EXHIBIT 4.6
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SUNAMERICA INC.
AND
THE BANK OF NEW YORK, Trustee
First Supplemental Indenture
Dated as of November 6, 1996
To
Prepaid Security Indenture
Dated as of November 1, 1996
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Prepaid Premium Equity Redemption Cumulative Securities
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of November 6, 1996 (this
"First Supplemental Indenture"), between SUNAMERICA INC., a Maryland
corporation (the "Issuer"), and THE BANK OF NEW YORK, a New York banking
corporation, as trustee (the "Trustee") under the Indenture dated as of
November 1, 1996 between the Issuer and the Trustee (the "Indenture"),
WHEREAS, the Issuer executed and delivered the Indenture to the
Trustee to provide for the future issuance of its unsecured debentures, notes
or other evidences of indebtedness to be issued in one or more series (the
"Securities"); and
WHEREAS, pursuant to the terms of the Indenture, the Issuer desires
to provide for the establishment of a new series of its Security Units to be
known as its Prepaid Premium Equity Redemption Cumulative Securities (the
"Prepaid Securities"), the form and substance of such Prepaid Securities and
the terms, provisions and conditions thereof to be set forth as provided in
the Indenture and this First Supplemental Indenture; and
WHEREAS, the Issuer has issued its Premium Equity Redemption
Cumulative Security Units, 8.5% PERCS Units (the "PERCS Units"), pursuant to a
Purchase Contract Agreement (the "Purchase Contract Agreement") dated as of
November 6, 1996, between the Issuer and The Bank of New York, as purchase
contract agent, which PERCS Units may, under certain circumstances described
in the Purchase Contract Agreement, be settled prior to the Final Settlement
Date (as defined in Section 1.01) by holders thereof in exchange for Prepaid
Securities; and
WHEREAS, the Issuer desires and has requested the Trustee to join
with it in the execution and delivery of this First Supplemental Indenture,
and all requirements necessary to make this First Supplemental Indenture a
valid instrument, in accordance with its terms, and to make the Prepaid
Securities, when executed by the Issuer and authenticated and delivered by the
Trustee, the valid obligations of the Issuer, have been performed and
fulfilled, and the execution and delivery hereof have been in all respects
duly authorized;
NOW THEREFORE, in consideration of the purchase and acceptance of the
Prepaid Securities by the holders thereof upon early settlement of the PERCS
Units, and for the purpose of setting forth, as provided in the Indenture, the
form and substance of the Prepaid Securities and the terms, provisions and
conditions thereof, the Issuer covenants and agrees with the Trustee as
follows:
ARTICLE ONE
Definitions
SECTION 1.01. Capitalized terms used and not otherwise defined in
this First Supplemental Indenture shall have the meanings ascribed to them in
the Indenture. In addition, the following terms shall have the respective
meanings specified in this Section.
"Acceleration" means either an Issuer Redemption or a Mandatory
Conversion.
"Acceleration Date" means either an Issuer Redemption Date or a
Mandatory Conversion Date.
"Amount in Respect of Contract Fees" means the amount payable by the
Issuer on each Payment Date in respect of each Prepaid Security, 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, except that
Contract Fees payable on the first Payment Date pursuant to the Purchase
Contract Agreement will be adjusted so that Contract Fees payable on such date
will be $.122243 per Prepaid Security. Expect as otherwise stated herein,
Amounts in Respect of Contract Fees shall be considered to be interest for all
purposes under the Indenture.
"Authorized Newspaper" has the meaning provided in the Purchase
Contract Agreement.
"Business Day" has the meaning provided in the Purchase Contract
Agreement.
"Closing Price" has the meaning provided in the Purchase Contract
Agreement.
"Common Stock" has the meaning provided in the Purchase Contract
Agreement.
"Company Acceleration" means a Company Acceleration of the PERCS
Units as provided in the Purchase Contract Agreement.
"Contract Fees" means the Contract Fees payable with respect to the
PERCS Units as provided in the Purchase Contract Agreement.
"Current Market Price" has the meaning provided in the Purchase
Contract Agreement.
"Deferred Amounts in Respect of Contract Fees" has the meaning
provided in Section 3.02.
"Deferred Contract Fees" means the Deferred Contract Fees payable
with respect to the PERCS Units as provided in the Purchase Contract Agreement.
"Final Settlement Date" has the meaning provided in the Purchase
Contract Agreement.
"Final Settlement Fund" has the meaning provided in Section 4.01.
"Holder" means, for purposes of this First Supplemental Indenture, a
Holder (as such term is defined in the Indenture) of a Prepaid Security.
"Holder's Early Settlement" has the meaning provided in the Purchase
Contract Agreement.
"Issuer Redemption" has the meaning provided in Section 4.02.
"Issuer Redemption Date" has the meaning provided in Section 4.02.
"Issuer Redemption Price" means the per share price (payable in
shares of Common Stock) at which the Issuer may accelerate the settlement of
the Securities, which initially shall be $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 $51.1081 on August 31, 1999 and equal to $50.625
thereafter.
"Issuer Redemption Settlement Fund" has the meaning provided in
Section 4.02.
"Mandatory Conversion" has the meaning provided in Section 4.03.
"Mandatory Conversion Date" has the meaning provided in Section 4.03.
"Mandatory Conversion Settlement Fund" has the meaning provided in
Section 4.03.
"Merger or Consolidation" has the meaning provided in the Purchase
Contract Agreement.
"Notice Date" means, with respect to any notice given by the Issuer
in connection with an Acceleration, the earlier of (i) the commencement of the
mailing of such notice to Holders and (ii) the date such notice is first
published in accordance with Section 4.05.
"NYSE" means the New York Stock Exchange.
"Outstanding Securities" has the meaning provided in the Purchaser
Contract Agreement.
"Payment Date" has the meaning provided in the Purchase Contract
Agreement and is subject to the provisions of Article I of the Purchase
Contract Agreement.
"PERCS Units" has the meaning stated in the recitals of this First
Supplemental Indenture.
"Prepaid Security" has the meaning stated in the recitals of this
First Supplemental Indenture.
"Purchase Contract" has the meaning provided in the Purchase Contract
Agreement.
"Purchase Contract Agreement" has the meaning stated in the recitals
of this First Supplemental Indenture.
"Record Date" has the meaning provided in the Purchase Contract
Agreement.
"Sale of Assets" has the meaning provided in the Purchase Contract
Agreement.
"Sale of Assets Date" has the meaning provided in the Purchase
Contract Agreement.
"Security Register" has the meaning provided in the Purchase Contract
Agreement.
"Settlement Rate" shall be initially one share of Common Stock,
subject to adjustment as provided in the Purchase Contract Agreement.
"Stated Amount" means $37.50 per Prepaid Security. Except as
otherwise stated herein, the Stated Amount of any Prepaid Security shall be
considered to be the principal amount of such Security for all purposes under
the Indenture.
ARTICLE TWO
General Terms and Conditions; Form of
Prepaid Securities
SECTION 2.01. There shall be and is hereby authorized a series
of Securities designated the "Prepaid Premium Equity Redeemable Cumulative
Securities", limited in aggregate Stated Amount to $431,250,000. The Prepaid
Securities shall be issued in the form of registered Securities without
Coupons. The Prepaid Securities shall be issued in certificated form in
denominations equal to the Stated Amount and integral multiples thereof.
SECTION 2.02. The Prepaid Securities and the Trustee's
certificate of authentication shall be in substantially the form of Exhibit A,
which is a part of this First Supplemental Indenture.
ARTICLE THREE
Amounts in Respect of Contract Fees
SECTION 3.01. Subject to Section 3.02, the Issuer shall pay by
12:00 noon New York City time to the Trustee, on each Payment Date, in respect
of each Prepaid Security, beginning with the first Payment Date following the
issuance of such Prepaid Security (unless such Prepaid Security was issued
subsequent to a Record Date but prior to the next succeeding Payment Date, in
which event, beginning with the second Payment Date following the issuance of
such Prepaid Security), an amount equal to the Amount in Respect of Contract
Fees payable to the Person in whose name such Prepaid Security appears on the
Security Register at the close of business on the Record Date next preceding
such Payment Date. The Amounts in Respect of Contract Fees will be payable
at the office of the Trustee in the City of New York, at the option of the
Issuer, by check mailed to the address of the Person entitled thereto as such
address appears on the Security Register.
If an Acceleration Date, a Sale of Assets Date or a date upon
which an Event of Default occurs after any Record Date and on or prior to the
next succeeding Payment Date (an "Interim Period"), Contract Fees otherwise
payable on such Payment Date shall be payable on such Payment Date
notwithstanding the occurrence of such event, and such Amounts in Respect of
Contract Fees shall be paid to the Person in whose name appears on the
Security Register at the close of business on such Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the
case of any Prepaid Security with respect to which settlement is effected on a
date other than during an Interim Period, Amounts in Respect of Contract Fees
that would otherwise be payable on such date other than a date during an
Interim Period with respect to the Prepaid Security shall not be payable.
SECTION 3.02. The Issuer shall have the right, at any time
prior to the Final Settlement Date, an earlier Acceleration Date applicable to
a Holder's Securities or a Sale of Assets Date, to defer the payment of any or
all of the Amounts in Respect of Contract Fees otherwise payable on any
Payment Date (on a pro rata basis among all Outstanding Securities including
Prepaid Securities), but only if the Issuer shall give the Holders and the
Trustee 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 the next succeeding Payment Date or the date the
Issuer is required to give notice of the Record Date or Payment Date with
respect to payment of such Amounts in Respect of Contract Fees to the NYSE or
other applicable self-regulatory organization or to Holders of the PERCS
Units, but in any event not less than two Business Days prior to the Record
Date. Any Amounts in Respect of Contract Fees so deferred shall bear
additional Amounts in Respect of 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 Amounts in Respect of
Contract Fees together with the additional Amounts in Respect of Contract Fees
accrued thereon, are referred to herein as "Deferred Amounts in Respect of
Contract Fees"). Deferred Amounts in Respect of 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
Issuer may pay Deferred Amounts in Respect of Contract Fees in whole or in
part on any Payment Date (on a pro rata basis among all Outstanding
Securities including Prepaid Securities). No Amounts in Respect of
Contract Fees or Deferred Amounts in Respect of 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 Prepaid Securities, the
Acceleration thereof. In the event the Issuer elects to defer the payment
of Amounts in Respect of Contract Fees until the Final Settlement Date, a
Sale of Assets Date, a Issuer Redemption Date or a Mandatory Conversion
Date (or a date prior to such dates as set forth in its written notice
referred to in the preceding paragraph) the Issuer shall make a cash
payment, on the date such Amount in Respect of Deferred Contract Fees
becomes due and payable, equal to the aggregate Amount in Respect of
Deferred Contract Fees payable to a Holder.
In the event the Issuer exercises its option to defer the
payment of Amounts in Respect of Contract Fees, then, until the Deferred
Amounts in Respect of Contract Fees have been paid in full, the Issuer 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 Issuer of its
obligations under any employee benefit plans now or hereafter in effect or the
satisfaction by the Issuer of its obligations pursuant to any contract or
security requiring the Issuer to purchase shares of Common Stock, (ii) as a
result of a reclassification of the Issuer's capital stock or the exchange or
conversion of one class or series of the Issuer's capital stock for another
class or series of the Issuer's capital stock, (iii) the purchase of
fractional shares in shares of the Issuer'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 Issuer 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 Prepaid Securities and the obligations and rights of the
Issuer and the Holders thereunder, including, without limitation, the rights
of the Holders to receive and the obligation of the Issuer to pay any Amounts
in Respect of Contract Fees or any Deferred Amounts in Respect of Contract
Fees, shall immediately and automatically terminate, without the necessity of
any notice or action by any Holder, the Agent or the Issuer, if, on or prior
to the Final Settlement Date or an earlier Acceleration Date with respect to
any particular Prepaid Securities, an Event of Default or Sale of Assets shall
have occurred; provided that, in the event of a Sale of Assets, the Issuer
will pay all accrued and unpaid Amounts in Respect of Contract Fees and
Amounts in Respect of Deferred Contract Fees, if any, to Holders on the tenth
Business Day following the Sale of Assets Date. Upon the occurrence of an
Event of Default or Sale of Assets, the Issuer shall promptly but in no event
after two Business Days thereafter give written notice to the Trustee and to
the Holders, at their addresses as they appear in the Security Register.
Notwithstanding the foregoing, the Issuer may defer payments of
Amounts in Respect of Contract Fees only if, and to the extent that, it has
also deferred Contract Fees on the PERCS Units.
SECTION 3.03. In addition to the Amounts in Respect of
Contract Fees and Deferred Amounts in Respect of Contract Fees referred to in
Sections 3.01 and 3.02, each Prepaid Security shall entitle the Holder thereof
to Amounts in Respect of Contract Fees and Deferred Amounts in Respect of
Contract Fees in amounts equal to the amounts of accrued and unpaid Contract
Fees and Deferred Contract Fees, respectively, with respect to the PERCS Units
at the time such Prepaid Security was issued, and any Deferred Contract Fees
to which a Holder is entitled pursuant to this Section 3.03 shall bear
additional Amounts in Respect of Contract Fees from the date of issuance of
such Prepaid Security as provided in Section 3.02.
ARTICLE FOUR
Issuance of Common Stock; Acceleration;
Repayment Upon a Sale of Assets
SECTION 4.01. Unless an Event of Default, 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, the Issuer shall issue and deposit with the Trustee, for the benefit of
the Holders, one or more certificates representing a number of shares of
Common Stock, registered in the name of the Trustee (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"), equal to the
Settlement Rate in effect on the Final Settlement Date.
SECTION 4.02. Prior to a Mandatory Conversion Date, a date
upon which Event of Default occurs, Sale of Assets Date or to the Final
Settlement Date, the Issuer shall have the right at any time and from time to
time to redeem, in whole or in part, the outstanding Prepaid Securities (an
"Issuer Redemption") (subject to the notice provisions set forth in Section
4.05). The Issuer 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 Issuer
Redemption Price applicable to such Notice Date. Upon the effective date of
an Issuer Redemption (an "Issuer Redemption Date"), the Issuer shall issue and
deposit with the Trustee, for the benefit of the Holders of Prepaid Securities
so redeemed, (i) one or more certificates representing a number of fully paid
and non-assessable shares of Common Stock, registered in the name of the
Trustee (or its nominee) as custodian for such Holders (such certificates for
shares of Common Stock, together with any dividends or distributions with
respect thereto, being hereinafter referred to as the "Issuer Redemption
Settlement Fund"), determined by dividing the Issuer Redemption Price in
effect on Issuer Redemption 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 Issuer Redemption Date and (ii) an amount in
cash equal to all accrued and unpaid Amounts in Respect of Contract Fees and
Deferred Amounts in Respect of Contract Fees, if any, on such Prepaid
Securities to and including such Issuer Redemption Date (and Amounts in
Respect of Contract Fees and Deferred Amounts in Respect of Contract Fees, if
any, shall cease to accrue on each Prepaid Security redeemed as of such date).
The Issuer shall redeem the Prepaid Securities in whole if it
effects a Company Acceleration of the PERCS Units in whole. If fewer than all
Outstanding Securities (including the Prepaid Securities) are to be redeemed,
the Prepaid Securities to be redeemed shall be selected by the Trustee by lot.
SECTION 4.03. Immediately prior to the effectiveness of a
Merger or Consolidation, each outstanding Prepaid Security shall automatically
convert into (a "Mandatory Conversion"), unless sooner redeemed, the right to
receive, and the Issuer shall issue and deposit with the Trustee, for the
benefit of the Holders, (i) one or more certificates representing a number of
fully paid and non-assessable shares of Common Stock, registered in the name
of the Trustee (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
"Mandatory Conversion Settlement Fund"), equal to the Settlement Rate in
effect on the Mandatory Conversion Date, (ii) an amount in cash equal to all
accrued and unpaid Amounts in Respect of Contract Fees and Deferred Amounts in
Respect of Contract Fees, if any, on such Prepaid Security to but excluding
the Mandatory Conversion Date (and Amounts in Respect of Contract Fees shall
cease to accrue as of the Mandatory Conversion Date) and (iii) an amount in
cash (except as provided in herein) 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
Conversion Date.
At the option of the Issuer and provided the Issuer has
sufficient authorized and reserved shares of Common Stock, it may deliver to
the Agent, for the benefit of the Holders, on the Mandatory Conversion Date,
for the benefit of the Holders, in lieu of some or all the cash payment
referred to in clause (iii) of the preceding paragraph, a number of shares of
Common Stock (in addition to the shares of Common Stock referred to in clause
(i) of the preceding paragraph) equal to (x) the amount of such cash payment
that the Issuer has elected to pay in Common Stock divided by (y) the Current
Market Price of the Common Stock determined as of the second Business Day
immediately preceding the Notice Date applicable to such Mandatory Conversion
Date. No fractional shares of Common Stock will be issued by the Issuer with
respect to the payment of such amounts pursuant to clause (iii) above. In
lieu of fractional shares otherwise issuable with respect to such payment of
such premium, Holders will be entitled to receive an amount in cash as
provided in Section 4.07.
SECTION 4.04. Upon a Sale of Assets, each Prepaid Security
shall automatically convert into the right to receive, and the Issuer shall
issue and deposit with the Trustee, for the benefit of the Holders, an amount
in cash equal to the sum of (i) the Stated Amount and (ii) all accrued and
unpaid Amounts in Respect of Contract Fees and Deferred Amounts in Respect of
Contract Fees, if any, as provided in Section 3.02.
SECTION 4.05. The Issuer will provide notice of the Final
Settlement Date or any earlier Acceleration (including any potential
acceleration upon the effectiveness of a Merger or Consolidation) to the
Trustee and Holders of record of the Prepaid 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 Issuer 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 Prepaid Securities subject to such
Acceleration, at such Holder's address as it appears on the Security Register
of the Issuer, 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 Authorized Newspaper. Each such mailed or published notice shall state,
as appropriate, the following:
(1) the Final Settlement Date or an Acceleration Date;
(2) the number of Prepaid Securities to be accelerated and,
if less than all the Prepaid Securities held by any Holder are
subject to such Acceleration, the number of such Prepaid
Securities subject to such Acceleration;
(3) the Settlement Rate or the Issuer Redemption Price, as
applicable, and, if applicable, the Current Market Price to be
used to calculate the number of shares of Common Stock
deliverable upon such Acceleration;
(4) whether the Issuer is exercising any option to deliver
shares of Common Stock in lieu of any cash (in the case of a
Mandatory Conversion) and the Current Market Price to be used
to calculate the number of such shares of Common Stock;
(5) the place or places where certificates for such Prepaid
Securities are to be surrendered for Acceleration;
(6) whether the Issuer is depositing with a bank or a trust
company on or before an Acceleration Date, the shares of Common
Stock, and cash, if any, payable by the Issuer and the proposed
date of such deposit; and
(7) the amount of accrued and unpaid Amounts in Respect of
Contract Fees (and Deferred Amounts in Respect of Contract
Fees, if any) payable per Prepaid Security subject to such
Acceleration, and that Amounts in Respect of Contract Fees on
Prepaid Securities subject to such Acceleration will cease to
accrue on such Acceleration Date.
SECTION 4.06. Upon surrender of a certificate representing a
Prepaid Security to the Trustee on or after the Final Settlement Date, an
earlier Acceleration Date or the date ten Business Days following a Sale of
Assets Date, together with settlement instructions thereon duly completed and
executed, the Holder of such Prepaid Security shall be entitled to receive in
exchange therefor (i) a certificate representing that number of whole shares
of Common Stock that such Holder is entitled to receive pursuant to the
provisions of this Article Four (after taking into account all Prepaid
Securities then held by such Holder) together with cash in lieu of fractional
shares as provided in Section 4.07 and any dividends or distributions with
respect to such shares constituting part of the Final Settlement Fund, the
Issuer Redemption Settlement Fund or the Mandatory Conversion Settlement Fund,
as applicable, but without any interest thereon, and (ii) any cash to which
such Holder is entitled pursuant to this Article Four, and the Prepaid
Certificate so surrendered shall forthwith be canceled. In the case of an
Acceleration of fewer than all the Prepaid Securities, a certificate shall be
issued at the expense of the Issuer representing the Prepaid Securities not
subject to such Acceleration.
Shares of Common Stock so delivered shall be registered in the
name of the Holder or the Holder's designee as specified in the settlement
instructions on the certificate for such Prepaid Security. If any shares of
Common Stock issued in respect of a Prepaid Security are to be registered to a
Person other than the Person in whose name the certificate evidencing such
Prepaid Security 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 certificate evidencing such Prepaid Security or has
established to the satisfaction of the Issuer that such tax either has been
paid or is not payable.
SECTION 4.07. No fractional shares or scrip representing
fractional shares of Common Stock shall be issued or delivered on the Final
Settlement Date or earlier Acceleration upon settlement of any Prepaid
Securities or with respect to the payment of amounts in shares of Common Stock
pursuant to clause (iii) of Section 4.03 on a Mandatory Conversion (if the
Issuer elects to pay such amounts in shares of Common Stock in lieu of cash).
If certificates evidencing more than one Prepaid Security shall be surrendered
for settlement at one time by the same Holder, the number of full shares of
Common Stock that shall be delivered upon settlement shall be computed on the
basis of the aggregate number of Prepaid Securities evidenced by the
certificates so surrendered. Instead of any fractional share of Common Stock
that would otherwise be deliverable upon settlement of any Prepaid Securities
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 4.03 on a Mandatory Conversion (if the Issuer elects to pay
such amounts in shares of Common Stock in lieu of cash) the Issuer, through
the Trustee, 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 Issuer shall provide the Trustee from time to time with
sufficient funds to permit the Trustee to make all cash payments required by
this Section 4.07 in a timely manner.
SECTION 4.08. The Settlement Rate shall be subject to
adjustment from time to time in a manner identical to that set forth in
Section 5.06 of the Purchase Contract Agreement.
Whenever the Settlement Rate is adjusted as herein provided,
the Issuer shall:
(i) forthwith compute the adjusted Settlement Rate in
accordance with Section 5.06 of the Purchase Contract Agreement and
prepare a certificate signed by the Chief Executive Officer, the
Chairman, the President, any Vice President or the Treasurer of the
Issuer 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 Agent for the Prepaid 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 Trustee and the Holders of record of the outstanding Prepaid
Securities at or prior to the time the Issuer 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.
The Trustee shall not at any time be under any duty or
responsibility to any Holder 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 Trustee 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 Prepaid Security; and the Trustee
makes no representation with respect thereto. The Trustee shall not be
responsible for any failure of the Issuer to issue, transfer or deliver any
shares of Common Stock pursuant to a Prepaid Security or to comply with any of
the duties, responsibilities or covenants of the Issuer contained in this
Article.
ARTICLE FIVE
Covenants
SECTION 5.01. The Issuer shall at all times prior to the Final
Settlement Date, an earlier Acceleration Date or a Sale of Assets 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 (x)
on the Final Settlement Date pursuant to Section 4.01 and (y) in payment of
amounts in shares of Common Stock pursuant to clause (iii) of Section 4.03 on
a Mandatory Conversion (if the Issuer elects to pay such amounts in shares of
Common Stock in lieu of cash) or the Issuer Redemption Price.
SECTION 5.02. The Issuer covenants that all shares of Common
Stock that may be issued (x) on the Final Settlement Date pursuant to Section
4.01 and (y) in payment of amounts in shares of Common Stock pursuant to
clause (iii) of Section 4.03 on a Mandatory Conversion (if the Issuer elects
to pay such amounts in shares of Common Stock in lieu of cash) or the Issuer
Redemption Price will, upon issuance, be duly authorized, validly issued,
fully paid and nonassessable.
SECTION 5.03. Notwithstanding anything to the contrary in the
Indenture, the provisions of Article 9 of the Indenture shall not apply to the
Prepaid Securities.
ARTICLE SIX
Events of Default
SECTION 6.01. The provision of Article Five of the Indenture
shall, except as provided in this First Supplemental Indenture, apply to the
Prepaid Securities. If an Event of Default shall have occurred and be
continuing, the Prepaid Securities shall be accelerated so that the Issuer
shall become immediately obligated to make the deliveries of Common Stock that
the Issuer would be obligated to make if the date of such acceleration were
the Final Settlement Date. Any obligations of the Issuer with respect to
accrued and unpaid Amounts in Respect of Contract Fees and Deferred Amounts in
Respect of Contract Fees shall be extinguished and of no further effect upon
an Event of Default, and in no event shall the Issuer be obligated to pay any
amounts in respect of accrued and unpaid Amounts in Respect of Contract Fees
or Deferred Amounts in Respect of Contract Fees, if any, upon an Event of
Default.
ARTICLE SEVEN
Issuance of Prepaid Securities
SECTION 7.01. Upon settlement of PERCS Units prior to the
Final Settlement Date as provided in Section 5.10 of the Purchase Contract
Agreement, Prepaid Securities in Stated Amount equal to the Stated Amount of
the PERCS Units so settled may, upon execution of this First Supplemental
Indenture, be executed by the Issuer and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Prepaid Securities to or upon an Issuer Order, without any further action by
the Issuer.
ARTICLE EIGHT
Miscellaneous Provisions
SECTION 8.01. The Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed, and this
First Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided.
SECTION 8.02. Notwithstanding Section 5.03, all covenants and
agreements of the Issuer with respect to the Prepaid Securities set forth in
this First Supplemental Indenture or the Indenture shall bind the successors
and assigns of the Issuer, whether so expressed or not.
SECTION 8.03. The recitals herein contained are made by the
Issuer and not by the Trustee, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representation as to the
validity or sufficiency of this First Supplemental Indenture.
SECTION 8.04. Notwithstanding anything to the contrary in the
Indenture or the Purchase Contract Agreement, upon the election of a Holder's
Early Settlement pursuant to the Purchase Contract Agreement or earlier, the
Issuer may amend the provisions of this First Supplemental Indenture in order
to make the terms of this First Supplemental Indenture substantially similar
to the terms of the Purchase Contract Agreement and the Purchase Contract
without the consent of the holders of such Purchase Contracts or such holders
who have elected a Holder's Early Settlement pursuant to the Purchase Contract
Agreement.
SECTION 8.05. This First Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York without regard to conflicts of law.
SECTION 8.06. This First Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
SUNAMERICA INC.
By: _____________________________
Name:
Title:
Attested:
By: _____________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: _____________________________
Name:
Title:
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES ) November 6, 1996
On the day of , in the year one thousand
nine hundred ninety-six, before me personally came
to me known, who, being by me duly sworn, did depose and say
that he resides at ; that he is
of SUNAMERICA INC., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to the said
instrument is such corporation seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
_____________________________
NOTARY PUBLIC
My Commission Expires
EXHIBIT A
SUNAMERICA INC.
PREPAID PREMIUM EQUITY REDEMPTION
CUMULATIVE SECURITY UNITS
(STATED AMOUNT $37.50 PER SECURITY)
No.
CUSIP No. 000000000
This Security Certificate certifies that is the
registered Holder of the number of Securities of SunAmerica Inc., a Maryland
corporation (the "Issuer") set forth above. Each Security represents a
principal amount equal to the Stated Amount of $37.50.
Each Prepaid Security evidenced hereby obligates the Holder of
this Security Certificate to purchase, and the Issuer 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 Issuer, 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, or an earlier Acceleration
with respect to the Prepaid Security. The purchase price for the shares of
Common Stock have been be paid in full.
The Issuer shall pay or accrue, on each Payment Date, in
respect of each Prepaid Security evidenced hereby an amount (the "Amounts in
Respect of 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 Issuer
as provided in First Supplemental Indenture and more fully described on the
reverse hereof; except that the Amounts in Respect of Contract Fees payable on
the first Payment Date will be adjusted so that the Amounts in Respect of
Contract Fees payable on such date will be $.122243 per Security. Such
Amounts in Respect of Contract Fees shall be payable to the Person in whose
name appears on the Security Register at the close of business on the Record
Date next preceding such Payment Date.
The Amounts in Respect of Contract Fees will be payable at the
office of the Trustee in The City of New York or, at the option of the Issuer,
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 or on behalf of the Trustee by manual signature, this Security
Certificate shall not be entitled to any benefits under the Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed.
Dated:_________________________
SUNAMERICA INC.
By: _________________________
Name:
Title:
Attested:
By:_________________________
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Prepaid Securities described in the within-mentioned
Indenture.
Dated:
The Bank of New York,
as Trustee
_________________________
or as Authentication Agent
By: _________________________
Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Prepaid Security is one of a duly authorized series of Prepaid
Securities of the Issuer (herein sometimes referred to as the "Prepaid
Securities"), specified in the Indenture, all issued or to be issued in one or
more series under and pursuant to an Indenture dated as of November 1, 1996
duly executed and delivered between the Issuer and The Bank of New York, a New
York banking corporation, as Trustee (herein referred to as the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of November 6, 1996
between the Issuer and the Trustee (said Indenture as so supplemented being
hereinafter referred to as the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer and the holders of the Prepaid
Securities, and, to the extent specifically set forth in the Indenture.
Unless an Event of Default, 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, the Issuer shall issue
and deposit with the Trustee, for the benefit of the Holders, one or more
certificates representing a number of shares of Common Stock, registered in
the name of the Trustee (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"), equal to the Settlement Rate in effect on the Final
Settlement Date. The "Settlement Rate" is initially one share of Common
Stock, in each case subject to adjustment as provided in the Indenture.
Notice will be provided to the Holder upon an adjustment of the Settlement
Rate as provided in the Indenture. No fractional shares of Common Stock will
be issued upon settlement of this Prepaid Security, as provided in the
Indenture.
The Issuer shall pay by 12:00 noon New York City time to the
Trustee, on each Payment Date, in respect of each Prepaid Security, beginning
with the first Payment Date following the issuance of such Prepaid Security
(unless such Prepaid Security was issued subsequent to a Record Date but prior
to the next succeeding Payment Date, in which event, beginning with the second
Payment Date following the issuance of such Prepaid Security), an amount equal
to the Amount in Respect of Contract Fees payable to the Person in whose name
such Prepaid Security appears on the Security Register at the close of
business on the Record Date next preceding such Payment Date. The Amounts in
Respect of Contract Fees will be payable at the office of the Trustee in The
City of New York or, at the option of the Issuer, by check mailed to the
address of the Person entitled thereto at such address as it appears on the
Security Register.
The Issuer shall have the right, at any time prior to the Final
Settlement Date, an earlier Acceleration Date or a Sale of Assets Date, to
defer the payment of any or all of the Amounts in Respect of Contract Fees
otherwise payable on any Payment Date (on a pro rata basis among all
Outstanding Securities including Prepaid Securities), but only if the Issuer
shall give the Holders and the Trustee 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 the next
succeeding Payment Date or the date the Issuer is required to give notice of
the Record Date or Payment Date with respect to payment of such Amounts in
Respect of Contract Fees to the NYSE or other applicable self-regulatory
organization or to Holders (as defined in the Purchase Contract Agreement) of
the PERCS Units, but in any event not less than two Business Days prior to the
Record Date. Any Amounts in Respect of Contract Fees so deferred shall bear
additional Amounts in Respect of 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 Amounts in Respect of
Contract Fees together with the additional Amounts in Respect of Contract Fees
accrued thereon, are referred to herein as "Deferred Amounts in Respect of
Contract Fees"). Deferred Amounts in Respect of 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 paragraph. The
Issuer may pay Deferred Amounts in Respect of Contract Fees in whole or in
part on any Payment Date (on a pro rata basis among all Outstanding Securities
including Prepaid Securities). No Amounts in Respect of Contract Fees or
Deferred Amounts in Respect of 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 Prepaid Securities, the Acceleration thereof. In the event the
Issuer elects to defer the payment of Amounts in Respect of Contract Fees
until the Final Settlement Date, a Sale of Assets Date, an Issuer Redemption
Acceleration Date or a Mandatory Conversion Date (or a date prior to such
dates as set forth in its written notice referred to in this paragraph) the
Issuer shall make a cash payment, on the date such Amount in Respect of
Deferred Contract Fees becomes due and payable, equal to the aggregate Amount
in Respect of Deferred Contract Fees payable to a Holder.
In the event the Issuer exercises its option to defer the
payment of Amounts in Respect of Contract Fees, then, until the Deferred
Amounts in Respect of Contract Fees have been paid in full, the Issuer 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 Issuer of its
obligations under any employee benefit plans now or hereafter in effect or the
satisfaction by the Issuer of its obligations pursuant to any contract or
security requiring the Issuer to purchase shares of Common Stock, (ii) as a
result of a reclassification of the Issuer's capital stock or the exchange or
conversion of one class or series of the Issuer's capital stock for another
class or series of the Issuer's capital stock, (iii) the purchase of
fractional shares in shares of the Issuer'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 Issuer 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.
This Prepaid Security and the obligations and rights of the
Issuer and the Holder hereof, including, without limitation, the rights of the
Holder to receive and the obligation of the Issuer to pay any Amounts in
Respect of Contract Fees or any Deferred Amounts in Respect of Contract Fees,
shall immediately and automatically terminate, without the necessity of any
notice or action by the Holder, the Agent or the Issuer, if, on or prior to
the Final Settlement Date or an earlier Acceleration Date with respect to any
particular Prepaid Securities, an Event of Default or Sale of Assets shall
have occurred; provided that, in the event of a Sale of Assets, the Issuer
will pay all accrued and unpaid Amounts in Respect of Contract Fees and
Amounts in Respect of Deferred Contract Fees, if any, to the Holder on the
tenth Business Day following the Sale of Assets Date. Upon the occurrence of
an Event of Default or Sale of Assets, the Issuer shall promptly but in no
event after two Business Days thereafter give written notice to the Trustee
and to the Holder, at its address as it appears in the Security Register.
Notwithstanding the foregoing, the Issuer may defer payments of
Amounts in Respect of Contract Fees only if, and to the extent that, it has
also deferred Contract Fees on the PERCS Units.
Prior to a Mandatory Conversion Date, a date upon which an
Event of Default occurs, Sale of Assets Date or the Final Settlement Date, the
Issuer shall have the right at any time and time to time to redeem, in whole
or in part, the outstanding Prepaid Securities (an "Issuer Redemption")
(subject to the notice provisions set forth in the Indenture). The Issuer 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 Issuer Redemption Price applicable to
such Notice Date. Upon the effective date of an Issuer Redemption (an "Issuer
Redemption Date"), the Issuer shall issue and deposit with the Trustee, for
the benefit of the Holders of Prepaid Securities so redeemed, (i) one or more
certificates representing a number of fully paid and non-assessable shares of
Common Stock, registered in the name of the Trustee (or its nominee) as
custodian for such Holders (such certificates for shares of Common Stock,
together with any dividends or distributions with respect thereto, being
hereinafter referred to as the "Issuer Redemption Settlement Fund"),
determined by dividing the Issuer Redemption Price in effect on the Issuer
Redemption 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 Issuer Redemption Date and (ii) an amount in cash equal to all accrued
and unpaid Amounts in Respect of Contract Fees and Deferred Amounts in Respect
of Contract Fees, if any, on such Prepaid Securities to and including such
Issuer Redemption Date (and Amounts in Respect of Contract Fees and Deferred
Amounts in Respect of Contract Fees, if any, shall cease to accrue on each
Prepaid Security redeemed as of such date).
The Issuer shall redeem the Prepaid Securities in whole if it
effects a Company Acceleration of the PERCS Units in whole. If fewer than all
Outstanding Securities (including Prepaid Securities) are to be redeemed, the
Prepaid Securities to be redeemed shall be selected by the Trustee by lot.
Notice shall be given for an Issuer Redemption as set forth in
the Indenture. No fractional shares of Common Stock will be issued by the
Issuer with respect to the payment of the Issuer Redemption Price. The Holder
will receive cash in lieu of fractional shares otherwise issuable with respect
to such payment as provided in the Indenture.
Immediately prior to the effectiveness of a Merger or
Consolidation, each outstanding Prepaid Security shall automatically convert
into (a "Mandatory Conversion"), unless sooner redeemed, the right to receive,
and the Issuer shall issue and deposit with the Trustee, for the benefit of
the Holders, (i) one or more certificates representing a number of fully paid
and non-assessable shares of Common Stock, registered in the name of the
Trustee (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 "Mandatory Conversion
Settlement Fund"), equal to the Settlement Rate in effect on the Mandatory
Conversion Date, (ii) an amount in cash equal to all accrued and unpaid
Amounts in Respect of Contract Fees and Deferred Amounts in Respect of
Contract Fees, if any, on such Prepaid Security to but excluding the Mandatory
Conversion Date (and Amounts in Respect of Contract Fees shall cease to accrue
as of the Mandatory Conversion Date) and (iii) an amount in cash (except as
provided in herein) 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 Conversion
Date.
At the option of the Issuer and provided the Issuer has
sufficient authorized and reserved shares of Common Stock, it may deliver to
the Agent, for the benefit of the Holders, on the Mandatory Conversion Date,
for the benefit of the Holders, in lieu of some or all the cash payment
referred to in clause (iii) of the preceding paragraph, a number of shares of
Common Stock (in addition to the shares of Common Stock referred to in clause
(i) of the preceding paragraph) equal to (x) the amount of such cash payment
that the Issuer has elected to pay in Common Stock divided by (y) the Current
Market Price of the Common Stock determined as of the second Business Day
immediately preceding the Notice Date applicable to such Mandatory Conversion
Date. Notice shall be given for a Mandatory Conversion as set forth in the
Indenture. No fractional shares of Common Stock will be issued by the Issuer
with respect to the payment of such amounts pursuant to clause (iii) above on
a Mandatory Conversion (if the Issuer so elects). The Holder will receive
cash in lieu of fractional shares otherwise issuable with respect to such
payment as provided in the Indenture.
Upon a Sale of Assets, each Prepaid Security shall
automatically convert into the right to receive, and the Issuer shall issue
and deposit with the Trustee, for the benefit of the Holders, an amount in
cash equal to the sum of (i) the Stated Amount and (ii) all accrued and unpaid
Amounts in Respect of Contract Fees and Deferred Amounts in Respect of
Contract Fees, if any, as provided for in the Indenture.
If an Event of Default shall have occurred and be continuing,
the Prepaid Securities shall be accelerated so that the Issuer shall become
immediately obligated to make the deliveries of Common Stock that the Issuer
would be obligated to make if the date of such acceleration were the Final
Settlement Date. Any obligations of the Issuer with respect to accrued and
unpaid Amounts in Respect of Contract Fees and Deferred Amounts in Respect of
Contract Fees shall be extinguished and of no further effect upon an Event of
Default, and in no event shall the Issuer be obligated to pay any amounts in
respect of accrued and unpaid Amounts in Respect of Contract Fees or Deferred
Amounts in Respect of Contract Fees, if any, upon an Event of Default.
The Security Certificates are 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 Indenture. The
Security Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Indenture.
No service charge shall be required for any such registration of transfer or
exchange, but the Issuer and the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
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 Trustee pursuant to
the Indenture), under the terms of the Indenture and the Prepaid Securities
evidenced hereby and the transferor shall be released from the obligations
under the Prepaid Securities evidenced by this Security Certificate. The
Issuer 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 Trustee to enter into and perform the related Prepaid
Securities 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 Prepaid Securities by the Issuer or its trustee in the
event that the Issuer 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 Prepaid Securities, consents to the
provisions of the Indenture.
Subject to certain exceptions, the provisions of the Indenture
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 Indenture and
the First Supplemental Indenture have the meanings set forth therein.
The Prepaid Securities 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.
The Issuer, the Trustee and its Affiliates and any agent of the
Issuer or the Trustee 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 Contract Fees and any Deferred Contract
Fees, performance of the Prepaid Securities and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Prepaid Securities 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 Indenture is available for inspection at the
offices of the Trustee.
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after an Acceleration Date 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 __________________________________
