
elects to pay such amounts in shares of Common Stock in lieu of cash). If
Security Certificates evidencing more than one Purchase Contract shall be
surrendered for settlement at one time by the same Holder, the number of full
shares of Common Stock which shall be delivered upon settlement shall be
computed on the basis of the aggregate number of Purchase Contracts evidenced
by the Security Certificates so surrendered. Instead of any fractional share of
Common Stock which would otherwise be deliverable upon settlement of any
Purchase Contracts on the Final Settlement Date or an earlier Acceleration
Date or with respect to the payment of any amounts in shares of Common Stock
pursuant to clause (iii) of Section 5.8(b) on a Mandatory Acceleration (if the
Company elects to pay such amounts in shares of Common Stock in lieu of cash),
the Company, through the Agent, shall make a cash payment in respect of such
fractional interest in an amount equal to the value of such fractional shares
at the Current Market Price of the Common Stock determined as of the second
Business Day immediately preceding the relevant Notice Date or Final
Settlement Date, as applicable. The Company shall provide the Agent from time
to time with sufficient funds to permit the Agent to make all cash payments
required by this Section 5.11 in a timely manner.
Section 5.12. Charges and Taxes.
The Company will pay all stock transfer and similar taxes
attributable to the initial issuance and delivery of the shares of Common
Stock pursuant to the Purchase Contracts and in payment of any amounts in
shares of Common Stock pursuant to clause (iii) of Section 5.8(b) (in the case
of the Company's election to pay such amounts in Common Stock upon a Mandatory
Acceleration) or the Company Acceleration Prices; provided, however, that the
Company shall not be required to pay any such tax or taxes which may be
payable in respect of any exchange of or substitution for a Security
Certificate evidencing a Purchase Contract or any issuance of a share of
Common Stock in a name other than that of the registered Holder of a Security
Certificate surrendered in respect of the Purchase Contracts evidenced
thereby, other than in the name of the Agent, as custodian for such Holder,
and the Company shall not be required to issue or deliver such share
certificates or Security Certificates unless or until the Person or Persons
requesting the transfer or issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
ARTICLE 6
Remedies
Section 6.01. Unconditional Right of Holders to Receive
Contract Fees and Purchase Common Stock.
The Holder of any Security shall have the right, which is
absolute and unconditional (subject to the right of the Company to defer
payment thereof pursuant to Section 5.3), to receive payment of each
installment of the Contract Fees with respect to the Purchase Contract
constituting a part of such Security on the respective Payment Date for such
Security and to purchase Common Stock pursuant to the terms of such Purchase
Contract and, in each such case, to institute suit for the enforcement of any
such payment and right to purchase Common Stock, and such rights shall not be
impaired without the consent of such Holder.
Section 6.02. Restoration of Rights and Remedies.
If any Holder of Securities has instituted any proceeding to
enforce any right or remedy under this Agreement and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of such Holder shall continue as though no such proceeding had been
instituted.
Section 6.03. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement of
mutilated, destroyed, lost or stolen Security Certificates in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Holders of Securities is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 6.04. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or
remedy shall impair any such right or remedy or constitute a waiver of any
such right. Every right and remedy given by this Article or by law to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
Section 6.5. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of any
Security by his acceptance of the Security Certificate evidencing such
Security shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Agreement, or in any suit against the Agent for any action taken, suffered or
omitted by it as Agent, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided
that the provisions of this Section shall not apply to any suit instituted by
the Company, to any suit instituted by the Agent, to any suit instituted by
any Holder of Securities, or group of Holders, holding in the aggregate more
than 10% of the Outstanding Securities, or to any suit instituted by any
Holder for the enforcement of the payment of the interest on any Treasury Note
or the Contract Fees or Deferred Contract Fees, if any, on any Purchase
Contract on or after the respective Payment Date therefor constituting a part
of the Securities held by such Holder, or for enforcement of the right to
purchase shares of Common Stock under the Purchase Contracts constituting a
part of the Securities held by such Holder.
Section 6.06. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Agreement; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Agent or the Holders,
but will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE 7
The Agent
Section 7.01. Certain Duties and Responsibilities.
(a) (i) The Agent undertakes to perform, with respect to the
Securities, such duties and only such duties as are specifically set forth in
this Agreement and those duties which relate to the Agent in the Pledge
Agreement, and no implied covenants or obligations shall be read into this
Agreement against the Agent;
(ii) in the absence of bad faith or negligence on its part,
the Agent may, with respect to the Securities, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Agent and conforming to the
requirements of this Agreement, but in the case of any certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Agent, the Agent shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Agreement
(but need not confirm or investigate the accuracy of mathematical calculations
stated therein); and
(iii) in case of a Bankruptcy Event, the Agent shall exercise
such of the rights and powers vested in it by this Agreement, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.
(b) No provision of this Agreement shall be construed to relieve
the Agent from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(i) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) the Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that
the Agent was negligent in ascertaining the pertinent facts; and
(iii) no provision of this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk is not
reasonably assured to it.
(c) Whether or not therein expressly so provided, every provision
of this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of this
Section.
Section 7.02. Notice of Default.
Within 30 days after the occurrence of any default by the
Company hereunder, of which a Responsible Officer of the Agent has actual
knowledge, the Agent shall transmit by mail to all Holders of Securities, as
their names and addresses appear in the Security Register, notice of such
default hereunder, unless such default shall have been cured or waived.
Section 7.03. Certain Rights of Agent.
Subject to the provisions of Section 7.10:
(a) the Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Agent (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate of the Company;
(d) the Agent may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Agent, in its discretion, may make reasonable further inquiry or investigation
into such facts or matters related to the issuance of the Securities and the
execution, delivery and performance of the Purchase Contracts as it may see
fit, and, if the Agent shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and promises
of the Company, personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation;
(f) the Agent may execute any of its powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys or an
Affiliate and the Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney or an Affiliate appointed with
due care by it hereunder;
(g) the Agent shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request or direction of
any of the Holders pursuant to this Agreement, unless such Holders shall have
offered to the Agent reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction; and
(h) the Agent shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
Section 7.04. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Security Certificates
shall be taken as the statements of the Company and the Agent assumes no
responsibility for their accuracy. The Agent makes no representations as to
the validity or sufficiency of either this Agreement or of the Securities, or
of the Pledge Agreement or the Pledge. The Agent shall not be accountable for
the use or application by the Company of the proceeds in respect of the
Purchase Contracts.
Section 7.05. May Hold Securities.
Any Security Registrar or any other agent of the Company, or the
Agent and its Affiliates, in their individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with the Company,
the Collateral Agent or any other Person with the same rights it would have if
it were not Security Registrar or such other agent, or the Agent.
Section 7.06. Money Held in Custody.
Money held by the Agent in custody hereunder need not be
segregated from the other funds except to the extent required by law. The
Agent shall be under no obligation to invest or pay interest on any money
received by it hereunder except pursuant to the provisions of Section 4.1 or
as otherwise agreed in writing with the Company.
Section 7.07. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Agent from time to time reasonable compensation
for all services rendered by it hereunder as the Company and the Agent shall,
from time to time, agree in writing (which compensation shall be limited by
any applicable provisions of law);
(b) except as otherwise expressly provided herein, to reimburse the
Agent upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Agent in accordance with any provision of this
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
(c) to indemnify the Agent and any predecessor Agent for, and to
hold each of them harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of its duties hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder;
(d) anything in this Agreement to the contrary notwithstanding, in
no event shall the Agent or its officers, employees or agents be liable under
this Agreement to any third party for indirect, special, punitive, or
consequential loss or damage of any kind whatsoever, including lost profits,
whether or not the likelihood of such loss or damage was known to the Agent,
or any of them, incurred without any act or deed that is found to be
attributable to negligence on the part of the Agent; and
(e) The provisions of this Section 7.07 shall survive the
termination of this Agreement.
Section 7.08. Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be a
Company organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having (or being a member of a bank
holding company having) a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or State
authority and having a Corporate Trust Office in the Borough of Manhattan, The
City of New York, if there be such a corporation in the Borough of Manhattan,
The City of New York qualified and eligible under this Article and willing to
act on reasonable terms. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 7.09. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 7.10.
(b) The Agent may resign at any time by giving written notice
thereof to the Company 60 days prior to the effective date of such
resignation. If the instrument of acceptance by a successor Agent required by
Section 7.10 shall not have been delivered to the Agent within 30 days after
the giving of such notice of resignation, the resigning Agent may petition any
court of competent jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of
a majority in number of the Outstanding Securities delivered to the Agent and
the Company.
(d) If at any time
(i) the Agent fails to comply with Section 310(b) of the TIA,
as if the Agent were an indenture trustee under an indenture qualified under
the TIA, after written request therefor by the Company or by any holder who
has been a bona fide Holder of a Security for at least six months, or
(ii) the Agent shall cease to be eligible under Section 7.8
and shall fail to resign after written request therefor by the Company or by
any such Holder, or
(iii) the Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent or of its property
shall be appointed or any public officer shall take charge or control of the
Agent or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution
may remove the Agent, or (ii) any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Agent and the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Agent and
shall comply with the applicable requirements of Section 7.10. If no successor
Agent shall have been so appointed by the Company and accepted appointment in
the manner required by Section 7.10, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to
give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities as their names
and addresses appear in the Security Register. Each notice shall include the
name of the successor Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Agent,
every such successor Agent so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Agent an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Agent
shall become effective and such successor Agent, without any further act, deed
or conveyance, shall become vested with all the rights, powers, agencies and
duties of the retiring Agent; but, on the request of the Company or the
successor Agent, such retiring Agent shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Agent all the
rights, powers and trusts of the retiring Agent and shall duly assign, transfer
and deliver to such successor Agent all property and money held by such
retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the
time of such acceptance such successor Agent shall be qualified and eligible
under this Article.
Section 7.11. Preservation of Information; Communications to
Holders. (a) The Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by the
Agent in its capacity as Security Registrar.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Agent, and furnish to the Agent reasonable proof that
each such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their
rights under this Agreement or under the Securities and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Agent shall, within five Business Days after the receipt
of such application, afford such applicants access to the information
preserved at the time by the Agent in accordance with Section 7.11(a).
(c) Every Holder of Securities, by receiving and holding the
Security Certificates evidencing the same, agrees with the Company and the
Agent that none of the Company, the Agent nor any agent of any of them shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section 7.11(b),
regardless of the source from which such information was derived.
Section 7.12. No Obligations of Agent.
Except to the extent otherwise provided in this Agreement, the
Agent assumes no obligations and shall not be subject to any liability under
this Agreement, the Pledge Agreement or any Purchase Contract in respect of the
obligations of the Holder of any Security thereunder. The Company agrees, and
each Holder of a Security Certificate, by his acceptance thereof, shall be
deemed to have agreed, that the Agent's execution of the Security Certificates
on behalf of the Holders shall be solely as agent and attorney-in-fact for the
Holders, and that the Agent shall have no obligation to perform such Purchase
Contracts on behalf of the Holders, except to the extent expressly provided in
Article 5 hereof.
Section 7.13. Tax Compliance.
(a) The Agent, at the direction of the Company, will comply with
all applicable certification, information reporting and withholding (including
"backup" withholding) requirements imposed by applicable tax laws, regulations
or administrative practice with respect to (i) any payments made with respect
to the Securities or (ii) the issuance, delivery, holding, transfer,
redemption or exercise of rights under the Securities. Such compliance shall
include, without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
(b) The Agent shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 7.1(a)(ii) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available, on
written request, to the Company or to its authorized representative within a
reasonable period of time after receipt of such request.
Section 7.14. Merger, Conversion, Consolidation or Succession
to Business of Agent.
Any corporation into which the Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Agent shall be a party or any
corporation succeeding to all or substantially all of the corporate trust
business of the Agent, shall be the successor of the Agent hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article
7, without the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Agent then in office, any successor
by merger, conversion or consolidation to such authenticating Agent may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Agent had itself authenticated such Securities.
ARTICLE 8
Supplemental Agreements
Section 8.01. Supplemental Agreements Without Consent of
Holders.
Without the consent of any Holders, the Company and the Agent,
at any time and from time to time, may enter into one or more agreements
supplemental hereto, in form satisfactory to the Company and the Agent, for
any of the following purposes:
(a) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the obligations of the Company
herein and in the Security Certificates; or
(b) to add covenants of the Company for the benefit of the Holders,
or to surrender any right or power herein conferred upon the Company; or
(c) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent or Collateral Agent; or
(d) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein, or to make
any other provisions with respect to such matters or questions arising under
this Agreement, provided such action shall not adversely affect the interests
of the Holders.
Section 8.02. Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% of the
Outstanding Securities, by Act of said Holders delivered to the Company and
the Agent, the Company when authorized by a Board Resolution, and the Agent
may enter into an agreement or agreements supplemental hereto for the purpose
of modifying in any manner the terms of the Securities, or the provisions of
this Agreement or the Pledge Agreement or the rights of the Holders in respect
of the Securities; provided, however, that no such supplemental agreement
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(a) change any Payment Date;
(b) change the amount or type of Treasury Notes underlying a
Security, impair the right of the Holder of any Security to receive interest
payments on the underlying Treasury Notes or otherwise adversely affect the
Holder's rights in or to such Treasury Notes;
(c) change the place or currency of payment or reduce any Contract
Fees or any Deferred Contract Fees;
(d) impair the right to institute suit for the enforcement of any
Purchase Contract;
(e) reduce the amount of Common Stock purchasable on settlement of
any Purchase Contract, increase the price to purchase shares of Common Stock
upon settlement of any Purchase Contract, or change the Company Acceleration
Price or change the Final Settlement Date; or
(f) reduce the above-stated percentage of the Outstanding
Securities the consent of whose Holders is required for the modification or
amendment of the provisions of the Purchase Contracts, this Agreement or the
Pledge Agreement.
It shall not be necessary for any Act of Holders under this
Section 8.2 to approve the particular form of any proposed modification or
amendment, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 8.03. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by,
any supplemental agreement permitted by this Article or the modifications
thereby of the agencies created by this Agreement, the Agent shall be entitled
to receive and (subject to Section 7.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
agreement is authorized or permitted by this Agreement. The Agent may, but
shall not be obligated to, enter into any such supplemental agreement which
affects the Agent's own rights, duties or immunities under this Agreement or
otherwise.
Section 8.04. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this
Article, this Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Agreement for all purposes;
and every Holder of Security Certificates theretofore or thereafter
authenticated, executed on behalf of the Holders and delivered hereunder shall
be bound thereby.
Section 8.05. Reference to Supplemental Agreements.
Security Certificates authenticated, executed on behalf of the
Holders and delivered after the execution of any supplemental agreement
pursuant to this Article may, and shall if required by the Agent, bear a
notation in form approved by the Agent as to any matter provided for in such
supplemental agreement. If the Company shall so determine, new Security
Certificates so modified as to conform, in the opinion of the Agent and the
Company, to any such supplemental agreement may be prepared and executed by
the Company and authenticated, executed on behalf of the Holders and delivered
by the Agent in exchange for Outstanding Security Certificates.
ARTICLE 9
Covenants
Section 9.01. Performance under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders
from time to time of the Securities that it will duly and punctually perform
its obligations under the Purchase Contracts in accordance with the terms of
the Purchase Contracts and this Agreement.
Section 9.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City
of New York an office or agency where Security Certificates may be presented or
surrendered for acquisition of shares of Common Stock upon the Final
Settlement Date or earlier Acceleration Date and for transfer of Treasury
Notes upon occurrence of a Bankruptcy Event, Sale of Assets or a Holder's
Early Settlement, where Security Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Agreement may be served. The
Company will give prompt written notice to the Agent of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Agent with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and
the Company hereby appoints the Agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where Security Certificates may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Agent of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby designates as the place of payment for
the Securities the Corporate Trust Office and appoints the Agent at its
Corporate Trust Office as paying agent in such city.
Section 9.03. Company to Reserve Common Stock.
The Company shall at all times prior to the Final Settlement
Date or an applicable Acceleration Date reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock the full
number of shares of Common Stock issuable against tender of payment in respect
of all Purchase Contracts constituting a part of the Securities evidenced by
Outstanding Security Certificates.
Section 9.04. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may
be issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
Section 9.05. Statements of Officers of the Company as to
Default.
The Company will deliver to the Agent, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions hereof, and if the Company shall
be in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
SUNAMERICA INC.
Attested by:
By:___________________________________
_____________________________ Name:
Title Title:
THE BANK OF NEW YORK
By:___________________________________
Name:
Title:
EXHIBIT A
SUNAMERICA INC.
8.5% PREMIUM EQUITY REDEMPTION
CUMULATIVE SECURITY UNITS
(STATED AMOUNT $37.50 PER SECURITY)
CUSIP NO. 000000000
No. Securities
This Security Certificate certifies that is
the registered Holder of the number of Securities set forth above. Each
Security represents (i) ownership by the Holder of 7.5% United States Treasury
Notes due October 31, 1999 ("Treasury Notes") with a principal amount equal to
the Stated Amount, subject to the Pledge of such Treasury Notes by such Holder
pursuant to the Pledge Agreement, and (ii) the rights and obligations of the
Holder under one Purchase Contract with SunAmerica Inc., a Maryland
corporation (the "Company"). The Treasury Notes represented by this Security
Certificate were acquired by the Underwriters on behalf of the Holders with
the proceeds of the offering of this Security Certificate and other funds
provided by the Company and are being conveyed to the Holder of this Security
Certificate and pledged pursuant to the Pledge Agreement simultaneously
therewith.
Pursuant to the Pledge Agreement, the Treasury Notes
constituting part of each Security evidenced hereby have been pledged to the
Collateral Agent to secure the obligations of the Holder under the Purchase
Contract comprising a portion of such Security.
The Pledge Agreement provides that all payments of principal
of, or interest on, any Treasury Notes comprising a portion of the Securities
received by the Collateral Agent shall be paid by the Collateral Agent by wire
transfer in same day funds no later than 12:00 noon, New York City time, on the
Business Day such payment is received by the Collateral Agent (provided that
in the event such payment is received by the Collateral Agent on a day that is
not a Business Day, then such payment shall be made no later than 10:00 a.m.,
New York City time, on the next succeeding Business Day) (i) in the case of
(A) interest payments and (B) any principal payments with respect to any
Treasury Notes that have been released from the Pledge pursuant to the Pledge
Agreement, to the Agent to the account designated by it for such purpose and
(ii) in the case of principal payments on any Pledged Treasury Notes (as
defined in the Pledge Agreement), to the Company, in full satisfaction of the
respective obligations of the Holders of the Securities of which such Pledged
Treasury Securities are a part under the Purchase Contracts forming a part of
such Securities. Interest on any Treasury Note forming part of a Security
evidenced hereby which is paid on any April 30 or October 31, commencing April
30, 1997 (a "Payment Date"), shall, subject to receipt thereof by the Agent
from the Collateral Agent, be paid to the Person in whose name this Security
Certificate (or a Predecessor Security Certificate) is registered at the close
of business on the Record Date next preceding such Payment Date. On the first
Payment Date, the Agent shall pay, subject to receipt from the Collateral
Agent, to the Holders the accrued interest on the Treasury Notes for the
period from November 1, 1996 to November 6, 1996 as part of the interest
payment on the Treasury Notes.
Each Purchase Contract evidenced hereby obligates the Holder of
this Security Certificate to purchase, and the Company to sell, on October 31,
1999 (the "Final Settlement Date"), at a price equal to $37.50 (the "Stated
Amount"), a number of shares of Common Stock, par value $1.00 per share
("Common Stock"), of the Company, equal to the Settlement Rate on the Final
Settlement Date, unless on or prior to the Final Settlement Date, there shall
have occurred a Bankruptcy Event, Sales of Assets, an Acceleration or a
Holder's Early Settlement with respect to the Security of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement and
more fully described on the reverse hereof. The purchase price for the shares
of Common Stock purchased pursuant to each Purchase Contract evidenced hereby,
if not paid earlier pursuant to the terms of the Purchase Contract Agreement,
shall be paid on the Final Settlement Date by application of payment received
in respect of the principal of the Treasury Notes pledged to secure the
obligations under such Purchase Contract of the Holder of the Security of
which such Purchase Contract is a part.
The Company shall pay or accrue, on each Payment Date, in
respect of each Purchase Contract forming part of a Security evidenced hereby
an amount (the "Contract Fees") equal to 1.0% per annum of the Stated Amount,
computed on the basis of the actual number of days elapsed in a year of 365 or
366 days, as the case may be, subject to deferral at the option of the Company
as provided in the Purchase Contract Agreement and more fully described on the
reverse hereof; except that the Contract Fees payable on the first Payment
Date will be adjusted so that the Contract Fees payable on such date will be
$.122243 per Security. Subject to the provisions of the Purchase Contract
Agreement, such Contract Fees shall be payable to the Person in whose name
this Security Certificate (or a Predecessor Security Certificate) is
registered at the close of business on the Record Date next preceding such
Payment Date.
Interest on the Treasury Notes and the Contract Fees will be
payable at the office of the Agent in The City of New York or, at the option
of the Company, by check mailed to the address of the Person entitled thereto
as such address appears on the Security Register.
Reference is hereby made to the further provisions set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Agent by manual signature, this Security Certificate shall not
be entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
SUNAMERICA INC.
By:_________________________
Name:
Title:
Attested by:
_________________________________
Dated:
This is one of the Securities Certificates referred to in the within
mentioned Purchase Contract Agreement.
THE BANK OF NEW YORK
as Agent
By:_______________________________
Authorized Signatory
(Form of Reverse of Security Certificate]
Each Purchase Contract evidenced hereby is governed by a
Purchase Contract Agreement, dated as of November 6, 1996 (the "Purchase
Contract Agreement"), between the Company and The Bank of New York, as Purchase
Contract Agent (herein called the "Agent"), to which Purchase Contract
Agreement and supplemental agreements thereto reference is hereby made for a
description of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Agent, the Company, and the Holders
and of the terms upon which the Security Certificates are, and are to be,
executed and delivered.
Each Purchase Contract evidenced hereby shall obligate the
Holder of this Security Certificate to purchase, and the Company to sell, on
the Final Settlement Date at a price equal to the Stated Amount, a number of
shares of Common Stock of the Company equal to the Settlement Rate on the Final
Settlement Date, unless, on or prior to the Final Settlement Date, there shall
have occurred a Bankruptcy Event, Sale of Assets, an Acceleration or a
Holder's Early Settlement with respect to the Security of which such Purchase
Contract is a part. The "Settlement Rate" is initially one share of Common
Stock, in each case subject to adjustment as provided in the Purchase Contract
Agreement. No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, as provided in the Purchase Contract
Agreement.
Unless a Holder settles the Purchase Contract evidenced hereby
through the early delivery of cash to the Agent in the manner described in the
Purchase Contract Agreement, the purchase price for the shares of Common Stock
purchased pursuant to each Purchase Contract shall be paid by application of
payments received by the Company on the Final Settlement Date or an earlier
Acceleration Date from, as the case may be, either (i) the Collateral Agent
pursuant to the Pledge Agreement in respect of the principal of the Treasury
Notes pledged to secure the obligations of the relevant Holder under such
Purchase Contract or (ii) the proceeds of the sale of the Treasury Notes
underlying the Holder's Securities pursuant to the provisions of the Purchase
Contract Agreement. Such application shall satisfy in full (whether or not the
principal amount of the Treasury Notes then equals the Stated Amount) the
obligations under such Purchase Contract of the Holder of this Security of
which such Purchase Contract is a part.
The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates therefor to
the Holder unless it shall have received payment in full of the aggregate
purchase price for the shares of Common Stock to be purchased thereunder in
the manner set forth in the Purchase Contract Agreement.
Subject to the next succeeding paragraph and the provisions of
the Purchase Contract Agreement, the Company shall pay by 12:00 noon New York
City time to the Agent, on each Payment Date, the Contract Fees payable in
respect of each Purchase Contract for the benefit of the Person in whose name
the Security Certificate (or one or more Predecessor Security Certificates)
evidencing such Purchase Contract is registered at the close of business on
the Record Date next preceding such Payment Date. The Contract Fees will be
payable at the office of the Agent in The City of New York maintained for that
purpose or, at the option of the Company, by check mailed to the address of
the Person entitled thereto at such address as it appears on the Security
Register.
The right to receive Contract Fees including accrued and unpaid
Contract Fees and Deferred Contract Fees, if any, shall terminate upon the
occurrence of a Bankruptcy Event, and the Company shall have no further
obligation with respect thereto.
The Company shall have the right, at any time prior to the Final
Settlement Date, an Acceleration Date applicable to a Holder's Securities or
Sale of Assets Date, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date (on a pro rata basis among all
Outstanding Securities), but only if the Company shall give the Holders and
the Agent written notice of its election to defer such payment (specifying the
amount to be deferred and the period of deferment) as provided in the Purchase
Contract Agreement. Any Contract Fees so deferred shall bear additional
Contract Fees thereon at the rate of 1.0% per annum (computed on the basis of
the actual number of days elapsed in a year of 365 or 366 days, as the case
may be), compounding on each succeeding Payment Date, until paid in full (such
deferred installments of Contract Fees together with the additional Contract
Fees accrued thereon, are referred to herein as the "Deferred Contract Fees").
Deferred Contract Fees shall be due on the next succeeding Payment Date except
to the extent that payment is deferred further in the notice of election
pursuant to the Purchase Contract Agreement. The Company may pay Deferred
Contract Fees in whole or in part on any Payment Date (on a pro rata basis
among all Outstanding Securities). No Contract Fees or Deferred Contract Fees
may be deferred to a date that is after the Final Settlement Date or a Sale of
Assets Date or, with respect to any particular Purchase Contract, the
Acceleration thereof.
In the event the Company elects to defer the payment of
Contract Fees on the Purchase Contract until the Final Settlement Date, a Sale
of Assets Date or a Company Acceleration Date or a Mandatory Acceleration Date
(or a date prior to such dates as set forth in its written notice referred to
in the preceding paragraph), the Company shall make a cash payment, on the
date such Deferred Contract Fees become due and payable, equal to the
aggregate amount of Deferred Contract Fees payable to a Holder.
In the event the Company exercises its option to defer the
payment of Contract Fees, then, until the Deferred Contract Fees have been
paid in full, the Company shall not declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchase or acquisitions of shares of Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit
plans now or hereafter in effect or the satisfaction by the Company of its
obligations pursuant to any contract or security now or hereafter outstanding
requiring the Company to purchase shares of Common Stock, (ii) as a result of
a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock, (iii) the purchase of
fractional shares in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged (iv) the payment of accrued dividends (and cash in lieu
of fractional shares) upon the conversion of any shares of preferred stock of
the Company as may be outstanding from time to time, in accordance with the
terms of such stock or (v) dividends on its capital stock paid in shares of
capital stock) or make any guarantee payments with respect to the foregoing.
The Purchase Contracts and the obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
of the Holders to receive and the obligation of the Company to pay any Contract
Fees or any Deferred Contract Fees, shall immediately and automatically
terminate, without the necessity of any notice or action by any Holder, the
Agent or the Company, if, on or prior to the Final Settlement Date or an
earlier Acceleration Date with respect to a particular Security, a Bankruptcy
Event or Sale of Assets shall have occurred; provided that, in the event of a
Sale of Assets, the Company will pay all accrued and unpaid Contract Fees and
Deferred Contract Fees, if any, to Holders on the tenth Business Day following
the Sale of Assets Date. Upon and after the occurrence of a Bankruptcy Event
or Sale of Assets, the Securities shall thereafter represent the right to
receive and take possession of the Treasury Notes forming a part of such
Securities in accordance with the provisions of the Purchase Contract
Agreement and the Pledge Agreement. Upon the occurrence of a Bankruptcy Event
or Sale of Assets, the Company shall promptly but in no event after two
Business Days thereafter give written notice to the Agent, the Collateral Agent
and to the Holders, at their addresses as they appear in the Security Register.
Prior to a Mandatory Acceleration Date, a Bankruptcy Event
Date, Sale of Assets Date or the Final Settlement Date, the Company shall have
the right at any time and from time to time to accelerate, in whole or in
part, the Outstanding Securities (a "Company Acceleration") (subject to the
notice provisions set forth in the Purchase Contract Agreement). "Company
Acceleration Price" shall mean the per share price (payable in shares of
Common Stock) at which the Company may accelerate settlement of the
Securities, which shall be initially $59.289 declining by $.00860 on each day
following November 6, 1996 (computed on the basis of a 360-day year of twelve
30-day months) to $51.1081 on August 31, 1999 and equal to $50.625 thereafter.
The Company may not exercise its right to accelerate the Securities unless the
Current Market Price determined as of the second Business Day immediately
preceding the Notice Date is equal to or exceeds the Company Acceleration
Price applicable to such Notice Date. Upon the effective date of such
acceleration ( a "Company Acceleration Date"), the Agent shall sell, pursuant
to Section 4.02(d) of the Purchase Contract Agreement, at the direction of the
Company subject to receipt thereof and pursuant to the Purchase Contract
Agreement, the Treasury Notes underlying the Securities accelerated unless the
Holder has paid the Stated Amount in cash pursuant to Section 4.2(b) of the
Purchase Contract Agreement. The Company shall then deliver, subject to the
terms of the Purchase Contract Agreement, to the Agent for the benefit of the
Holders thereof in exchange for each such Security accelerated, (i) a number
of fully paid and non-assessable shares of Common Stock determined by dividing
the Company Acceleration Price in effect on the Company Acceleration Date by
the Current Market Price of the Common Stock determined as of the second
Business Day immediately preceding the Notice Date applicable to such Company
Acceleration Date and (ii) an amount in cash equal to all accrued and unpaid
Contract Fees and Deferred Contract Fees, if any, on such Security to and
including such Company Acceleration Date (and Contract Fees and Deferred
Contract Fees, if any, shall cease to accrue on each Security accelerated as
of such date). Accrued interest on the Treasury Notes (and premium in respect
of the Sale of Treasury Notes) shall be paid to Holders as provided in the
Purchase Contract Agreement.
Immediately prior to the effectiveness of a merger or
consolidation of, or a statutory share exchange involving, the Company that
results in the conversion or exchange of the Common Stock into, or the right
to receive, other securities or other property (whether of the Company or any
other entity) (any such merger, consolidation or share exchange being referred
to herein as a "Merger or Consolidation"), each Outstanding Security shall
automatically be settled for (a "Mandatory Acceleration"), unless sooner
accelerated:
(i) fully paid and non-assessable shares of Common Stock at
the Settlement Rate in effect on the effective time on the date of any Merger
or Consolidation (the "Mandatory Acceleration Date"); plus
(ii) an amount in cash equal to all accrued and unpaid
Contract Fees and Deferred Contract Fees, if any, on such Securities to but
excluding the Mandatory Acceleration Date (and Contract Fees and Deferred
Contract Fees shall cease to accrue as of the Mandatory Acceleration Date);
plus
(iii) an amount in cash (except as provided below) initially
equal to $8.664, declining by $.008060 on each day following November 6, 1996
(computed on the basis of a 360-day year of twelve 30-day months) to $.4831 on
August 31, 1999 and equal to zero thereafter, in each case determined with
reference to the Mandatory Acceleration Date.
Accrued interest on the Treasury Notes shall be paid to Holders
as provided in the Purchase Contract Agreement. At the option of the Company
and provided that the Company has sufficient authorized and reserved shares
of Common Stock, it may deliver to the Agent, for the benefit of the Holders,
on the Mandatory Acceleration Date in lieu of some or all of the cash
consideration described in clauses (iii) above, fully paid and non-assessable
shares of Common Stock. The number of shares of Common Stock to be delivered
in lieu of any cash consideration described in such clauses (iii) shall be
determined by dividing the amount of cash consideration that the Company has
elected to deliver in Common Stock by the Current Market Price of the Common
Stock determined as of the second Business Day immediately preceding the
Notice Date applicable to such Mandatory Acceleration Date. Notice shall be
given for a Mandatory Acceleration as set forth in the Purchase Contract
Agreement.
If fewer than all outstanding Securities are to be accelerated,
the Securities to be accelerated shall be selected by the Agent by lot.
Upon the occurrence of a Bankruptcy Event or Sale of Assets
and the transfer to the Agent of the Treasury Notes underlying the Securities
pursuant to the terms of the Pledge Agreement, the Agent shall request transfer
instructions with respect to such Treasury Notes from each Holder of
Securities by written request mailed to such Holder at his address as it
appears in the Security Register, in respect of the Treasury Notes underlying
the Security Certificate held by such Holder. Upon surrender to the Agent of a
Security Certificate with such transfer instructions in proper form for
transfer of the Treasury Notes by Federal Reserve Bank-Wire or other
appropriate procedure, subject to the receipt of the Treasury Notes, the Agent
shall transfer the Treasury Notes evidenced by such Security Certificate to
such Holder in accordance with such instructions within three Business Days.
If a Security Certificate is not duly surrendered to the Agent with appropriate
transfer instructions, the Agent shall hold the Treasury Notes evidenced by
such Security Certificate as custodian for the Holder of such Security
Certificate.
In the event of an Acceleration of Securities, Holders of
Securities so accelerated may elect to pay to the Company through the Agent by
no later than 5:00 p.m., New York City time on the third Business Day
immediately preceding the Acceleration Date in immediately available funds an
amount in U.S. dollars equal to the Stated Amount per Security so accelerated.
Holders may make the election provided in this paragraph only in integral
multiples of 400 Securities. Upon Surrender to the Agent of a Security
Certificate with such transfer instructions in proper form for transfer of the
Treasury Notes by Federal Reserve Bank-Wire or other appropriate procedure,
along with the payment described in the previous sentence, subject to receipt
from the Collateral Agent, the Agent shall transfer the Treasury Notes
evidenced by such Security Certificate to such Holder in accordance with such
instructions within three Business Days of such payment. If payment is made in
accordance with the first sentence of this paragraph, the Company will issue
the number of shares of Common Stock equal to the Stated Amount for the
Securities accelerated on the Acceleration Date. The Company will also pay
in cash on the Acceleration Date accrued Contract Fees and Deferred Contract
Fees, if any, to holders of Securities who elect to pay the Stated Amount in
cash upon an Acceleration as provided in the Purchase Contract Agreement.
Because Holders may only elect to make a payment in cash
pursuant to the Purchase Contract Agreement in integral multiples of 400
Securities Treasury Notes shall be transferred only in denominations of
$15,000 and integral multiples thereof. Any Securities accelerated which are
not in integral multiples of 400 shall be settled in shares of Common Stock
pursuant to the Purchase Contract Agreement.
In the case of an Acceleration of Securities, the Agent on
behalf of each Holder (other than Holders that, pursuant to an election made in
accordance with the Purchase Contract Agreement, have paid the Stated Amount
in immediately available funds not later than 5:00 p.m., New York City time on
the third Business Day immediately preceding the Acceleration Date) will sell
on the second Business Day immediately preceding the Acceleration Date the
Treasury Notes underlying each such Holder's Securities to or through one or
more U.S. government securities dealers selected by the Company at the then
prevailing prices and automatically apply on the Acceleration Date, out of the
proceeds of such sale (excluding premium and accrued interest on the Treasury
Notes), an amount equal to the Stated Amount to satisfy in full each such
Holder's obligation to purchase the Common Stock from the Company on the
Acceleration Date. Any excess proceeds (in respect of premium on the sale of
the Treasury Notes) will be paid to such Holder. In the event that the
proceeds from the sale of such Treasury Notes (exclusive of accrued interest
on the Treasury Notes) is less than the Stated Amount, such proceeds
nevertheless will satisfy in full each such Holder's obligation to purchase
the Common Stock from the Company on the Acceleration Date. Amounts in
respect of accrued interest on the Treasury Notes will be paid to each such
Holder on the Acceleration Date. The proceeds of such sales shall be after
deduction by the Agent of all commissions and other out-of-pocket transaction
costs incurred in connection with the sale of such Treasury Notes and, until
the net proceeds of such sale or sales have been distributed to Holders of the
Securities, the Agent shall hold such proceeds as custodian for the Holders of
Securities. Such proceeds shall be held by the Agent uninvested without
liability to any Person for interest or other compensation thereon.
Subject to and upon compliance with the provisions of the
Purchase Contract Agreement, at the option of the Holder thereof, Purchase
Contracts in integral multiples of 400 Securities may be settled early
("Holder's Early Settlement") as provided in the Purchase Contract Agreement.
In order to exercise the right to effect Holder's Early Settlement with
respect to any Purchase Contracts evidenced by this Security Certificate, the
Holder of this Security Certificate shall deliver this Security Certificate to
the Agent at the Corporate Trust Office duly endorsed for transfer to the
Company or in blank with the form (or a writing substantially similar to the
form) of Election to Settle Early set forth below duly completed and
accompanied by payment in the form of a certified or cashier's check payable
to the order of the Company in immediately available funds in a U.S. dollar
amount or by wire transfer of Federal funds (the "Holder's Early Settlement
Amount") equal to the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect a
Holder's Early Settlement. If such delivery is made with respect to any
Purchase Contracts during the period from the close of business on any Record
Date next preceding any Payment Date to the opening of business on such
Payment Date, the amount equal to the sum of (x) the Contract Fees and
Deferred Contract Fees, if any, payable on such Payment Date with respect to
such Purchase Contracts plus (y) the interest on the related Treasury Notes
payable on such Payment Date shall be paid on the next succeeding Payment Date
applicable to the Prepaid Securities. The Company shall cause the Treasury
Notes deliverable upon a Holder's Early Settlement to be released from the
Pledge by the Collateral Agent and transferred to the Agent, for delivery to
the Holder thereof or its designee, no later than 5:00 p.m. on the third
Business Day after the applicable Holder's Early Settlement Date.
Upon Holder's Early Settlement and subject to receipt from the
Collateral Agent of the Treasury Notes, the Agent shall, in accordance with
the written instructions provided by the Holder thereof on the form (or a
writing substantially similar to the form) of Election to Settle Early of this
Security Certificate evidencing the related Securities, transfer the Treasury
Notes forming a part of such Securities to the applicable Holder as provided in
the Purchase Contract Agreement.
Upon a Holder's Early Settlement, the Company shall issue and
deliver to the Agent at the Corporate Trust Office a certificate or
certificates representing a face amount of Prepaid Securities equal to the
aggregate Stated Amount of the Securities subject to such Holder's Early
Settlement and bearing all rights in respect of accrued and unpaid Contract
Fees and Deferred Contract Fees, if any; and the Agent shall transfer such
Prepaid Securities to the Holders no later than 5:00 p.m. on the third
Business Day after the applicable Holder's Early Settlement Date.
Upon the transfer of Treasury Notes and the delivery of Prepaid
Securities pursuant to the Purchase Contract Agreement, the Purchase Contract
which has been thereby settled shall cease to be in effect.
This Security is issued in the form of one or more, fully
registered, Global Security Certificates, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of the Company as
set forth in the Purchase Contract Agreement. If definitive, fully registered
Security Certificates are issued pursuant to the Purchase Contract Agreement,
such Security Certificates will be issuable only in registered form and only in
denominations of a single Security and any integral multiple thereof. The
transfer of any Security Certificate will be registered and Security
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The Security Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Purchase
Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. For so long as the Purchase Contract
underlying a Security remains in effect, such Security shall not be separable
into its constituent parts, and the rights and obligations of the Holder of
such Security in respect of the Treasury Notes and Purchase Contract
constituting such Security may be transferred and exchanged only as a Security.
Upon registration of transfer of this Security Certificate, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to
the Purchase Contract Agreement), under the terms of the Purchase Contract
Agreement and the Purchase Contracts evidenced hereby and the transferor shall
be released from the obligations under the Purchase Contracts evidenced by
this Security Certificate. The Company covenants and agrees, and the Holder,
by his acceptance hereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
The Holder of this Security Certificate, by his acceptance
hereof, authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Securities evidenced hereby on his behalf as his
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the
event that the Company becomes the subject of a case under the Bankruptcy
Code, agrees to be bound by the terms and provisions thereof, covenants and
agrees to perform his obligations under such Purchase Contracts, consents to
the provisions of the Purchase Contract Agreement, authorizes the Agent to
enter into and perform the Pledge Agreement on his behalf as his
attorney-in-fact, and consents to the Pledge of the Treasury Notes underlying
this Security Certificate pursuant to the Pledge Agreement. The Holder further
covenants and agrees, that, to the extent and in the manner provided in the
Purchase Contract Agreement and the Pledge Agreement, but subject to the terms
thereof, payments in respect of principal of the Treasury Notes on the Final
Settlement Date shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Purchase Contract and
such Holder shall acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of at least
66 2/3% of the Outstanding Securities.
All terms used herein which are defined in the Purchase Contract
Agreement have the meanings set forth therein.
The Purchase Contracts shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York without
regard to conflicts of law.
Prior to due presentment of a Security Certificate for
registration of transfer, the Company and the Agent and any agent of the
Company or the Agent may treat the Person in whose name this Security
Certificate is registered as the owner of the Securities evidenced hereby for
the purpose of receiving payments of interest on the Treasury Notes, receiving
payments of Contract Fees and any Deferred Contract Fees, delivery of the
Treasury Notes, performance of the Purchase Contracts and for all other
purposes whatsoever, whether or not the payment of interest on the Treasury
Notes or any Contract Fees payable in respect thereof shall be overdue and
notwithstanding any notice to the contrary, and neither the Company, the Agent
nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of
Common Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Agent.
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon settlement on or after an Acceleration Date or the Final
Settlement Date of the Purchase Contracts underlying the number of Securities
evidenced by this Security Certificate be registered in the name of, and
delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated:______________________________ ___________________________________
Signature
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please print
such Person's name and address:
Please print name and address of
Registered Holder:
____________________________________ __________________________________
Name Name
____________________________________ __________________________________
Address Address
Social Security or other Taxpayer
Identification Number, if any __________________________________
HOLDER'S ELECTION TO SETTLE EARLY
The undersigned Holder of this Security Certificate hereby
irrevocably exercises the option to effect Holder's Early Settlement in
accordance with the terms of the Purchase Contract Agreement with respect to
the Purchase Contracts underlying the number of Securities evidenced by this
Security Certificate specified below. The undersigned Holder directs that a
certificate for Prepaid Securities deliverable upon such Holder's Early
Settlement be registered in the name of, and delivered with any Security
Certificate representing any Securities evidenced hereby as to which Holder's
Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. HOLDERS MAY MAKE THE ELECTION REFERRED TO THIS
PARAGRAPH AND IN THE PURCHASE CONTRACT AGREEMENT ONLY IN INTEGRAL MULTIPLES OF
400 SECURITIES. Treasury Notes deliverable upon such Holder's Early
Settlement will be transferred in accordance with the transfer instructions
set forth below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable
incident thereto.
Dated:________________________ _____________________________________
Signature
Number of Securities evidenced hereby as to which Holder's Early
Settlement of the related Purchase Contracts is being elected:
If shares or Security Certificates are REGISTERED HOLDER
to be registered in the name of and
delivered to and Treasury Notes are
to be transferred to a Person other
than the Holder, please print such
Person's name and address:
Please print name and address of
Registered Holder:
____________________________________ __________________________________
Name Name
____________________________________ __________________________________
Address Address
Social Security or other Taxpayer
Identification Number, if any __________________________________
Transfer Instructions for Treasury Notes Transferable Upon Holder's Early
Settlement:
