EXHIBIT 4(f)
FORM OF
PURCHASE CONTRACT AGREEMENT
FERRO CORPORATION
AND
DATED AS OF _________, 200__
TABLE OF CONTENTS(1)
PAGE
PARTIES....................................................................................1
RECITALS...................................................................................1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions..............................................................1
Section 102. Compliance Certificates and Opinions.....................................6
Section 103. Form of Documents Delivered to Agent.....................................7
Section 104. Acts of Holders; Record Dates............................................7
Section 105. Notices, etc, to Agent and the Company...................................9
Section 106. Notice to Holders; Waiver................................................9
Section 107. Effect of Headings and Table of Contents.................................9
Section 108. Successors and Assigns...................................................9
Section 109. Separability Clause.....................................................10
Section 110. Benefits of Agreement...................................................10
Section 111. Governing Law...........................................................10
Section 112. Legal Holidays..........................................................10
Section 113. Counterparts............................................................10
Section 114. Inspection of Agreement.................................................10
ARTICLE TWO
Security Certificate Forms
Section 201. Forms of Security Certificates Generally................................11
Section 202. Form of Agent's Certificate of Authentication...........................11
ARTICLE THREE
The Securities
Section 301. Title and Terms; Denominations..........................................11
Section 302. Rights and Obligations Evidenced by the Security Certificates...........12
Section 303. Execution, Authentication, Delivery and Dating..........................12
Section 304. Temporary Security Certificates.........................................13
Section 305. Registration; Registration of Transfer and Exchange.....................13
Section 306. Mutilated, Destroyed, Lost and Stolen Security Certificates.............15
Section 307. Persons Deemed Owners...................................................16
Section 308. Cancellation............................................................16
Section 309. Securities Not Separable................................................17
---------------------
(1) The Table of Contents is not part of the Stock Purchase Agreement.
i
ARTICLE FOUR
The Treasury Notes
Section 401. Payment Interest; Rights to Interest Preserved..........................17
Section 402. Transfer of Treasury Notes Upon Occurrence of Termination Event.........18
ARTICLE FIVE
The Purchase Contracts
Section 501. Purchase of Shares of Common Stock......................................18
Section 502. Contract Fees...........................................................20
Section 503. Deferral of Payment Dates For Contract Fee..............................20
Section 504. Payment of Purchase Price...............................................21
Section 505. Issuance of Shares of Common Stock......................................21
Section 506. Adjustment of Settlement Rate...........................................22
Section 507. Notice of Adjustments and Certain Other Events..........................27
Section 508. Termination Event; Notice...............................................28
Section 509. Early Settlement........................................................28
Section 510. No Fractional Shares....................................................30
Section 511. Charges and Taxes.......................................................30
ARTICLE SIX
Remedies
Section 601. Unconditional Right of Holders to Receive Contract Fee..................30
Section 602. Restoration of Rights and Remedies......................................31
Section 603. Rights and Remedies Cumulative..........................................31
Section 604. Delay or Omission Not Waiver............................................31
Section 605. Undertaking for Costs...................................................31
Section 606. Waiver of Stay or Extension Laws........................................32
ARTICLE SEVEN
The Agent
Section 701. Certain Duties and Responsibilities.....................................32
Section 702. Notice of Default.......................................................33
Section 703. Certain Rights of Agent.................................................33
Section 704. Not Responsible for Recitals or Issuance of Securities..................34
Section 705. May Hold Securities.....................................................34
Section 706. Money Held in Trust.....................................................34
Section 707. Compensation and Reimbursement..........................................34
Section 708. Corporate Agent Required; Eligibility...................................35
Section 709. Resignation and Removal; Appointment of Successor.......................35
Section 710. Acceptance of Appointment by Successor..................................36
Section 711. Merger, Conversion, Consolidation or Succession to Business.............37
Section 712. Preservation of Information; Communications to Holders..................37
Section 713. No Obligations of Agent.................................................37
Section 714. Tax Compliance..........................................................38
ii
ARTICLE EIGHT
Supplemental Agreements
Section 801. Supplemental Agreements Without Consent of Holders......................38
Section 802. Supplemental Agreements with Consent of Holders.........................39
Section 803. Execution of Supplemental Agreements....................................39
Section 804. Effect of Supplemental Agreements.......................................40
Section 805. Reference to Supplemental Agreements....................................40
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance
Section 901. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions................................40
Section 902. Rights and Duties of Successor Corporation..............................40
Section 903. Opinion of Counsel to Agent.............................................41
ARTICLE TEN
Covenants
Section 1001. Performance Under Purchase Contracts....................................41
Section 1002. Maintenance of Office or Agency.........................................41
Section 1003. Company to Reserve Common Stock.........................................42
Section 1004. Covenants as to Common Stock............................................42
Section 1005. Statements of Officers of the Company as to Default.....................42
TESTIMONIUM ..............................................................................42
SIGNATURES ...............................................................................42
EXHIBIT A Form of Security Certificate............................................43
iii
PURCHASE CONTRACT AGREEMENT, dated as of ________________, 200__,
between FERRO CORPORATION, an Ohio corporation (the "Company"), and
_______________________________, acting as purchase contract agent for the
Holders of Securities from time to time (the "Agent").
RECITALS
A. The Company has duly authorized the execution and delivery of
this Agreement and the Security Certificates evidencing the
Securities.
B. 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 ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. 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 104.
"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.
1
"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.
"Applicable Market Value" has the meaning specified in Section 501.
"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.
"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.
"Closing Price" has the meaning specified in Section 501.
"Collateral Agent" means ________________, 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 $1.00 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, and
thereafter "Company" shall mean such successor.
"Contract Fee" means the fee payable by the Company in respect of each
Purchase Contract, equal to ___% per annum of the Stated Amount, accruing from
________________, 200___, computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as the case may be, plus any additional
fees accrued pursuant to Section 503.
"Corporate Trust Office" means the principal office of the Agent in
____________________________________, at which at any particular time its
corporate trust business shall be administered, which office at the date hereof
is located at ________________.
"Current Market Price" has the meaning specified in Section 506(a)(8).
"Depositary" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for the Securities as contemplated by
Section 305.
"Early Settlement" has the meaning specified in Section 509(a).
"Early Settlement Amount" has the meaning specified in Section 509(a).
2
"Early Settlement Date" has the meaning specified in Section 509(a).
"Early Settlement Rate" has the meaning specified in Section 509(b).
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Excess Treasury Notes" has the meaning specified in Section 402.
"Expiration Date" has the meaning specified in Section 104.
"Expiration Time" has the meaning specified in Section 506(a)(6).
"Final Settlement Date" means ________________, 200__.
"Final Settlement Fund" has the meaning specified in Section 505.
"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.
"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 or a Vice President and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the Agent.
"NYSE" has the meaning specified in Section 501.
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, any Vice Chairman, the President or any Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company 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.
"Outstanding Securities" means, as of the date of determination, all
Securities evidenced by then Outstanding Security Certificates, except:
(i) If a Termination 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 the applicable Early Settlement Date, Securities
as to which the Holder has elected to effect Early Termination
of the related Purchase Contracts;
3
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 cancelled 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 ____________________ and ___________________,
commencing ________________, 20___.
"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 306 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.
"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 on the terms and subject to the conditions set forth in
Article Five hereof.
4
"Purchased Shares" has the meaning specified in Section 506(a)(6).
"Record Date" for the interest and Contract Fees payable on any Payment
Date means the ________________ or ________________________ (whether or not a
Business Day), as the case may be, next preceding such Payment Date.
"Reorganization Event" has the meaning specified in Section 506(b).
"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.
"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 305.
"Settlement Rate" has the meaning specified in Section 501.
"Stated Amount" means $___________.
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following
events: (i) at any time on or prior to the Final Settlement Date, a decree or
order by a court having jurisdiction in the premises shall have been entered
adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization of the Company under the United States
Bankruptcy Code or any other similar applicable Federal or State law, and,
unless such decree or order shall have been entered within 60 days prior to the
Final Settlement Date, such decree or order shall have continued undischarged
and unstayed for a period of 60 days; or (ii) a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of the Company or
of its property, or for the winding up or liquidation of its affairs, shall have
been entered, and, unless such decree or order shall have been entered within 60
days prior to the Final Settlement Date, such decree or order shall have
continued undischarged and unstayed for a period of 60 days, or (iii) at any
time on or prior to the Final Settlement Date the Company shall institute
proceedings to be adjudicated a bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or consent
seeking reorganization under the United States Bankruptcy Code or any other
similar applicable Federal or State law, or shall consent to the filing of any
such petition, or shall consent to the appointment of a receiver or liquidator
or trustee or assignee in bankruptcy or insolvency of it or of its property, or
shall make an assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due.
5
"Threshold Appreciation Price" has the meaning specified in Section
501.
"TIA" means the Trust Indenture Act of 1939, as amended, or any
successor statute.
"Trading Day" has the meaning specified in Section 501.
"Treasury Notes" means ____% United States Treasury Notes due
______________, 20____.
"Underwriting Agreement" means the Underwriting Agreement dated
________________, 200__ between the Company and ________________________, as
representative of the several Underwriters named therein.
"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 102. 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 Officer's
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:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) 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;
(3) 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
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
6
SECTION 103. 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 104. 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 701) 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
7
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 cancelled 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 106.
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 106, 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.
8
SECTION 105. 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,
(1) 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 ________________________, Attention: Stock
Transfer Department, or at any other address previously
furnished in writing by the Agent to the Holders and the
Company, or
(2) 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 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000,
Attention: Treasurer, or at any other address previously
furnished in writing to the Agent by the Company.
SECTION 106. 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 107. 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 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement by the Company shall
bind its successors and assigns, whether so expressed or not.
9
SECTION 109. 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 110. 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 111. GOVERNING LAW.
This Agreement and the Securities shall be governed by and construed in
accordance with the laws of the State of __________________.
SECTION 112. LEGAL HOLIDAYS.
In any case where any Payment Date, any Early Settlement Date or the
Final 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 shall not be made, Purchase
Contracts shall not be performed and Early Settlement shall not be effected on
such date, but such payments shall be made, or the Purchase Contracts shall be
performed or Early Settlement effected, as applicable, on the next succeeding
Business Day with the same force and effect as if made on such Payment Date,
Early Settlement Date or Final 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, Early Settlement Date or Final
Settlement Date, as the case may be.
SECTION 113. 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 114. 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.
10
ARTICLE TWO
SECURITY CERTIFICATE FORMS
SECTION 201. FORMS OF SECURITY CERTIFICATES GENERALLY.
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 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 A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY CERTIFICATE MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY CERTIFICATE REGISTERED, AND NO
TRANSFER OF THIS SECURITY CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
SECTION 202. 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 THREE
THE SECURITIES
SECTION 301. 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 ________________ (subject to increase up to a maximum of
________________ to the extent the overallotment option of the underwriters
under the Underwriting Agreement is exercised), 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
304, 305, 306, 509 or 805.
11
The Security Certificates shall be issuable only in registered form and
only in denominations of a single Security and any integral multiple thereof.
SECTION 302. 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. 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 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Upon the execution and delivery of this Agreement, and 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 deliver such Security
Certificates.
The Security Certificates shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. 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
12
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 delivered
hereunder.
SECTION 304. 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 305. 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, 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
13
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 306 and 805 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
or the Termination Date. In lieu of delivery of a new Security Certificate, upon
satisfaction of the applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from such Holder,
the Agent shall (i) if the Final Settlement Date has occurred, deliver the
shares of Common Stock issuable in respect of the Purchase Contracts forming a
part of the Securities evidenced by such Security Certificate, or (ii) if a
Termination Event shall have occurred prior to the Final Settlement Date,
transfer the principal amount of the Treasury Notes evidenced thereby, in each
case subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Security Certificates:
(1) Each Global Security Certificate authenticated and executed on
behalf of the Holders under this Agreement shall be registered
in the name of the Depositary designated for such Global
Security Certificate or a nominee thereof and delivered to
such Depositary or a nominee thereof or custodian therefor,
and each such Global Security Certificate shall constitute a
single Security Certificate for all purposes of this
Agreement.
(2) 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 the
Depositary for such Global Security Certificate or a nominee
thereof unless (A) such Depositary (i) has
14
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.
(3) Subject to Clause (2) 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 the Depositary
for such Global Security Certificate shall direct.
(4) 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 304, 306, 509 or 805 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 306. 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 deliver 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
deliver 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 the Final Settlement Date or the Termination
Date. In lieu of delivery of a new Security Certificate, upon satisfaction of
the applicable conditions specified above in this Section and receipt of
appropriate registration or transfer instructions from such Holder, the Agent
shall (i) if the Final Settlement Date has occurred, deliver the shares of
Common Stock issuable in respect of the Purchase Contracts forming a part of the
Securities evidenced by such Security Certificate, or (ii) if a Termination
Event shall have occurred prior to the Final Settlement Date, transfer the
principal amount of the Treasury Notes evidenced thereby, in each case subject
to the applicable conditions and in accordance with the applicable provisions of
Article Five hereof.
15
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 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 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 307. 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,
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 Fee
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 any Depositary (or its nominee), as a
Holder, with respect to such Global Security Certificate or impair, as between
such Depositary and owners of beneficial interests in such Global Security
Certificate, the operation of customary practices governing the exercise of
rights of such Depositary (or its nominee) as Holder of such Global Security
Certificate.
SECTION 308. CANCELLATION.
All Security Certificates surrendered for delivery of shares of Common
Stock on or after the Final Settlement Date, transfer of Treasury Notes after
the occurrence of a Termination Event or pursuant to an 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
16
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.
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 309. SECURITIES NOT SEPARABLE.
Notwithstanding anything contained herein or in the Security
Certificates to the contrary, 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 Contracts constituting 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.
ARTICLE FOUR
THE TREASURY NOTES
SECTION 401. PAYMENT OF INTEREST; RIGHTS TO INTEREST 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.
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 Early Settlement of
the underlying Purchase Contract is effected on an Early 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 Early
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. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security with respect to which Early Settlement of
the underlying Purchase Contract is effected on an
17
Early Settlement Date, interest on the related Treasury Notes that would
otherwise be payable after the Early Settlement Date shall not be payable
hereunder to the Holder of such Security.
SECTION 402. TRANSFER OF TREASURY NOTES UPON OCCURRENCE OF TERMINATION EVENT.
Upon the occurrence of a Termination Event and the transfer to the
Agent of the Treasury Notes underlying such 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 BankWire, book-entry transfer through the facilities of the Depositary
Trust Company, or other appropriate procedure, the Agent shall transfer the
Treasury Notes evidenced by such Security Certificate to such Holder in
accordance with such instructions. 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.
Treasury Notes shall be transferred only in denominations of
$_____________ and integral multiples thereof. As promptly as practicable
following the occurrence of a Termination Event, the Agent shall determine the
excess of (i) the aggregate principal amount of Treasury Notes underlying the
Outstanding Securities over (ii) the aggregate principal amount of Treasury
Notes in denominations of $_____________ and integral multiples thereof
transferrable to Holders of record on the date of such Termination Event (such
excess being herein referred to as the "Excess Treasury Notes"). As soon as
practicable after transfer to the Agent of the Treasury Notes underlying the
Outstanding Securities as provided in the Pledge Agreement, the Agent shall sell
the Excess Treasury Notes to or through one or more registered broker dealers at
then prevailing prices. The Agent shall deduct from the proceeds of such sales
all commissions and other out-of-pocket transaction costs incurred in connection
with such sales of Excess 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 in trust for the Holders of Securities. Each Holder
shall be entitled to receive a portion, if any, of such net proceeds in lieu of
Treasury Notes with a principal amount of less than $1,000 determined by
multiplying the aggregate amount of such net proceeds by a fraction, the
numerator of which is the fraction of $1,000 in principal amount of Treasury
Notes to which such Holder would otherwise be entitled (after taking into
account all Securities then held by such Holder) and the denominator of which is
the aggregate principal amount of Excess Treasury Notes.
ARTICLE FIVE
THE PURCHASE CONTRACTS
SECTION 501. PURCHASE OF SHARES OF COMMON STOCK.
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, unless, on or prior to the Final
18
Settlement Date, there shall have occurred a Termination Event or an Early
Settlement with respect to the Security of which such Purchase Contract is a
part. The "Settlement Rate" is equal to (a) if the Applicable Market Value (as
defined below) is greater than $_____________ (the "Threshold Appreciation
Price"), ________________ of a share of Common Stock per Purchase Contract, (b)
if the Applicable Market Value is less than or equal to the Threshold
Appreciation Price but is greater than the Stated Amount, a fractional share of
Common Stock per Purchase Contract equal to the Stated Amount divided by the
Applicable Market Value (rounded upward or downward to the nearest 1/10,000th of
a share) and (c) if the Applicable Market Value is less than or equal to the
Stated Amount, one share of Common Stock per Purchase Contract, in each case
subject to adjustment as provided in Section 506. As provided in Section 510, no
fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the twenty consecutive Trading Days ending
on the last Trading Day immediately preceding the Final Settlement Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The Nasdaq Stock Market, or, if the Common Stock is not
so reported, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company. A "Trading
Day" means a day on which the Common Stock (A) 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 (B) 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.
Each Holder of a Security Certificate evidencing Securities, by his
acceptance thereof, irrevocably 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, irrevocably 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 irrevocably covenants
and agrees, that, to the extent and in the manner provided in Section 504 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
19
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 502. CONTRACT FEES.
Subject to Section 503, the Company shall pay, on each Payment Date,
the Contract Fees payable in respect of each Purchase Contract to 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 Fee
will be payable at the office of the Agent in _____________________ 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 Early Settlement of
the underlying Purchase Contract is effected on an Early 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 Early 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 Early Settlement of the underlying Purchase Contract is effected on an
Early Settlement Date, Contract Fees that would otherwise be payable after the
Early Settlement Date with respect to the Purchase Contract underlying such
Security shall not be payable.
SECTION 503. DEFERRAL OF PAYMENT DATES FOR CONTRACT FEE.
The Company shall have the right, at any time prior to the Final
Settlement Date, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date, 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) 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 Fee to the New York Stock Exchange 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 _____% 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. Deferred Contract Fees (and additional Contract Fees
accrued thereon) shall be due on the next succeeding
20
Payment Date except to the extent that payment is deferred pursuant to this
Section. No Contract Fees may be deferred to a date that is after the Final
Settlement Date or, with respect to any particular Purchase Contract, Early
Settlement thereof.
SECTION 504. PAYMENT OF PURCHASE PRICE.
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 from 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. Such
application shall satisfy in full 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 505. ISSUANCE OF SHARES OF COMMON STOCK.
Unless a Termination Event shall have occurred on or prior to the Final
Settlement Date, on the Final Settlement Date, upon its receipt of Payment in
full of the purchase price for the shares of Common Stock purchased by the
Holders pursuant to the foregoing provisions of this Article, and subject to
Section 506(b), the Company shall deposit with the Agent, for the benefit of the
Holders of the Outstanding Securities, 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 interest with respect thereto, being hereinafter
referred to as the "Final Settlement Fund") 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, 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 510 and any dividends or
interest with respect to such shares constituting part of the Final Settlement
Fund, but without any interest thereon and the Security Certificate so
surrendered shall forthwith be cancelled. 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.
21
SECTION 506. ADJUSTMENT OF SETTLEMENT RATE.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or
other distribution on any class of Common Stock of
the Company in Common Stock, the Settlement Rate in
effect at the opening of business on the day
following the date fixed for the determination of
stockholders entitled to receive such dividend or
other distribution shall be increased by dividing
such Settlement Rate by a fraction of which the
numerator shall be the number of shares of Common
Stock outstanding at the close of business on the
date fixed for such determination and the denominator
shall be the sum of such number of shares and the
total number of shares constituting such dividend or
other distribution, such increase to become effective
immediately after the opening of business on the day
following the date fixed for such determination. For
the purposes of this paragraph (1), the number of
shares of Common Stock at any time outstanding shall
not include shares held in the treasury of the
Company but shall include shares issuable in respect
of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any
dividend or make any distribution on shares of Common
Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or
warrants to all holders of its Common Stock (not
being available on an equivalent basis to Holders of
the Securities upon settlement of the Purchase
Contracts underlying such Securities) entitling them,
for a period expiring within 45 days after the record
date for the determination of stockholders entitled
to receive such rights, options or warrants, 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 date fixed for
the determination of stockholders entitled to receive
such rights, options or warrants (other than pursuant
to a dividend reinvestment plan), the Settlement Rate
in effect at the opening of business on the day
following the date fixed for such determination shall
be increased by dividing such Settlement Rate by a
fraction of which the numerator shall be the number
of shares of Common Stock outstanding at the close of
business on the date fixed for such determination
plus the number of shares of Common Stock which the
aggregate of the offering price of the total number
of shares of Common Stock so offered for subscription
or purchase would purchase at such Current Market
Price and the denominator shall be the number of
shares of Common Stock outstanding at the close of
business on the date fixed for such determination
plus the number of shares of Common Stock so offered
for subscription or purchase, such increase to become
effective immediately after the opening of business
on the day following the date fixed for such
determination. For the purposes of this paragraph
(2), the number of shares of Common Stock at any time
22
outstanding shall not include shares held in the
treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in
lieu of fractions of shares of Common Stock. The
Company shall not issue any such rights, options or
warrants in respect of shares of Common Stock held in
the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common
Stock, the Settlement Rate in effect at the opening
of business on the day following the day upon which
such subdivision becomes effective shall be
proportionately increased, and, conversely, in case
outstanding shares of Common Stock shall each be
combined into a smaller number of shares of Common
Stock, the Settlement Rate in effect at the opening
of business on the day following the day upon which
such combination becomes effective shall be
proportionately reduced, such increase or reduction,
as the case may be, to become effective immediately
after the opening of business on the day following
the day upon which such subdivision or combination
becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock
evidences of its indebtedness or assets (including
securities, but excluding any rights or warrants
referred to in paragraph (2) of this Section, any
dividend or distribution paid exclusively in cash and
any dividend or distribution referred to in paragraph
(1) of this Section), the Settlement Rate shall be
adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate in effect
immediately prior to the close of business on the
date fixed for the determination of stockholders
entitled to receive such distribution by a fraction
of which the numerator shall be the Current Market
Price per share of the Common Stock on the date fixed
for such determination less the then fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution filed with the Agent) of the portion
of the assets or evidences of indebtedness so
distributed applicable to one share of Common Stock
and the denominator shall all be such Current Market
Price per share of the Common Stock, such adjustment
to become effective immediately prior to the opening
of business on the day following the date fixed for
the determination of stockholders entitled to receive
such distribution. In any case in which this
paragraph (4) is applicable, paragraph (2) of this
Section shall not be applicable.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash
(excluding any cash that is distributed in a
Reorganization Event to which Section 506(b) applies
or as part of a distribution referred to in paragraph
(4) of this Section) in an aggregate amount that,
combined together with (I) the aggregate amount of
any other distributions to all holders of its Common
Stock made exclusively in cash
23
within the 12 months preceding the date of payment of
such distribution and in respect of which no
adjustment pursuant to this paragraph (5) or
paragraph (6) of this Section has been made and (II)
the aggregate of any cash plus the fair market value
(as determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution) of consideration payable in respect
of any tender or exchange offer by the Company or any
of its subsidiaries for all or any portion of the
Common Stock concluded within the 12 months preceding
the date of payment of such distribution and in
respect of which no adjustment pursuant to this
paragraph (5) or paragraph (6) of this Section has
been made, exceeds 10% of the product of the Current
Market Price per share of the Common Stock on the
date for the determination of holders of shares of
Common Stock entitled to receive such distribution
times the number of shares of Common Stock
outstanding on such date, then, and in each such
case, immediately after the close of business on such
date for determination, the Settlement Rate shall be
increased so that the same shall equal the rate
determined by dividing the Settlement Rate in effect
immediately prior to the close of business on the
date fixed for determination of the stockholders
entitled to receive such distribution by a fraction
(i) the numerator of which shall be equal to the
Current Market Price per share of the Common Stock on
the date fixed for such determination less an amount
equal to the quotient of (x) the excess of such
combined amount over such 10% and (y) the number of
shares of Common Stock outstanding on such date for
determination and (ii) the denominator of which shall
be equal to the Current Market Price per share of the
Common Stock on such date for determination.
(6) In case a tender or exchange offer made by the
Company or any subsidiary of the Company for all or
any portion of the Common Stock shall expire and such
tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to
stockholders (based on the acceptance (up to any
maximum specified in the terms of the tender or
exchange offer) of Purchased Shares) of an aggregate
consideration having a fair market value (as
determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution) that combined together with (I) the
aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution), as of the expiration of such
tender or exchange offer, of consideration payable in
respect of any other tender or exchange offer, by the
Company or any subsidiary of the Company for all or
any portion of the Common Stock expiring within the
12 months preceding the expiration of such tender or
exchange offer and in respect of which no adjustment
pursuant to
24
paragraph (5) of this Section or this paragraph (6)
has been made and (II) the aggregate amount of any
distributions to all holders of the Company's Common
Stock made exclusively in cash within 12 months
preceding the expiration of such tender or exchange
offer and in respect of which no adjustment pursuant
to paragraph (5) of this Section or this paragraph
(6) has been made, exceeds 10% of the product of the
Current Market Price per share of the Common Stock as
of the last time (the "Expiration Time") tenders
could have been made pursuant to such tender or
exchange offer (as it may be amended) times the
number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration
Time, then, and in each such case, immediately prior
to the opening of business on the day after the date
of the Expiration Time, the Settlement Rate shall be
adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate
immediately prior to close of business on the date of
the Expiration Time by a fraction (i) the numerator
of which shall be equal to (A) the product of (I) the
Current Market Price per share of the Common Stock on
the date of the Expiration Time and (II) the number
of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time less (B) the
amount of cash plus 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 Purchased Shares, and (ii) the
denominator of which shall be equal to the product of
(A) the Current Market Price per share of the Common
Stock as of the Expiration Time and (B) the number of
shares of Common Stock outstanding (including any
tendered shares) as of the Expiration Time less the
number of all shares validly tendered 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").
(7) The reclassification of Common Stock into securities
including securities other than Common Stock (other
than any reclassification upon a Reorganization Event
to which Section 506(b) applies) shall be deemed to
involve (a) a distribution of such securities other
than Common Stock to all holders of Common Stock (and
the effective date of such reclassification shall be
deemed to be "the date fixed for the determination of
stockholders entitled to receive such distribution"
and the "date fixed for such determination" within
the meaning of paragraph (4) of this Section), and
(b) a subdivision or combination, as the case may be,
of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the
number of shares of Common Stock outstanding
immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day
upon which such subdivision becomes effective" or
"the day upon which such combination becomes
effective", as the case may be, and "the day upon
which such subdivision or combination becomes
effective" within the meaning of paragraph (3) of
this Section).
(8) The "Current Market Price" per share of Common Stock
on any day means the average of the daily Closing
Prices for the 5 consecutive Trading Days selected by
the Company commencing not more than 20 Trading Days
before, and ending not later than, the earlier of the
day in question and the day before the "ex" date with
respect to the issuance or
25
distribution requiring such computation. For purposes
of this paragraph, the term "`ex date," when used
with respect to any issuance or distribution, shall
mean the first date on which the Common Stock trades
regular way on such exchange or in such market
without the right to receive such issuance or
distribution.
(9) All adjustments to the Settlement Rate shall be
calculated to the nearest 1/10,000th of a share of
Common Stock (or if there is not a nearest 1/10,000th
of a share to the next lower 1/10,000th of a share).
No adjustment in the Settlement Rate shall be
required unless such adjustment would require an
increase or decrease of at least one percent therein;
provided, however, that any adjustments which by
reason of this subparagraph are not required to be
made shall be carried forward and taken into account
in any subsequent adjustment. If an adjustment is
made to the Settlement Rate pursuant to paragraph
(1), (2), (3), (4), (5), (6), (7) or (10) of this
Section 506(a), an adjustment shall also be made to
the Applicable Market Value solely to determine which
of clauses (a), (b) or (c) of the definition of
Settlement Rate in Section 501 will apply on the
Final Settlement Date. Such adjustment shall be made
by multiplying the Applicable Market Value by a
fraction of which the numerator shall be the
Settlement Rate in clause (c) of the Settlement Rate
definition in Section 501 immediately after such
adjustment pursuant to paragraph (1), (2), (3), (4),
(5), (6), (7) or (10) of this Section 506(a) and the
denominator shall be the Settlement Rate in clause
(c) of the Settlement Rate definition in Section 501
immediately before such adjustment.
(10) The Company may make such increases in the Settlement
Rate, in addition to those required by this Section,
as it considers to be advisable in order to avoid or
diminish any income tax to any holders of shares of
Common Stock resulting from any dividend or
distribution of stock or issuance of rights or
warrants to purchase or subscribe for stock or from
any event treated as such for income tax purposes or
for any other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event.
In the event of (i) any consolidation or merger of the Company, with or into
another Person (other than a merger or consolidation in which the Company is the
continuing corporation and in which the Common Stock outstanding immediately
prior to the merger or consolidation is not exchanged for cash, securities or
other property of the Company or another corporation), (ii) any sale, transfer,
lease or conveyance to another Person of the property of the Company as an
entirety or substantially as an entirety, (iii) any statutory exchange of
securities of the Company with another Person (other than in connection with a
merger or acquisition) or (iv) any liquidation, dissolution or winding up of the
Company (any such event, a "Reorganization Event"), the Settlement Rate will be
adjusted to provide that each Holder of Securities will receive on the Final
Settlement Date with respect to each Purchase Contract forming a part thereof,
the kind and amount of securities, cash and other property receivable upon such
Reorganization Event by a Holder of the number of shares of Common Stock
issuable on
26
account of each Purchase Contract if the Final Settlement Date had occurred
immediately prior to such Reorganization Event, assuming such Holder of Common
Stock is not a Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("constituent Person"), or an Affiliate of
a constituent Person, and failed to exercise his rights of election, if any, as
to the kind or amount of securities, cash and other property receivable upon
such Reorganization Event (provided that if the kind or amount of securities,
cash and other property receivable upon such Reorganization Event is not the
same for each share of Common Stock held immediately prior to such
Reorganization Event by other than a constituent Person or an Affiliate thereof
and in respect of which such rights of election shall not have been exercised
("nonelecting share"), then for the purpose of this Section the kind and amount
of securities, cash and other property receivable upon such Reorganization Event
by each nonelecting share shall be deemed to be the kind and amount so
receivable per share by a plurality of the nonelecting shares). In the event of
such a Reorganization Event, the Person formed by such consolidation, merger or
exchange or the Person which acquires the assets of the Company or, in the event
of a liquidation or dissolution of the Company, the Company or a liquidating
trust created in connection therewith, shall execute and deliver to the Agent an
agreement supplemental hereto providing that the Holders of each Outstanding
Security shall have the rights provided by this Section 506. Such supplemental
agreement shall provide for adjustments which, for events subsequent to the
effective date of such supplemental agreement, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section. The above
provisions of this Section shall similarly apply to successive Reorganization
Events.
SECTION 507. 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 506 and prepare and transmit
to the Agent an Officer's Certificate setting forth
the Settlement Rate, the method of calculation
thereof in reasonable detail, and the facts requiring
such adjustment and upon which such adjustment is
based; and
(ii) within 10 Business Days following the occurrence of
an event that permits or requires an adjustment to
the Settlement Rate pursuant to Section 506 (or if
the Company is not aware of such occurrence, as soon
as practicable after becoming so aware), provide a
written notice to the Holders of the Securities of
the occurrence of such event and a statement in
reasonable detail setting forth the method by which
the adjustment to the Settlement Rate was determined
and setting forth the adjusted Settlement Rate.
(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
27
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 508. TERMINATION EVENT; 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 Fee,
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, a Termination Event shall have occurred. Upon the
occurrence of a Termination Event, the Company shall give written notice to the
Agent, the Collateral Agent and to the Holders, at their addresses as they
appear in the Security Register. Upon and after the occurrence of a Termination
Event, the Securities shall thereafter represent the right to receive the
Treasury Notes forming a part of such Securities in accordance with the
provisions of Section 402 and the Pledge Agreement.
SECTION 509. EARLY SETTLEMENT.
(a) Subject to and upon compliance with the provisions of this
Section 509 at the option of the Holder thereof, any Purchase
Contracts underlying Securities having an aggregate Stated
Amount equal to $____________ or an integral multiple thereof
may be settled early ("Early Settlement") as provided herein.
In order to exercise the right to effect Early Settlement with
respect to any Purchase Contracts, the Holder of the Security
Certificate evidencing such Purchase Contracts 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 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 an amount (the
"Early Settlement Amount") equal to (i) the product of (A) the
Stated Amount times (B) the number of Purchase Contracts with
respect to which the Holder has elected to effect Early
Settlement minus (ii) the aggregate amount of Contract Fees,
if any, otherwise payable on or prior to the immediately
preceding Payment Date deferred at the option of the Company
pursuant to Section 503 and remaining unpaid as of such
immediately preceding Payment Date plus (iii) 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, an amount equal to the sum of (x) the Contract
Fees 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. Except as
provided in the immediately preceding sentence and subject to
the last paragraph of Section 502, no payment or adjustment
shall be made upon Early Settlement of any Purchase Contract
on account of any Contract Fees accrued on such Purchase
28
Contract or on account of any dividends on the Common Stock
issued upon such Early Settlement. 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
"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 "Early Settlement Date" with respect to such
Securities shall be the next succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Company shall issue, and the Holder
shall be entitled to receive, a number of shares of Common
Stock on account of each Purchase Contract as to which Early
Settlement is effected equal to the Early Settlement Rate. The
Early Settlement Rate shall initially be equal to
________________ and shall be adjusted in the same manner and
at the same time as the Settlement Rate is adjusted. As
promptly as practicable after Early Settlement of Purchase
Contracts in accordance with the provisions of this Section
509, the Company shall issue and shall deliver to the Agent at
the Corporate Trust Office a certificate or certificates for
the full number of shares of Common Stock issuable upon such
Early Settlement together with payment in lieu of any fraction
of a share, as provided in Section 510.
(c) The Company shall cause the shares of Common Stock issuable,
and Treasury Notes deliverable, upon Early Settlement of
Purchase Contracts to be issued and delivered, in the case of
such shares of Common Stock, and released from the Pledge by
the Collateral Agent and transferred, in the case of such
Treasury Notes, to the Agent, for delivery to the Holder
thereof or its designee, no later than the third Business Day
after the applicable Early Settlement Date.
(d) Upon Early Settlement of any Purchase Contracts, and subject
to receipt thereof from the Company or the Collateral Agent,
as applicable, the Agent shall, in accordance with the
instructions provided by the Holder thereof on the applicable
form of Election to Settle Early on the reverse of the
Security Certificate evidencing the related Securities, (i)
transfer the Treasury Notes forming a part of such Securities
and (ii) deliver a certificate or certificates for the full
number of shares of Common Stock issuable upon such Early
Settlement together with payment in lieu of any fraction of a
share, as provided in Section 510.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities
evidenced by a Security Certificate, upon such 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 Early Settlement was not
effected.
29
SECTION 510. NO FRACTIONAL SHARES.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Final Settlement Date
or upon Early Settlement of any Purchase Contracts. 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 upon Early Settlement, 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 Closing Price per share on the
Trading Day immediately preceding the Final Settlement Date or the related Early
Settlement Date, respectively. 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 510 in a timely manner.
SECTION 511. 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; 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 SIX
REMEDIES
SECTION 601. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE CONTRACT FEE.
Notwithstanding any other provision in this Agreement, 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 503),
to receive payment of each installment of the Contract Fee 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 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.
30
SECTION 602. 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 603. 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 306, 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 604. 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 605. 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 Fee 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.
31
SECTION 606. 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 SEVEN
THE AGENT
SECTION 701. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) 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 no implied
covenants or obligations shall be read into this Agreement
against the Agent; and 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.
(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
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) 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
(3) 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 or
liability is not reasonably assured to it.
32
(d) 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 702. NOTICE OF DEFAULT.
Within 90 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 703. CERTAIN RIGHTS OF AGENT.
Subject to the provisions of Section 701:
(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 Officer's 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 Officer's 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; and
33
(f) the Agent may execute any of its powers hereunder or perform
any duties hereunder either directly or by or through agents
or attorneys and the Agent shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 704. 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 correctness. The Agent makes no representations as to the validity or
sufficiency of this Agreement or of the Securities. The Agent shall not be
accountable for the use or application by the Company of the proceeds in respect
of the Purchase Contracts.
SECTION 705. MAY HOLD SECURITIES.
Any Security Registrar or any other agent of the Company, or the Agent,
in its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company with the same rights it would
have if it were not Security Registrar or such other agent, or the Agent.
SECTION 706. MONEY HELD IN TRUST.
Money held by the Agent in trust 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 as otherwise agreed with the Company.
SECTION 707. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Agent from time to time reasonable compensation
for all services rendered by it hereunder;
(2) 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; and
(3) 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.
34
SECTION 708. CORPORATE AGENT REQUIRED; ELIGIBILITY.
There shall at all times be an Agent hereunder which shall be a
corporation 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 a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by Federal or
State authority and having its Corporate Trust Office in _____________________,
if there be such a corporation in ____________________________________ 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 709. 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 710.
(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 710 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
(1) 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
(2) the Agent shall cease to be eligible under Section
708 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) 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
35
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 710. If no successor Agent shall have
been so appointed by the Company and accepted appointment in
the manner required by Section 710, 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 710. 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.
36
SECTION 711. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
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 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,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Security Certificates shall have been
authenticated and executed on behalf of the Holders, but not delivered, by the
Agent then in office, any successor by merger, conversion or consolidation to
such Agent may adopt such authentication and execution and deliver the Security
Certificates so authenticated and executed with the same effect as if such
successor Agent had itself authenticated and executed such Securities.
SECTION 712. 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 712(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 712(b),
regardless of the source from which such information was
derived.
SECTION 713. 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 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
37
obligation to perform such Purchase Contracts on behalf of the Holders, except
to the extent expressly provided in Article Five hereof.
SECTION 714. TAX COMPLIANCE.
(a) The Agent, on its own behalf and on behalf 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 701(a)(2) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records
available on request to the Company or to its authorized
representative.
ARTICLE EIGHT
SUPPLEMENTAL AGREEMENTS
SECTION 801. 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:
(1) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of
the Company herein and in the Security Certificates; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred
upon the Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent; or
(4) to make provision with respect to the rights of Holders
pursuant to the requirements of Section 506(b); or
38
(5) 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 802. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority of the
Outstanding Securities 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 the manner the
terms of the Securities, or the provisions of this 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,
(1) change any Payment Date;
(2) 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;
(3) reduce any Contract Fee or change any place where, or the coin
or currency in which, any Contract Fee is payable;
(4) impair the right to institute suit for the enforcement of any
Purchase Contract;
(5) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to
purchase shares of Common Stock upon settlement of any
Purchase Contract, change the Final Settlement Date or
otherwise adversely affect the Holder's rights under any
Purchase Contract; or
(6) reduce the percentage of the Outstanding Securities the
consent of whose Holders is required for any such supplemental
agreement.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 803. 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 701) 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.
39
SECTION 804. 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 805. 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 NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 901. COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY PROPERTY EXCEPT
UNDER CERTAIN CONDITIONS.
The Company covenants that it will not merge or consolidate with any
other Person or sell or convey all or substantially all of its assets to any
Person, except that the Company may merge or consolidate with, or sell or convey
all or substantially all of its assets to, any other Person, provided that (i)
the Company shall be the continuing corporation, or the successor (if other than
the Company) shall be a corporation organized and existing under the laws of the
United States of America or a State thereof and such corporation shall assume
the obligations of the Company under the Purchase Contracts, this Agreement and
the Pledge Agreement by one or more supplemental agreements in form satisfactory
to the Agent and the Collateral Agent, executed and delivered to the Agent and
the Collateral Agent by such corporation, and (ii) the Company or such successor
corporation, as the case may be, shall not, immediately after such merger or
consolidation, or such sale or conveyance, be in default in the performance of
any covenant or condition hereunder, under any of the Securities or under the
Pledge Agreement.
SECTION 902. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
In case of any such consolidation, merger, sale or conveyance and upon
any such assumption by the successor corporation, such successor corporation
shall succeed to and be substituted for the Company with the same effect as if
it had been named herein as the Company. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the name of
Ferro Corporation, any or all of the Security Certificates evidencing Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Agent; and, upon the order of such successor corporation,
instead of the Company, and subject to all the terms, conditions and limitations
in this Agreement prescribed,
40
the Agent shall authenticate and execute on behalf of the Holders and deliver
any Security Certificates which previously shall have been signed and delivered
by the officers of the Company to the Agent for authentication and execution,
and any Security Certificate evidencing Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Agent for
that purpose. All the Security Certificates so issued shall in all respects have
the same legal rank and benefit under this Agreement as the Security
Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Security Certificates had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
change in phraseology and form (but not in substance) may be made in the
Security Certificates evidencing Securities thereafter to be issued as may be
appropriate.
SECTION 903. OPINION OF COUNSEL TO AGENT.
The Agent, subject to Sections 701 and 703, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article.
ARTICLE TEN
COVENANTS
SECTION 1001. 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 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in ______________________________________ an
office or agency where Security Certificates may be presented or surrendered for
acquisition of shares of Common Stock upon settlement or Early Settlement and
for transfer of Treasury Notes upon occurrence of a Termination Event, 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 ______________________________________________ for such purposes. The
41
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 1003. COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times prior to the Final Settlement 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 1004. 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 1005. 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 Officer's
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.
FERRO CORPORATION
Attested by:
By:
------------------------------- ------------------------------------
----------------------------------------
Attested by:
By:
------------------------------- ------------------------------------
42
EXHIBIT A
FERRO CORPORATION
_____% ________________ SECURITIES
(STATED AMOUNT $____________ PER SECURITY)
No. Securities
This Security Certificate certifies that _______________________ is the
registered Holder of the number of Securities set forth above. Each Security
represents ownership by the Holder of _____% United States Treasury Notes due
________________ ("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 with Ferro Corporation, an Ohio corporation (the "Company").
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 constituting
part of such Security.
The Pledge Agreement provides that all payments of principal of, or
interest on, any Treasury Notes constituting part 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 ________, 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 or after ________, New York City time, on a Business Day, then such payment
shall be made no later than ________, 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 Notes forming part
of a Security evidenced hereby which is paid on any or, commencing, 20___ (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.
Each Purchase Contract evidenced hereby obligates 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, par value $1.00 per share ("Common
Stock"), of the Company, equal to the Settlement Rate, unless on or prior to the
Final Settlement Date there shall have occurred a Termination Event or 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
43
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, 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, on each Payment Date, in respect of each
Purchase Contract forming part of a Security evidenced hereby a fee (the
"Contract Fee") equal to _____% per annum of the Stated Amount, from
________________, 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. Such Contract Fee 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 Fee will be payable at
the office of the Agent in ____________________ 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.
44
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
FERRO CORPORATION
By:
--------------------------------------
Attest:
----------------------------- HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase
Contracts evidenced hereby)
By:
--------------------------------------
as Attorney-in-Fact of such Holder
By:
--------------------------------------
Dated:
--------------------------------------
This is one of the Security Certificates referred to in the within
mentioned Purchase Contract Agreement
______________________________________,
as Agent
______________________________________.
By:
45
Form of Reverse of Security Certificate
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of ________________ (the "Purchase Contract
Agreement"), between the Company and ________________, as 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 obligates 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, unless, on or prior to
the Final Settlement Date, there shall have occurred a Termination Event or an
Early Settlement with respect to the Security of which such Purchase Contract is
a part. The "Settlement Rate" is equal to (a) if the Applicable Market Value (as
defined below) is greater than $____________ (the "Threshold Appreciation
Price"), of a share of Common Stock per Purchase Contract, (b) if the Applicable
Market Value is less than or equal to the Threshold Appreciation Price but is
greater than the Stated Amount, a fractional share of Common Stock per Purchase
Contract equal to the Stated Amount divided by the Applicable Market Value and
(c) if the Applicable Market Amount is less than or equal to the Stated Amount,
one share of Common Stock per Purchase Contract, in each case subject to
adjustment as provided in the Purchase Contract. No fractional shares of Common
Stock will be issued upon settlement of Purchase Contracts, as provided in the
Purchase Contract Agreement.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the twenty consecutive Trading Days ending
on the last Trading Day immediately preceding the Final Settlement Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The Nasdaq Stock Market, or, if the Common Stock is not
so reported, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company. A "Trading
Day" means a day on which the Common Stock (A) 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 (B) 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.
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 from the Collateral Agent pursuant to the
Pledge Agreement in respect of the
46
principal of the Treasury Notes Pledged to secure the obligations of the
relevant Holder under such Purchase Contract. 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.
Subject to the next succeeding paragraph, the Company shall pay, on
each Payment Date, the Contract Fee payable in respect of each Purchase Contract
to the Person in whose name the Security Certificate evidencing such Purchase
Contract is registered at the close of business on the Record Date next pre
ceding such Payment Date. Contract Fees will be payable at the office of the
Agent in _____________________ 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 Company shall have the right, at any time prior to the Final
Settlement Date, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date, 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) as provided in the Purchase Contract
Agreement. Any Contract Fees so deferred shall bear additional Contract Fees
thereon at the rate of _____% 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. Deferred
Contract Fees (and additional Contract Fees accrued thereon) shall be due on the
next succeeding Payment Date except to the extent that payment is deferred
pursuant to the Purchase Contract Agreement. No Contract Fees may be deferred to
a date that is after the Final Settlement Date.
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 Fee,
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, a Termination Event shall have occurred. Upon the
occurrence of a Termination Event, the Company shall give written notice to the
Agent and to the Holders, at their addresses as they appear in the Security
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Treasury Notes from the Pledge. The Securities shall
thereafter represent the right to receive the Treasury Notes forming a part of
such Securities in accordance with the provisions of the Purchase Contract
Agreement and the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement at the option of the Holder thereof, Purchase Contracts
underlying Securities having an aggregate Stated Amount equal to $____________
or an integral multiple thereof may be settled early ("Early Settlement") as
provided in the Purchase Contract Agreement. In order to exercise the right to
effect 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 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 an amount (the "Early Settlement Amount") equal to (i) the
product of (A) the
47
Stated Amount times (B) the number of Purchase Contracts with respect to which
the Holder has elected to effect Early Settlement minus (ii) the aggregate
amount of Contract Fees, if any, otherwise payable on or prior to the
immediately preceding Payment Date deferred at the option of the Company
pursuant to the Purchase Contract Agreement and remaining unpaid as of such
immediately preceding Payment Date plus (iii) 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, an amount equal to the sum of (x) the Contract Fees payable
on such Payment Date with respect to such Purchase Contracts plus (y) the
interest with respect to the related Treasury Notes payable on such Payment
Date. Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Treasury Notes underlying such Securities shall be released from
the Pledge as provided in the Pledge Agreement and the Holder shall be entitled
to receive, a number of shares of Common Stock on account of each Purchase
Contract forming part of a Security as to which Early Settlement is effected
equal to the Early Settlement Rate. The Early Settlement Rate shall initially be
equal to and shall be adjusted in the same manner and at the same time as the
Settlement Rate is adjusted as provided in the Purchase Contract Agreement.
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 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, 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,
48
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 a majority
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 ________________.
The Company, 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,
performance of the Purchase Contracts 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 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.
49
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after 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 under
signed, the undersigned will pay any transfer tax payable incident thereto.
Dated: Signature:
------------------------- --------------------------------
If shares are to be registered
in the name of and delivered to a REGISTERED HOLDER
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
ELECTION TO SETTLE EARLY
The undersigned Holder of this Security Certificate hereby irrevocably
exercises the option to effect 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 option to effect Early Settlement may be exercised only
with respect to Purchase Contracts underlying Securities with an aggregate
Stated Amount equal to $____________ or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of
________________, and delivered, together with a check in payment for any
fractional share and any Security Certificate representing any Securities
evidenced
50
hereby as to which 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. Treasury Notes deliverable upon such
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 Early Settlement of
the related Purchase Contracts is being elected: ________________________.
If shares are to be registered
in the name of and delivered to a Person REGISTERED HOLDER
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 Early Settlement or a
Termination Event:
-------------------------------
-------------------------------
-------------------------------
51
