Exhibit 4.10
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FORM OF
PURCHASE CONTRACT AGREEMENT
BETWEEN
OHIO CASUALTY CORPORATION
AND
[ ]
AS PURCHASE CONTRACT AGENT
DATED AS OF [DATE]
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Reconciliation and Tie
between Trust Indenture Act
of 1939 and Purchase Contract
Agreement dated as of [DATE]
Section of Section of
Trust Indenture Act Purchase Contract
of 1939, as amended Agreement
310(a) ............................................ 7.8
310(b)............................................. 7.9(g),11.8
310(c)............................................. Inapplicable
311(a)............................................. 11.2(b)
311(b)............................................. 11.2(b)
311(c)............................................. Inapplicable
312(a)............................................. 11.2(a)
312(b)............................................. 11.2(b)
313................................................ 11.3
314(a)............................................. 11.4
314(b)............................................. Inapplicable
314(c)............................................. 11.5
314(d)............................................. Inapplicable
314(e)............................................. 1.2,1.3,11.5
314(f)............................................. 11.1
315(a)............................................. 7.1(a)
315(b)............................................. 7.2
315(c)............................................. 7.1(e)
315(d)............................................. 7.1(b)
316(a)............................................. 11.6
316(b)............................................. 6.1
316(c)............................................. 11.2
317(a)............................................. Inapplicable
317(b)............................................. Inapplicable
318(a)............................................. 11.1(b)
318(b)............................................. 11.1
318(c)............................................. 11.1(a)
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Purchase Contract Agreement.
TABLE OF CONTENTS
Page
ARTICLE I Definitions and Other Provisions of General Applications.......................................1
Section 1.1 Definitions..........................................................................1
Section 1.2 Compliance Certificates and Opinions................................................14
Section 1.3 Form of Documents Delivered to Purchase Contract Agent..............................15
Section 1.4 Acts of Holders; Record Dates.......................................................15
Section 1.5 Notices.............................................................................17
Section 1.6 Notice to Holders; Waiver...........................................................18
Section 1.7 Effect of Headings and Table of Contents............................................18
Section 1.8 Successors and Assigns..............................................................18
Section 1.9 Severability........................................................................18
Section 1.10 Benefits of Agreement...............................................................19
Section 1.11 Governing Law; Jurisdiction and Venue...............................................19
Section 1.12 Legal Holidays......................................................................19
Section 1.13 Counterparts........................................................................20
Section 1.14 Inspection of Agreement.............................................................20
ARTICLE II Certificate Forms............................................................................20
Section 2.1 Forms of Certificates Generally.....................................................20
Section 2.2 Form of Purchase Contract Agent's Certificate of Authentication.....................21
ARTICLE III The Units...................................................................................21
Section 3.1 Amount; Form and Denominations......................................................21
Section 3.2 Rights and Obligations Evidenced by the Certificates................................22
Section 3.3 Execution, Authentication, Delivery and Dating......................................23
Section 3.4 Temporary Certificates..............................................................23
Section 3.5 Registration; Registration of Transfer and Exchange.................................24
Section 3.6 Book-Entry Interests................................................................25
Section 3.7 Notices to Holders..................................................................26
Section 3.8 Appointment of Successor Depositary.................................................26
Section 3.9 Definitive Certificates.............................................................26
Section 3.10 Mutilated, Destroyed, Lost and Stolen Certificates..................................27
Section 3.11 Persons Deemed Owners...............................................................28
Section 3.12 Cancellation........................................................................29
Section 3.13 Creation of Treasury Units by Substitution of Treasury Securities...................29
Section 3.14 Recreation of Corporate Units.......................................................31
Section 3.15 Transfer of Collateral upon Occurrence of Termination Event.........................32
Section 3.16 No Consent to Assumption............................................................33
ARTICLE IV The Debt Securities..........................................................................33
Section 4.1 Interest Payments; Rights to Interest Preserved.....................................33
Section 4.2 Interest Rate Reset.................................................................35
Section 4.3 Notice and Voting...................................................................35
ARTICLE V The Purchase Contracts; The Remarketing.......................................................36
Section 5.1 Purchase of Shares of Common Stock..................................................36
Section 5.2 Purchase Contract Adjustment Payments...............................................38
Section 5.3 Payment of Purchase Price; Remarketing..............................................40
Section 5.4 Issuance of Shares of Common Stock..................................................45
Section 5.5 Adjustment of Settlement Rate and Early Settlement Rate.............................46
Section 5.6 Notice of Adjustments and Certain Other Events......................................54
Section 5.7 Termination Event; Notice...........................................................55
Section 5.8 Cash Settlement.....................................................................55
Section 5.9 Early Settlement....................................................................58
Section 5.10 Early Settlement Upon Merger........................................................60
Section 5.11 Optional Remarketing................................................................62
Section 5.12 No Fractional Shares................................................................63
Section 5.13 Charges and Taxes...................................................................63
ARTICLE VI Remedies.....................................................................................63
Section 6.1 Unconditional Right of Holders to Receive Purchase Contract Adjustment Payments and
to Purchase Shares of Common Stock..................................................63
Section 6.2 Restoration of Rights and Remedies..................................................64
Section 6.3 Rights and Remedies Cumulative......................................................64
Section 6.4 Delay or Omission Not Waiver........................................................64
Section 6.5 Undertaking for Costs...............................................................64
Section 6.6 Waiver of Stay or Extension Laws....................................................65
ARTICLE VII The Purchase Contract Agent.................................................................65
Section 7.1 Certain Duties and Responsibilities.................................................65
Section 7.2 Notice of Default...................................................................66
Section 7.3 Certain Rights of Purchase Contract Agent...........................................66
Section 7.4 Not Responsible for Recitals or Issuance of Units...................................68
Section 7.5 May Hold Units......................................................................69
Section 7.6 Money Held in Custody...............................................................69
Section 7.7 Compensation and Reimbursement......................................................69
Section 7.8 Corporate Purchase Contract Agent Required; Eligibility.............................70
Section 7.9 Resignation and Removal; Appointment of Successor...................................70
Section 7.10 Acceptance of Appointment by Successor..............................................71
Section 7.11 Merger, Conversion, Consolidation or Succession to Business.........................72
Section 7.12 Preservation of Information; Communications to Holders..............................72
Section 7.13 No Obligations of Purchase Contract Agent...........................................73
Section 7.14 Tax Compliance......................................................................73
ARTICLE VIII Supplemental Agreements....................................................................74
Section 8.1 Supplemental Agreements Without Consent of Holders..................................74
Section 8.2 Supplemental Agreements With Consent of Holders.....................................74
Section 8.3 Execution of Supplemental Agreements................................................75
Section 8.4 Effect of Supplemental Agreements...................................................76
Section 8.5 Reference to Supplemental Agreements................................................76
ARTICLE IX Merger, Consolidation Sale or Conveyance.....................................................76
Section 9.1 When Company May Merge, Etc.........................................................76
Section 9.2 Successor Corporation Substituted...................................................77
Section 9.3 Limitation..........................................................................77
ARTICLE X Covenants.....................................................................................77
Section 10.1 Performance Under Purchase Contracts................................................78
Section 10.2 Maintenance of Office or Agency.....................................................78
Section 10.3 Company to Reserve Common Stock.....................................................78
Section 10.4 Covenants as to Common Stock........................................................79
Section 10.5 Statements of Officers of the Company as to Default.................................79
ARTICLE XI..............................................................................................79
Section 11.1 Trust Indenture Act.................................................................79
Section 11.2 List of Holders of Securities.......................................................79
Section 11.3 Reports by the Purchase Contract Agent..............................................80
Section 11.4 Periodic Reports to Purchase Contract Agent.........................................80
Section 11.5 Evidence of Compliance with Conditions Precedent....................................80
Section 11.6 Defaults; Waiver....................................................................80
Section 11.7 Purchase Contract Agent's Knowledge of Defaults.....................................81
Section 11.8 Conflicting Interests...............................................................81
Section 11.9 Direction of Purchase Contract Agent................................................81
FORM OF FACE OF CORPORATE UNIT CERTIFICATE
ABBREVIATIONS
NOTICE FROM HOLDER TO PURCHASE CONTRACT AGENT (Election
for Creation of Treasury Units or Recreation of Corporate Units)
INSTRUCTION FROM HOLDER
TO PURCHASE CONTRACT AGENT
NOTICE FROM PURCHASE CONTRACT AGENT TO HOLDERS (Transfer
of Collateral upon Occurrence of a Termination Event)
NOTICE TO SETTLE BY CASH
EXHIBITS
EXHIBIT A Form of Face of Corporate Unit Certificate.................................... A-1
EXHIBIT B Form of Face of Treasury Unit Certificate .................................... B-1
EXHIBIT C Notice from Holder to Purchase Contract Agent
(Election for Creation of Treasury Units or Recreation of
Corporate Units) ............................................................. C-1
EXHIBIT D Instruction From Holder to Purchase Contract Agent
(Creation of Treasury Units or Recreation of Corporate Units) ................ D-1
EXHIBIT E Notice from Purchase Contract Agent to Holders
(Transfer of Collateral upon Occurrence of a
Termination Event)............................................................ E-1
EXHIBIT F Notice to Settle by Cash...................................................... F-1
EXHIBIT G Notice from Purchase Contract Agent to
Remarketing Agent, Collateral Agent, Trustee and
the Company (Initial, Subsequent or Final Remarketing)........................ G-1
PURCHASE CONTRACT AGREEMENT, dated as of [DATE], between OHIO
CASUALTY CORPORATION, an Ohio corporation (the "Company"), and [ . ],
acting as purchase contract agent for the Holders of Units from time to time
(the "Purchase Contract Agent").
RECITALS
The Company has duly authorized the execution and delivery of
this Agreement and the Certificates evidencing the Units.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company, authenticated, executed on behalf of
the Holders and delivered by the Purchase Contract Agent, as provided in this
Agreement, the valid obligations of the Company, and to constitute this
Agreement a valid agreement of the Company, in accordance with its terms, have
been done.
For and in consideration of the premises and the purchase of
the Units by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
Definitions and Other Provisions
of General Applications
Section 1.1 Definitions.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) 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 nouns and pronouns
of the masculine gender include the feminine and neuter genders;
(b) all accounting terms not otherwise defined herein have the meanings assigned
to them in accordance with generally accepted accounting principles in the
United States;
(c) 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, Exhibit or other subdivision;
(d) the following terms have the meanings given to them in this Section 1.1(d):
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Adjusted Purchase Contract Adjustment Payment Rate" means,
with respect to any Reset Transaction, the rate per annum that is the arithmetic
average of the rates quoted by two Reference Dealers selected by the Company as
the rate at which Purchase Contract Adjustment Payments should accrue so that
the fair closing price, expressed in dollars, of a Corporate Unit immediately
after the later of (i) public announcement of such Reset Transaction or (ii)
public announcement of a change in dividend policy in connection with such Reset
Transaction will equal the average Trading Price of a Corporate Unit for the 20
Trading Days immediately preceding the date of public announcement of such Reset
Transaction; provided that the Adjusted Purchase Contract Adjustment Payment
Rate shall not be less than ____% per annum.
"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.
"Affiliated Person" with respect to any specified Person means
any other Person that is an Affiliate of such specified Person.
"Agreement" means this Purchase Contract Agreement as the same
may be amended, modified or supplemented from time to time in accordance with
the terms hereof.
"Applicable Closing Price" has the meaning set forth in
Section 5.1.
"Applicants" has the meaning set forth in Section 7.12(b).
"Authorized Newspaper" means The Wall Street Journal, another
daily newspaper in the English language of general circulation in New York, New
York that is acceptable to the Remarketing Agent or, at the discretion of the
Remarketing Agent after consultation with the Company, a nationally recognized
quotation system that would be an effective medium of publicizing the event to
be publicized.
"Bankruptcy Code" means Title 11 of the United States Code, or
any other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry
Interest, a Person who is the beneficial owner of such Book-Entry Interest as
reflected on the books of the Depositary or on the books of a Person maintaining
an account with such Depositary (directly as a Depositary Participant or as an
indirect participant, in each case in accordance with the rules of such
Depositary).
"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 or unanimous
written consents of the Board of Directors, a copy each 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 Purchase Contract Agent.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Depositary as described in Section 3.6.
"Business Day" means any day other than a Saturday or Sunday
or a day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed.
"Cash Merger" has the meaning set forth in Section 5.10(a).
"Cash Merger Date" has the meaning set forth in Section
5.10(a).
"Cash Settlement" has the meaning set forth in Section
5.8(a)(i).
"Certificate" means a Corporate Unit Certificate or a Treasury
Unit Certificate.
"Closing Price" has the meaning set forth in Section 5.1.
"Code" means the Internal Revenue Code of 1986, as amended,
and the rules and regulations promulgated thereunder.
"Collateral" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Collateral Account" has the meaning set forth in Section 1 of
the Pledge Agreement.
"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.
"Collateral Substitution" means the substitution of Treasury
Securities, for a Holder's Debt Securities, pursuant to Section 3.13 of this
Agreement and Section 5.2 of the Pledge Agreement, and the substitution of a
Holder's Debt Securities for Treasury Securities, pursuant to Section 3.14 of
this Agreement and Section 5.3 of the Pledge Agreement.
"Common Stock" means the common stock, no par value per share,
of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such pursuant
to the applicable provision of this Agreement, and thereafter "Company" shall
mean such successor.
"Constituent Person" has the meaning set forth in Section
5.5(b).
"Corporate Unit" means the collective rights and obligations
of a Holder of a Corporate Unit Certificate in respect of the Debt Securities
or, if substituted therefore, in respect of the Treasury Portfolio Interest, in
each case, subject to the Pledge thereof, and the related Purchase Contract.
"Corporate Unit Certificate" means a certificate evidencing
the rights and obligations of a Holder in respect of the number of Corporate
Units specified on such certificate.
"Corporate Units Register" and "Corporate Units Registrar"
have the respective meanings specified in Section 3.5.
"Corporate Trust Office" means the office of the Purchase
Contract Agent at which, at any particular time, its corporate trust business
shall be principally administered, which office at the date hereof is located at
_____________________________, Attention: _______________.
"Coupon Rate" means the percentage rate per annum at which
each Debt Security will bear interest initially.
"Current Market Price" has the meaning specified in Section
5.5(a)(8).
"Debt Securities" means the ____% Debt Securities due ____ to
be issued by the Company under the Indenture, each having a minimum denomination
of $50 and bearing interest, payable on the Payment Dates, initially at the
Coupon Rate to, but excluding, the Remarketing Settlement Date or the Purchase
Contract Settlement Date, as applicable, and, thereafter, at the Reset Rate, in
each case pursuant to the Indenture. Any reference herein to "one Debt
Security," "a Debt Security" or "the Debt Security" or any phrase herein having
a similar meaning shall be a reference to a Debt Security in the principal
amount of $50.
"Depositary" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Units and in whose name, or in the name of a nominee of that
organization, shall be registered a Global Certificate and which shall undertake
to effect book-entry transfers and pledges of the Units. Initially, DTC shall be
the Depositary.
"Depositary Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Depositary
effects book-entry transfers and pledges of securities deposited with the
Depositary.
"Dividend Yield" means, with respect to any security for any
period, the dividends paid or proposed to be paid pursuant to an announced
dividend policy on such security for such period divided by, if with respect to
dividends paid on such security, the average Closing Price of such security
during such period and, if with respect to dividends so proposed to be paid on
such security, the Closing Price of such security on the effective date of the
related Reset Transaction.
"DTC" means The Depository Trust Company, the initial
Depositary.
"Early Settlement" has the meaning set forth in Section
5.9(a).
"Early Settlement Amount" has the meaning set forth in Section
5.9(a).
"Early Settlement Date" has the meaning set forth in Section
5.9(a).
"Early Settlement Rate" has the meaning set forth in Section
5.9(b).
"Election Date" means the fourth Business Day prior to the
Initial Remarketing Date.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to time, and
the rules and regulations promulgated thereunder.
"Expiration Date" has the meaning set forth in Section 1.4(e).
"Expiration Time" has the meaning set forth in Section
5.5(a)(6).
"Failed Remarketing" has the meaning set forth in Section
5.3(c).
"Final Remarketing" has the meaning set forth in the
Remarketing Agreement.
"Final Remarketing Date" has the meaning set forth in the
Remarketing Agreement.
"Global Certificate" means a Certificate that is issued in
global form, evidencing all or part of the Units, and is registered in the name
of a Depositary or a nominee thereof.
"Holder" means, with respect to a Unit, the Person in whose
name the Unit evidenced by a Corporate Unit Certificate and/or a Treasury Unit
Certificate is registered in the related Corporate Units Register and/or the
Treasury Units Register, as the case may be; provided, however, that in
determining whether the Holders of the requisite number of Corporate Units
and/or Treasury Units have Acted on any matter, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Units
remain in the form of one or more Global Certificates and if the Depositary
which is the registered holder of such Global Certificate has sent an omnibus
proxy assigning voting rights to the Depositary Participants to whose accounts
the Units are credited on the applicable record date, the term "Holder" shall
mean such Depositary Participant acting at the direction of the Beneficial
Owners.
"Indenture" means the Indenture, dated as of [DATE], between
the Company and the Trustee (the "Original Indenture") and the Officers'
Certificate, dated as of [DATE] establishing the terms and other provisions of
the Debt Securities pursuant to the Original Indenture (the "Indenture Officers'
Certificate" and together with the Original Indenture, the "Indenture"), as the
same may be amended, modified or supplemented from time to time in accordance
with the terms thereof.
"Initial Remarketing" has the meaning set forth in the
Remarketing Agreement.
"Initial Remarketing Date" has the meaning set forth in the
Remarketing Agreement.
"Issuer Order" or "Issuer Request" means a written request or
order signed in the name of the Company by (i) either its Chief Executive
Officer, its President or one of its Vice Presidents and (ii) either its
Corporate Secretary or one of its Assistant Corporate Secretaries or its
Treasurer or one of its Assistant Treasurers, and delivered to the Purchase
Contract Agent.
"Merger Early Settlement" has the meaning set forth in Section
5.10.
"Merger Early Settlement Amount" has the meaning set forth in
Section 5.10(b).
"Merger Early Settlement Date" has the meaning set forth in
Section 5.10(a)(i).
"Non-electing Share" has the meaning set forth in Section
5.5(b).
"Officers' Certificate" means a certificate signed by (i)
either the Chief Executive Officer, the President or one of the Vice Presidents
and (ii) either the Corporate Secretary or one of the Assistant Corporate
Secretaries or the Treasurer or one of the Assistant Treasurers, of the Company,
and delivered to the Purchase Contract Agent.
"Opinion of Counsel" means a written opinion of counsel, which
may be counsel for the Company (and who may be an employee of the Company), and
which shall be reasonably acceptable to the Purchase Contract Agent.
"Outstanding Units" means, with respect to any Corporate Unit
or Treasury Unit and as of the date of determination, all Corporate Units or
Treasury Units evidenced by Certificates theretofore authenticated, executed and
delivered under this Agreement, except:
(1) If a Termination Event has occurred, Corporate Units and Treasury
Units for which the related Debt Securities, the Treasury Portfolio
or Treasury Securities, as the case may be, have been theretofore
deposited with the Purchase Contract Agent in trust for the Holders
of such Corporate Units or Treasury Units, as the case may be;
(2) Corporate Units and Treasury Units evidenced by Certificates
theretofore cancelled by the Purchase Contract Agent or delivered to
the Purchase Contract Agent for cancellation or deemed cancelled
pursuant to the provisions of this Agreement; and
(3) Corporate Units and Treasury Units evidenced by Certificates in
exchange for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered
pursuant to this Agreement, other than any such Certificate in
respect of which there shall have been presented to the Purchase
Contract Agent proof satisfactory to it that such Certificate is
held by a bona fide purchaser in whose hands the Corporate Units or
Treasury Units evidenced by such Certificate are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
number of the Corporate Units or Treasury Units have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Corporate Units
or Treasury Units owned by the Company or any Affiliate of the Company shall be
disregarded and deemed not to be Outstanding Units, except that, in determining
whether the Purchase Contract Agent shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Corporate Units or Treasury Units which a Responsible Officer of the Purchase
Contract Agent knows to be so owned shall be so disregarded. Corporate Units or
Treasury Units so owned which have been pledged in good faith may be regarded as
Outstanding Units if the pledgee establishes to the satisfaction of the Purchase
Contract Agent the pledgee's right so to act with respect to such Corporate
Units or Treasury Units and that the pledgee is not the Company or any Affiliate
of the Company.
"Payment Date" means each __________, ___________, __________
and __________, commencing [DATE].
"Permitted Investments" has the meaning set forth in Section 1
of the Pledge Agreement.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof or any other entity of
whatever nature.
"Plan" means an employee benefit plan that is subject to
ERISA, a plan or individual retirement account that is subject to Section 4975
of the Code or any entity whose assets are considered assets of any such plan.
"Pledge" means the pledge under the Pledge Agreement of the
Debt Securities, any Treasury Portfolio or any Treasury Securities, in each
case, constituting a part of the Units.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, by and among the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact for the Holders from time to time of the Units, as the same may
be amended, modified or supplemented from time to time in accordance with the
terms thereof.
"Pledged Debt Securities" has the meaning set forth in Section
1 of the Pledge Agreement.
"Pledged Treasury Portfolio Interest" has the meaning set
forth in Section 1 of the Pledge Agreement.
"Pledged Treasury Securities" has the meaning set forth in
Section 1 of the Pledge Agreement.
"Predecessor Certificate" means a Predecessor Corporate Unit
Certificate or a Predecessor Treasury Unit Certificate.
"Predecessor Corporate Unit Certificate" of any particular
Corporate Unit Certificate means every previous Corporate Unit Certificate
evidencing all or a portion of the rights and obligations of the Company and the
Holder under the Corporate Units evidenced thereby; and, for the purposes of
this definition, any Corporate Unit Certificate authenticated and delivered
under Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Corporate Unit Certificate shall be deemed to evidence the same rights
and obligations of the Company and the Holder as the mutilated, destroyed, lost
or stolen Corporate Unit Certificate.
"Predecessor Treasury Unit Certificate" of any particular
Treasury Unit Certificate means every previous Treasury Unit Certificate
evidencing all or a portion of the rights and obligations of the Company and the
Holder under the Treasury Units evidenced thereby; and, for the purposes of this
definition, any Treasury Unit Certificate authenticated and delivered under
Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Treasury Unit Certificate shall be deemed to evidence the same rights and
obligations of the Company and the Holder as the mutilated, destroyed, lost or
stolen Treasury Unit Certificate.
"Proceeds" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Purchase Contract" means, with respect to any Units, the
contract contained in this Agreement and forming a part of such Units and
obligating (i) the Company to sell, and the Holder of such Units to purchase,
shares of Common Stock and (ii) the Company to pay to the Holder Purchase
Contract Adjustment Payments, in each case, on the terms and subject to the
conditions set forth in Article Five.
"Purchase Contract Adjustment Payments" means the payments
payable by the Company on the Payment Dates in respect of each Purchase
Contract, equal to (a) if a Reset Transaction has not occurred, ____% per annum
of the Stated Amount or (b) following the occurrence of a Reset Transaction, the
Adjusted Purchase Contract Adjustment Payment Rate related to such Reset
Transaction until any succeeding Reset Transaction shall occur, in either case
computed (i) for any full quarterly period on the basis of a 360-day year of
twelve 30-day months, (ii) for any period shorter than a full quarterly period
for which such payments are calculated, on the basis of a 30-day month and (iii)
for periods of less than a month, the actual number of days elapsed per 30-day
month.
"Purchase Contract Agent" means the Person named as the
"Purchase Contract Agent" in the first paragraph of this Agreement until a
successor Purchase Contract Agent shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Purchase Contract
Agent" shall mean such Person.
"Purchase Contract Settlement Date" means [DATE].
"Purchase Contract Settlement Fund" has the meaning set forth
in Section 5.4.
"Purchase Price" has the meaning set forth in Section 5.1.
"Purchased Shares" has the meaning set forth in Section
5.5(a)(6).
"Record Date" for the Purchase Contract Adjustment Payments
payable on any Payment Date means the fifteenth Business Day prior to such
Payment Date.
"Reference Dealer" means a dealer engaged in the trading of
convertible securities.
"Reference Price" has the meaning set forth in Section 5.1.
"Register" means the Corporate Units Register and the Treasury
Units Register.
"Registrar" means the Corporate Units Registrar and the
Treasury Units Registrar.
"Remarketing" means the remarketing of the Remarketing Debt
Securities pursuant to the Remarketing Procedures.
"Remarketing Agent" has the meaning set forth in Section
5.3(b).
"Remarketing Agreement" means the Remarketing Agreement, dated
as of the date hereof, between the Company and the Remarketing Agent, as the
same may be amended, modified or supplemented from time to time in accordance
with the terms thereof.
"Remarketing Date" means the date of any Successful
Remarketing.
"Remarketing Fee" has the meaning set forth in Section 5.3(b).
"Remarketing Procedures" means, collectively, the procedures
and requirements relating to the Remarketing and the determination of the Reset
Rate as set forth in the Indenture, this Agreement, the Pledge Agreement and the
Remarketing Agreement.
"Remarketing Debt Securities" has the meaning set forth in
Section 5.3(b).
"Remarketing Settlement Date" means the date of the settlement
of any Successful Remarketing, which will be three Business Days after such
Remarketing.
"Remarketing Value" means the sum of:
(1) Unless the Remarketing occurs on the Final Remarketing
Date, the value on the Remarketing Date of U.S. Treasury
securities that will mature or pay, on or prior to the
Payment Date falling on the Purchase Contract Settlement
Date, an amount of cash equal to the aggregate interest
that is scheduled to be payable on that Payment Date, on
(i) the Debt Securities that are included in Corporate
Units and (ii) the Separated Debt Securities, in each
case, which are participating in the Remarketing,
assuming for that purpose that the interest rate on the
Debt Securities is equal to the Coupon Rate;
(2) the value on the Remarketing Date of U.S. Treasury
securities that will pay, on or prior to the Purchase
Contract Settlement Date, an amount of cash equal to the
Stated Amount of (i) such Debt Securities that are
included in Corporate Units and (ii) the Separated Debt
Securities, in each case, which are participating in the
Remarketing; and
(3) the Remarketing Fee;
provided that, for purposes of each of clauses (1) through (3)
above, the Remarketing Value shall be calculated on the
assumptions that (i) the U.S. Treasury securities are highly
liquid securities and mature on or within 35 days prior to the
Purchase Contract Settlement Date, as determined in good faith by
the Remarketing Agent in a manner intended to minimize the
Remarketing Value, and (ii) the U.S. Treasury securities are
valued based on the ask-side price of the Treasury securities at a
time between 9:00 a.m. and 11:00 a.m. (New York City time),
selected by the Remarketing Agent, on the Remarketing Date as
determined on a third-day settlement basis by a reasonably and
customary means selected in good faith by the Remarketing Agent,
plus accrued interest to that date; and provided further that, the
Remarketing Agent shall, in its sole discretion, select the U.S.
Treasury securities in connection with a Remarketing in open
market transactions, at a U.S. Treasury auction and/or from its
own account.
"Reorganization Event" has the meaning set forth in Section
5.5(b).
"Reset Rate" has the meaning set forth in the Indenture
Officers' Certificate.
"Reset Transaction" means a merger, consolidation or statutory
share exchange to which the Person that is the issuer of the shares of Common
Stock for which the Purchase Contracts are then to be settled is a party, a sale
of all or substantially all assets of such Person, a recapitalization of such
Common Stock or a distribution described in Section 5.5(a)(4) by such Person and
after the effective date of such transaction the Purchase Contracts are then to
be settled for shares of common stock of a Person (i) which had a Dividend Yield
for the four fiscal quarters immediately preceding the public announcement
thereof which was, or (ii) that announces a dividend policy prior to the
effective date thereof which policy, if implemented, would result in a Dividend
Yield on such shares of Common Stock for the next four fiscal quarters which
would be, more than 250 basis points higher than the Dividend Yield on the
shares of Common Stock for which the Purchase Contracts are to be settled prior
to such effective date for the four fiscal quarters immediately preceding such
public announcement.
"Responsible Officer" means, when used with respect to the
Agent, any officer within the Corporate Trust Administration unit of the
Purchase Contract Agent (or any successor unit or department of the Agent)
located at the Corporate Trust Office of the Purchase Contract Agent who has
direct responsibility for the administration of this Agreement.
"Securities Intermediary" means _______________, as Securities
Intermediary under the Pledge Agreement until a successor Securities
Intermediary shall have become such pursuant to the applicable provisions of the
Pledge Agreement, and thereafter "Securities Intermediary" shall mean such
successor.
"Separated Debt Securities" has the meaning set forth in the
Pledge Agreement.
"Settlement Rate" has the meaning specified in Section 5.1.
"Stated Amount" means, with respect to any one Unit, $50 in
cash.
"Stated Maturity" means, with respect to the Debt Securities,
[DATE].
"Subsequent Remarketing" has the meaning specified in the
Remarketing Agreement.
"Subsequent Remarketing Date" has the meaning specified in the
Remarketing Agreement.
"Successful Final Remarketing" has the meaning specified in
the Pledge Agreement.
"Successful Initial Remarketing" has the meaning specified in
the Pledge Agreement.
"Successful Remarketing" has the meaning specified in the
Remarketing Agreement.
"Successful Subsequent Remarketing" has the meaning specified
in the Pledge Agreement.
"Termination Date" means the date, if any, on which a
Termination Event occurs.
"Termination Event" means the occurrence of any of the
following events:
(1) at any time on or prior to the Purchase Contract
Settlement Date, a judgment, decree or court order shall
have been entered granting relief with respect to the
Company under the Bankruptcy Code or any other similar
applicable Federal or state law, adjudicating the Company
to be insolvent, or approving as properly filed a
petition seeking reorganization or liquidation of the
Company, and, unless such judgment, decree or order shall
have been entered within 60 days prior to the Purchase
Contract Settlement Date, such decree or order shall have
continued undischarged and unstayed for a period of 60
days;
(2) a judgment, decree or court order 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
judgment, decree or order shall have been entered within
60 days prior to the Purchase Contract Settlement Date,
such judgment, decree or order shall have continued
undischarged and unstayed for a period of 60 days; or
(3) at any time on or prior to the Purchase Contract
Settlement Date, the Company shall file a petition for
relief under the Bankruptcy Code, or shall consent to the
filing of a bankruptcy proceeding against it, or shall
file a petition or answer or consent seeking
reorganization or liquidation of the Company under the
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 its
creditors, or shall admit in writing its inability to pay
its debts generally as they become due.
"Threshold Appreciation Price" has the meaning set forth in
Section 5.1.
"TIA" means the Trust Indenture Act of 1939, as amended from
time to time, or any successor legislation, and the rules and regulations
promulgated thereunder.
"Trading Day" has the meaning set forth in Section 5.1.
"Trading Price" of a security on any date of determination
means:
(1) the closing sale price (or, if no closing price is
reported, the last reported sale price) of a security
(regular way) on the New York Stock Exchange, Inc. on
such date;
(2) if such security is not listed for trading on the New
York Stock Exchange, Inc. on any such date, the closing
sale price as reported in the composite transactions for
the principal United States securities exchange on which
such security is so listed;
(3) if such security is not so listed on a United States
national or regional securities exchange, the closing
sale price as reported by the NASDAQ Stock Market;
(4) if such security is not so reported, the price quoted by
Interactive Data Corporation for such security or, if
Interactive Data Corporation is not quoting such price, a
similar quotation service selected by the Company;
(5) if such security is not so quoted, the average of the
mid-point of the last bid and ask prices for such
security from at least two dealers recognized as
market-makers for such security; or
(6) if such security is not so quoted, the average of the
last bid and ask prices for such security from a
Reference Dealer.
"Transfer" has the meaning specified in the Pledge Agreement.
"Treasury Units" means, following the substitution of Treasury
Securities for Debt Securities as collateral to secure a Holder's obligations
under a Purchase Contract, the collective rights and obligations of a Holder of
a Treasury Unit Certificate in respect of such Treasury Securities, subject to
the Pledge thereof, and the related Purchase Contract.
"Treasury Unit Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Treasury Units
specified on such certificate.
"Treasury Units Register" and "Treasury Units Registrar" have
the respective meanings set forth in Section 3.5.
"Treasury Portfolio" has the meaning specified in Section
5.3(b).
"Treasury Portfolio Interest" has the meaning specified in
Section 5.3(b).
"Treasury Portfolio Return" has the meaning specified in
Section 4.1.
"Treasury Security" means a zero-coupon U.S. Treasury Security
that has a principal amount at maturity of $1,000 and which matures on or prior
to the Business Day prior to the Purchase Contract Settlement Date.
"Trustee" means ___________________, a ________ corporation,
as trustee under the Indenture, or any successor thereto.
"Underwriters" means ____________________, as underwriters
under the Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement
dated [DATE] between the Company and the Underwriters relating to the offer,
issuance and sale of the Corporate Units, as the same may be amended, modified
or supplemented from time to time in accordance with the terms thereof.
"Units" means Corporate Units, Treasury Units, or the
collective reference to the Corporate Units and the Treasury Units, as the case
may be.
Section 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon
any application or request by the Company to the Purchase Contract Agent to take
any action in accordance with any provision of this Agreement, the Company shall
furnish to the Purchase Contract Agent an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and, if requested by the Purchase
Contract Agent, 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 (other than pursuant to
Section 10.5) 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 or she has made such examination or investigation as is necessary to
enable such individual 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.
Section 1.3 Form of Documents Delivered to Purchase Contract Agent.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be consolidated
and form one instrument.
Section 1.4 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 an 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 Purchase Contract Agent and, where it is hereby expressly required, to
the Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Agreement and (subject to Section 7.1) conclusive in favor of
the Purchase Contract 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 in any manner which the Purchase Contract
Agent deems sufficient.
(c) The ownership of Units shall be proved by the Corporate Units
Register or the Treasury Units Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate 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 Purchase
Contract Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Units 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 Units. If any record date is set pursuant to this paragraph, the
Holders of the Outstanding Corporate Units and the Outstanding Treasury Units,
as the case may be, on such record date, and no other Holders, shall be entitled
to take the relevant action with respect to the Corporate Units or the Treasury
Units, as the case may be, 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 Units on such record date. Nothing contained 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 be of no effect), and nothing
contained in this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite number of Outstanding Units 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 Purchase Contract Agent in writing and to each Holder of Units in
the manner set forth in Section 1.6.
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 Purchase Contract Agent in writing, and to each Holder of
Units in the manner set forth in Section 1.6, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the Company shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Section 1.5 Notices.
Any notice or communication is duly given if in writing and
delivered in Person or mailed by first-class mail (registered or certified,
return receipt requested), telecopier (with receipt confirmed) or overnight air
courier guaranteeing next day delivery, to the others' address; provided that
notice shall be deemed given to the Purchase Contract Agent and the Trustee, as
the case may be, only upon receipt thereof:
If to the Company:
Ohio Casualty Corporation
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Telecopier No.: __________
Attention: _______________
If to the Purchase Contract Agent:
[ ]
Telecopier No.: __________
Attention: _______________
If to the Collateral Agent and Securities Intermediary:
_________________
_________________
Telecopier No.: __________
Attention: _______________
If to the Trustee:
_________________
_________________
Telecopier No.: __________
Attention: _______________
Section 1.6 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 its address as it appears in the
applicable 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 Purchase Contract 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 Purchase
Contract Agent shall constitute a sufficient notification for every purpose
hereunder.
Section 1.7 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.8 Successors and Assigns.
All covenants and agreements in this Agreement by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.9 Severability.
If any provision in this Agreement is invalid or unenforceable
in any jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions of this Agreement shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision of this Agreement in any
jurisdiction shall not in any way affect the validity or enforceability of such
provision in any other jurisdiction.
Section 1.10 Benefits of Agreement.
Nothing contained in this Agreement or in the Units, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and, to the extent provided hereby, 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 Units evidenced by
their Certificates by their acceptance of delivery of such Certificates.
Section 1.11 Governing Law; Jurisdiction and Venue.
THIS AGREEMENT AND THE UNITS SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company, the Purchase Contract Agent and the Holders from
time to time of the Units, acting through the Purchase Contract Agent as their
attorney-in-fact, hereby submit to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
state court sitting in New York City for the purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions contemplated
hereby. The Company and the Holders from time to time of the Units, acting
through the Purchase Contract Agent as their attorney-in-fact, irrevocably
waive, to the fullest extent permitted by applicable law, any objection which
they may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
Section 1.12 Legal Holidays.
In any case where any Payment Date shall not be a Business
Day, then (notwithstanding any other provision of this Agreement, the Corporate
Unit Certificates or the Treasury Unit Certificates) payments by or owed from
the Company contemplated by this Agreement shall not be made on such date, but
shall be made on the next succeeding Business Day with the same force and effect
as if made on such Payment Date, 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, except that, if such next succeeding Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day with the same force and effect as if made on such Payment
Date.
In any case where any Purchase Contract Settlement Date shall
not be a Business Day, notwithstanding any other provision of this Agreement,
the Corporate Unit Certificates or the Treasury Unit Certificates, Purchase
Contracts shall not be settled on such date, but the Purchase Contracts shall be
settled on the immediately following Business Day with the same force and effect
as if performed on the Purchase Contract Settlement Date.
Section 1.13 Counterparts.
This Agreement may be executed in any number of counterparts
by the parties hereto on separate counterparts, each of which, when so executed
and delivered, shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument.
Section 1.14 Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable
times during normal business hours at the Corporate Trust Office for inspection
by any Holder or Beneficial Owner.
ARTICLE II
Certificate Forms
Section 2.1 Forms of Certificates Generally.
The Corporate Unit Certificates (including the form of
Purchase Contract forming part of the Corporate Units 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 Corporate Units are listed or any
depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Corporate Unit Certificates, as evidenced
by their execution of the Corporate Unit Certificates.
The definitive Corporate Unit 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
Corporate Units evidenced by such Corporate Unit Certificates, consistent with
the provisions of this Agreement, as evidenced by their execution thereof.
The Treasury Unit Certificates (including the form of Purchase
Contracts forming part of the Treasury Units evidenced thereby) shall be in
substantially the form set forth in Exhibit B 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 Treasury Units may be listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Treasury Unit Certificates, as evidenced by their
execution of the Treasury Unit Certificates.
The definitive Treasury Unit 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
Treasury Units evidenced by such Treasury Unit Certificates, consistent with the
provisions of this Agreement, as evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of
the Holders and delivered hereunder shall bear a legend in substantially the
following form:
"This Certificate is a Global Certificate within the
meaning of the Purchase Contract Agreement hereinafter
referred to and is registered in the name of The Depository
Trust Company, a New York corporation (the "Depositary"), or a
nominee of the Depositary. This Certificate is exchangeable
for certificates registered in the name of a person other than
the Depositary or its nominee only in the limited
circumstances described in the Purchase Contract Agreement and
no transfer of this Certificate (other than a transfer of this
Certificate as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except
in limited circumstances.
Unless this Certificate is presented by an authorized
representative of the Depositary to Ohio Casualty Corporation
or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name
of Cede & Co. or such other name as is requested by an
authorized representative of the Depositary (and any payment
hereon is made to Cede & Co. or to such other entity as is
requested by an authorized representative of the Depositary),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein."
Section 2.2 Form of Purchase Contract Agent's Certificate of
Authentication.
The form of the Purchase Contract Agent's certificate of
authentication of the Corporate Units shall be in substantially the form set
forth on the form of the Corporate Unit Certificates.
The form of the Purchase Contract Agent's certificate of
authentication of the Treasury Units shall be in substantially the form set
forth on the form of the Treasury Unit Certificates.
ARTICLE III
The Units
Section 3.1 Amount; Form and Denominations.
The aggregate number of Units evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to __________ (or up to __________ if the Underwriters' over-allotment
option pursuant to the Underwriting Agreement is exercised in full), except for
Certificates authenticated, executed and delivered upon registration of transfer
of, in exchange for, or in lieu of, other Certificates pursuant to Sections 3.4,
3.5, 3.10, 3.13, 3.14, 5.9 or 5.10.
The Certificates shall be issuable only in registered form and
only in denominations of a single Corporate Unit or Treasury Unit and any
integral multiple thereof.
Section 3.2 Rights and Obligations Evidenced by the Certificates.
Each Corporate Unit Certificate shall evidence the number of
Corporate Units specified therein, with each such Corporate Unit representing
(1) the ownership by the Holder thereof of a beneficial interest in one Debt
Security or, if substituted therefor, the Pledged Treasury Portfolio Interest,
in either case, subject to the Pledge of such Debt Security or such Pledged
Treasury Portfolio Interest, as the case may be, by such Holder pursuant to the
Pledge Agreement, and (2) the rights and obligations of the Holder thereof and
the Company under one Purchase Contract. The Purchase Contract Agent as
attorney-in-fact for, and on behalf of, the Holder of each Corporate Unit shall
pledge, pursuant to the Pledge Agreement, the Debt Security or, if substituted
therefor, the Treasury Portfolio Interest, forming a part of such Corporate
Unit, to the Collateral Agent and grant to the Collateral Agent a security
interest in the right, title and interest of such Holder in such Debt Security
or such Treasury Portfolio Interest, as the case may be, for the benefit of the
Company, to secure the obligation of the Holder under each Purchase Contract to
purchase shares of Common Stock pursuant to the Purchase Contract.
Upon the formation of Treasury Units pursuant to Section 3.13,
each Treasury Unit Certificate shall evidence the number of Treasury Units
specified therein, with each such Treasury Unit representing (1) the ownership
by the Holder thereof of a 1/20 undivided beneficial interest in a Treasury
Security with a principal amount equal to $1,000, subject to the Pledge of such
Treasury Security by such Holder pursuant to the Pledge Agreement, and (2) the
rights and obligations of the Holder thereof and the Company under one Purchase
Contract. The Purchase Contract Agent as attorney-in-fact for, and on behalf of,
the Holder of each Treasury Unit shall pledge, pursuant to the Pledge Agreement,
the Treasury Security or Treasury Securities forming a part of such Treasury
Unit, to the Collateral Agent and grant to the Collateral Agent a security
interest in the right, title and interest of such Holder in such Treasury
Security or Treasury Securities for the benefit of the Company, to secure the
obligation of the Holder under each Purchase Contract to purchase shares of
Common Stock pursuant to this Agreement and the related Purchase Contract.
Prior to the purchase of shares of Common Stock under each
Purchase Contract, such Purchase Contract shall not entitle the Holder of a
Corporate Unit Certificate or a Treasury Unit Certificate 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 a shareholder in respect of the meetings of shareholders or for the
election of directors of the Company or for any other matter, or any other
rights whatsoever as a shareholder of the Company.
Section 3.3 Execution, Authentication, Delivery and Dating.
Subject to the provisions of Sections 3.1, 3.13 and 3.14
hereof, upon the execution and delivery of this Agreement, and at any time and
from time to time thereafter, the Company may deliver Certificates executed by
the Company to the Purchase Contract Agent for authentication, execution on
behalf of the Holders and delivery, together with its Issuer Order for
authentication of such Certificates, and the Purchase Contract Agent in
accordance with such Issuer Order shall authenticate, execute on behalf of the
Holders and deliver such Certificates.
The Certificates shall be executed on behalf of the Company by
its Chairman of the Board, President, one of its Vice Presidents, Corporate
Secretary or Treasurer. The signature of any of these officers on the
Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of an
individual who was at any time the proper officer of the Company shall bind the
Company, notwithstanding that such individual has ceased to hold such office
prior to the authentication and delivery of such Certificates or did not hold
such office at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid
until such Certificate has been executed on behalf of the Holder by the manual
signature of an authorized officer of the Purchase Contract Agent, as such
Holder's attorney-in-fact. Such signature by an authorized officer of the
Purchase Contract Agent shall be conclusive evidence that the Holder of such
Certificate has entered into the Purchase Contract or Purchase Contracts
evidenced by such Certificate.
Each Certificate shall be dated the date of its
authentication.
No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by an authorized officer of the Purchase Contract Agent by
manual signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
Section 3.4 Temporary Certificates.
Pending the preparation of definitive Certificates, the
Company shall execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall authenticate, execute on behalf of the Holders,
and deliver, in lieu of such definitive Certificates, temporary Certificates
which are in substantially the form set forth in Exhibit A or Exhibit B hereto,
as the case may be, 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 Corporate Units or Treasury Units are or may be listed, or as may,
consistently herewith, be determined by the officers of the Company executing
such Certificates, as evidenced by their execution of the Certificates.
If temporary Certificates are issued, the Company will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
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 Certificates, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent shall authenticate, execute on
behalf of the Holder, and deliver in exchange therefor, one or more definitive
Certificates of like tenor and denominations and evidencing a like aggregate
number of Corporate Units or Treasury Units, as the case may be, as the
temporary Certificate or Certificates so surrendered. Until so exchanged, the
temporary Certificates shall in all respects evidence the same benefits and the
same obligations with respect to the Corporate Units or Treasury Units, as the
case may be, evidenced thereby as definitive Certificates.
Section 3.5 Registration; Registration of Transfer and Exchange.
The Purchase Contract Agent shall keep at the Corporate Trust
Office a register (the "Corporate Units Register") in which, subject to such
reasonable regulations as it may prescribe, the Purchase Contract Agent shall
provide for the registration of Corporate Unit Certificates and of transfers of
Corporate Unit Certificates (the Purchase Contract Agent, in such capacity, the
"Corporate Units Registrar") and a register (the "Treasury Units Register") in
which, subject to such reasonable regulations as it may prescribe, the Purchase
Contract Agent shall provide for the registration of the Treasury Unit
Certificates and transfers of Treasury Unit Certificates (the Purchase Contract
Agent, in such capacity, the "Treasury Units Registrar").
Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office, the Company shall execute and deliver to the
Purchase Contract Agent, and the Purchase Contract 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
Certificates of any authorized denominations, like tenor, and evidencing a like
aggregate number of Corporate Units or Treasury Units, as the case may be.
At the option of the Holder, Certificates may be exchanged for
other Certificates, of any authorized denominations and evidencing a like number
of Corporate Units or Treasury Units, as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and
deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall
authenticate, execute on behalf of the Holder, and deliver the Certificates
which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same aggregate
number of Corporate Units or Treasury Units, as the case may be, and be entitled
to the same benefits and subject to the same obligations, under this Agreement
as the Corporate Units or Treasury Units, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Purchase Contract Agent)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Purchase Contract Agent duly executed, by
the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of a Certificate, but the Company and the Purchase Contract
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 Certificates, other than any exchanges
pursuant to Sections 3.4, 3.6 and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall not be obligated to authenticate, execute on
behalf of the Holder and deliver any Certificate in exchange for any other
Certificate presented or surrendered for registration of transfer or for
exchange on or after the Business Day immediately preceding the earlier of the
Purchase Contract Settlement Date or the Termination Date. In lieu of delivery
of a new Certificate, upon satisfaction of the applicable conditions specified
above in this Section and receipt of appropriate registration or transfer
instructions from such Holder, the Purchase Contract Agent shall:
(1) if the Purchase Contract Settlement Date has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the Units evidenced by such other
Certificate; or
(2) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Debt Securities, the
Treasury Portfolio or the Treasury Securities, as the case may be,
evidenced thereby,
in each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
Section 3.6 Book-Entry Interests.
The Certificates, on original issuance, will be issued in the
form of one or more fully registered Global Certificates, to be delivered to the
Depositary or its custodian by, or on behalf of, the Company. Such Global
Certificate shall initially be registered on the books and records of the
Company in the name of Cede & Co., the nominee of the Depositary, and no
Beneficial Owner will receive a definitive Certificate representing such
Beneficial Owner's interest in such Global Certificate, except as provided in
Section 3.9. The Purchase Contract Agent shall enter into an agreement with the
Depositary if so requested by the Company. Unless and until definitive, fully
registered Certificates have been issued to Beneficial Owners pursuant to
Section 3.9:
(1) the provisions of this Section 3.6 shall be in full force
and effect;
(2) the Company shall be entitled to deal with the Depositary
for all purposes of this Agreement (including making Purchase Contract
Adjustment Payments and receiving approvals, votes or consents
hereunder) as the Holder of the Units and the sole holder of the Global
Certificates and shall have no obligation to the Beneficial Owners;
(3) to the extent that the provisions of this Section 3.6
conflict with any other provisions of this Agreement, the provisions of
this Section 3.6 shall control; and
(4) the rights of the Beneficial Owners shall be exercised
only through the Depositary and shall be limited to those established
by law and agreements between such Beneficial Owners and the Depositary
and/or the Depositary Participants.
Section 3.7 Notices to Holders.
Whenever a notice or other communication to the Holders is
required to be given under this Agreement, the Company or the Company's agent
shall give such notices and communications to the Holders and, with respect to
any Units registered in the name of a Depositary or the nominee of a Depositary,
the Company or the Company's agent shall, except as set forth herein, have no
obligations to the Beneficial Owners.
Section 3.8 Appointment of Successor Depositary.
If any Depositary elects to discontinue its services as
securities depositary with respect to the Units or ceases to be eligible as a
"depositary" under the Exchange Act, the Company may, in its sole discretion,
appoint a successor Depositary with respect to the Units.
Section 3.9 Definitive Certificates.
If (a) the Depositary is at any time unwilling, unable or
ineligible to continue as a "clearing agency" registered under the Exchange Act
and a successor Depositary is not appointed by the Company pursuant to Section
3.8 within 90 days of the date the Company and the Purchase Contract Agent is so
informed in writing thereof, (b) the Company executes and delivers to the
Purchase Contract Agent a Company Order (as defined in the Indenture) to the
effect that the Global Certificates shall be exchangeable for Definitive
Certificates or (c) a default by the Company in respect of its obligations under
one or more Purchase Contracts has occurred and is continuing, then upon
surrender of the Global Certificates representing the Units by the Depositary,
accompanied by registration instructions, the Company shall cause definitive
Certificates to be delivered to Beneficial Owners in accordance with the
instructions of the Depositary. The Company and the Purchase Contract Agent
shall not be liable for any delay in delivery of such instructions and may
conclusively rely on and shall be protected in relying on, such instructions.
Section 3.10 Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Purchase
Contract Agent, the Company shall execute and deliver to the Purchase Contract
Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of
the Holder, and deliver in exchange therefor, a new Certificate, evidencing the
same number of Corporate Units or Treasury Units, as the case may be, and
bearing a Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Purchase
Contract Agent (i) evidence to their satisfaction of the destruction, loss or
theft of any Certificate, and (ii) such security or indemnity as may be required
by them to hold each of them and any agent of any of them harmless, then, in the
absence of notice to the Company or to a Responsible Officer of the Purchase
Contract Agent that such Certificate has been acquired by a bona fide purchaser,
the Company shall execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or stolen
Certificate, a new Certificate, evidencing the same number of Corporate Units or
Treasury Units, as the case may be, and bearing a Certificate number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall not be obligated to authenticate, execute on
behalf of the Holder, and deliver to the Holder, a Certificate on or after the
Business Day immediately preceding the earlier of the Purchase Contract
Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Purchase Contract Agent shall:
(1) if the Purchase Contract Settlement Date has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the Units evidenced by such Certificate; or
(2) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Debt Securities, the
Treasury Portfolio or the Treasury Securities, as the case may be,
evidenced thereby,
in each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
Upon the issuance of any new Certificate under this Section,
the Company and the Purchase Contract 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 Purchase Contract Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu
of any destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder in respect of
the Units evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Units evidenced thereby) 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
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 payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.11 Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of
transfer, the Company and the Purchase Contract Agent, and any agent of the
Company or the Purchase Contract Agent, may treat the Person in whose name such
Certificate is registered as the owner of the Corporate Units or Treasury Units
evidenced thereby, for the purpose of receiving interest payments on the Debt
Securities, receiving Purchase Contract Adjustment Payments, performance of the
Purchase Contracts and for all other purposes whatsoever, whether or not any
interest payments on the Debt Securities or the Purchase Contract Adjustment
Payments payable in respect of the Purchase Contracts constituting a part of the
Corporate Units or Treasury Units evidenced thereby shall be overdue and
notwithstanding any notice to the contrary, and neither the Company nor the
Purchase Contract Agent, nor any agent of the Company or the Purchase Contract
Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Certificate, nothing contained herein shall prevent the Company, the Purchase
Contract Agent or any agent of the Company or the Purchase Contract 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 Certificate or impair, as between such Depositary and owners of
beneficial interests in such Global Certificate, the operation of customary
practices governing the exercise of rights of such Depositary (or its nominee)
as Holder of such Global Certificate.
Section 3.12 Cancellation.
All Certificates surrendered for delivery of shares of Common
Stock on or after the Purchase Contract Settlement Date, upon the transfer of
Debt Securities, the Treasury Portfolio or Treasury Securities, as the case may
be, after the occurrence of a Termination Event or pursuant to an Early
Settlement, or a Collateral Substitution or the recreation of Corporate Units or
upon the registration of a transfer or exchange of a Unit, shall, if surrendered
to any Person other than the Purchase Contract Agent, be delivered to the
Purchase Contract Agent and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Purchase Contract
Agent for cancellation any Certificates previously authenticated, executed and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Certificates so delivered shall, upon Issuer Order, be
promptly cancelled by the Purchase Contract Agent. No Certificates shall be
authenticated, executed on behalf of the Holder and delivered in lieu of or in
exchange for any Certificates cancelled as provided in this Section, except as
expressly permitted by this Agreement. All cancelled Certificates held by the
Purchase Contract Agent shall be disposed of by the Purchase Contract Agent in
accordance with its customary procedures.
If the Company or any Affiliate of the Company shall acquire
any Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Purchase
Contract Agent cancelled or for cancellation.
Section 3.13 Creation of Treasury Units by Substitution of Treasury
Securities.
A Holder may separate the Debt Securities from the related
Purchase Contracts in respect of such Holder's Corporate Units by substituting
for such Debt Securities Treasury Securities or security entitlements thereto,
pursuant to the Pledge Agreement, in an aggregate principal amount equal to the
aggregate principal amount of such Debt Securities, at any time from and after
the date of this Agreement until 5:00 p.m. (New York City time) on the Election
Date by:
(1) providing notice to the Purchase Contract Agent,
substantially in the form of Exhibit C hereto, of such Holder's
intention to create Treasury Units;
(2) for each group of 20 Corporate Units from which such
Holder wishes to create Treasury Units, transferring a Treasury
Security to the Securities Intermediary which shall then (y) deposit
the Treasury Security with the Collateral Agent in the Collateral
Account under the Pledge Agreement and instruct the Collateral Agent to
hold such Treasury Security as Collateral under the Pledge Agreement
and (z) instruct the Collateral Agent to release to the Purchase
Contract Agent, on behalf of such Holder, $1,000 principal amount of
Debt Securities formerly subject to the Pledge;
(3) transferring the related Corporate Units to the Purchase
Contract Agent accompanied by a notice to the Purchase Contract Agent,
substantially in the form of Exhibit D hereto, stating that the Holder
has transferred the relevant amount of Treasury Securities to the
Securities Intermediary and requesting that the Purchase Contract Agent
instruct the Collateral Agent to release the Debt Securities relating
to such Corporate Units, whereupon the Purchase Contract Agent shall
promptly give such instruction to the Collateral Agent, substantially
in the form of Exhibit A to the Pledge Agreement; and
(4) paying to the Collateral Agent any fees or expenses
incurred in connection with the Collateral Substitution;
provided that, Holders may make Collateral Substitutions only in integral
multiples of 20 Corporate Units. Under no circumstances may a Holder of
Corporate Units create Treasury Units after the Election Date.
The Holders' right to create Treasury Units as set forth in
this Section and the limit of the preceding sentence shall in no way limit the
ability of the Purchase Contract Agent, the Collateral Agent, the Securities
Intermediary or the Remarketing Agent to substitute the Treasury Portfolio for
the Debt Securities then comprising a part of the Corporate Units upon a
Successful Remarketing (other than the Debt Securities of Holders of Corporate
Units that have elected not to participate in the Remarketing).
Upon receipt of the Treasury Securities described in clause
(2) above and the instruction described in clause (1) above, in accordance with
the terms of the Pledge Agreement, the Collateral Agent shall, under the Pledge
Agreement, cause the Securities Intermediary to effect the release of such Debt
Securities from the Pledge to the Purchase Contract Agent, free and clear of the
Company's security interest therein, and the transfer of such Debt Securities to
the Purchase Contract Agent on behalf of the Holder thereof. Upon receipt
thereof, the Purchase Contract Agent shall promptly:
(i) cancel the related Corporate Units;
(ii) transfer the applicable aggregate principal
amount of Debt Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder
and deliver a Treasury Unit Certificate executed by the
Company in accordance with Section 3.3 evidencing the same
number of Purchase Contracts as were evidenced by the
cancelled Corporate Units.
Holders who elect to separate the Debt Securities from the
related Purchase Contracts and to substitute Treasury Securities for such Debt
Securities shall be responsible for any fees or expenses payable to the
Collateral Agent for its services as Collateral Agent in respect of the
substitution, and the Company shall not be responsible for any such fees or
expenses.
In the event a Holder making a Collateral Substitution
pursuant to this Section 3.13 fails to effect a book-entry transfer of the
Corporate Units or fails to deliver Corporate Unit Certificates to the Purchase
Contract Agent after depositing Treasury Securities with the Collateral Agent,
then the Debt Securities or Treasury Portfolio Interest, as the case may be,
constituting a part of such Corporate Units, and any interest payments on such
Debt Securities or the Treasury Portfolio Interest, as the case may be, shall be
held in the name of the Purchase Contract Agent or its nominee in trust for the
benefit of such Holder, until such Corporate Units are so transferred or the
Corporate Unit Certificates are so delivered, as the case may be, or, with
respect to the Corporate Unit Certificates, such Holder provides evidence
satisfactory to the Company and the Purchase Contract Agent that such Corporate
Unit Certificates have been destroyed, lost or stolen, together with any
indemnity that may be required by the Purchase Contract Agent and the Company.
Except as described in this Sections 3.13 and 5.3, for so long
as the Purchase Contract relating to a Corporate Unit remains in effect, such
Corporate Unit shall not be separable into its constituent parts, and the rights
and obligations of the Holder in respect of the Debt Security or the Treasury
Portfolio Interest, as the case may be, and the Purchase Contract comprising
such Corporate Unit may be acquired, and may be transferred and exchanged, only
as a Corporate Unit.
Section 3.14 Recreation of Corporate Units.
A Holder of Treasury Units may recreate Corporate Units at any
time until 5:00 p.m. (New York City time) on the Election Date by:
(1) providing notice to the Purchase Contract Agent,
substantially in the form of Exhibit C hereto, of such Holder's
intention to create Corporate Units;
(2) for each Treasury Unit such Holder wishes to substitute,
transferring 20 Debt Securities to the Securities Intermediary which
shall then (y) deposit such Debt Securities in the Collateral Account
under the Pledge Agreement and instruct the Collateral Agent to hold
such Debt Securities as Collateral and (z) instruct the Collateral
Agent to release to such Holder the Treasury Security formerly subject
to the Pledge;
(3) transferring the related Treasury Units to the Purchase
Contract Agent accompanied by a notice to the Purchase Contract Agent,
substantially in the form of Exhibit D hereto, (i) stating that the
Holder has transferred the relevant amount of Debt Securities to the
Securities Intermediary and (ii) requesting that the Purchase Contract
Agent instruct the Collateral Agent to release the Treasury Securities
relating to such Treasury Units, whereupon the Purchase Contract Agent
shall promptly give such instruction to the Collateral Agent,
substantially in the form of Exhibit C to the Pledge Agreement; and
(4) paying to the Collateral Agent any fees or expenses
incurred in connection with the recreation of Corporate Units;
provided that, Holders of Treasury Units may recreate Corporate Units in
integral multiples of 20 Treasury Units for 20 Corporate Units. Under no
circumstance may a Holder of Treasury Units recreate Corporate Units after the
Election Date.
Upon receipt of the Debt Securities described in clause (1)
above and the instruction described in clause (2) above, in accordance with the
terms of the Pledge Agreement, the Collateral Agent shall cause the Securities
Intermediary to effect the release of such Treasury Securities from the Pledge,
free and clear of the Company's security interest therein, and the transfer of
such Treasury Securities to the Holder thereof. Upon receipt thereof, the
Purchase Contract Agent shall promptly:
(i) cancel the related Treasury Units; and
(ii) authenticate, execute on behalf of such Holder
and deliver a Corporate Unit Certificate executed by the
Company in accordance with Section 3.3 evidencing the same
number of Purchase Contracts as were evidenced by the
cancelled Treasury Units.
Holders who elect to recreate Corporate Units shall be
responsible for any fees or expenses payable to the Collateral Agent for its
services as Collateral Agent in respect of the substitution, and the Company
shall not be responsible for any such fees or expenses.
Except as provided in this Section 3.14, for so long as the
Purchase Contract relating to a Treasury Unit remains in effect, such Treasury
Unit shall not be separable into its constituent parts and the rights and
obligations of the Holder of such Treasury Unit in respect of the 1/20 of a
Treasury Security and the Purchase Contract comprising such Treasury Unit may be
acquired, and may be transferred and exchanged, only as a Treasury Unit.
Section 3.15 Transfer of Collateral upon Occurrence of Termination Event.
Upon the occurrence of a Termination Event and the transfer to
the Purchase Contract Agent of Debt Securities, Treasury Portfolio or Treasury
Securities, as the case may be, relating to the Corporate Units and the Treasury
Units, as the case may be, pursuant to the terms of the Pledge Agreement, the
Purchase Contract Agent shall request transfer instructions with respect to such
Debt Securities, Treasury Portfolio Interest or Treasury Securities, as the case
may be, from each Holder by written request, substantially in the form of
Exhibit E hereto, mailed to such Holder at its address as it appears in the
Corporate Units Register or the Treasury Units Register, as the case may be.
Upon book-entry transfer of the Corporate Units or Treasury
Units or delivery of a Corporate Unit Certificate or Treasury Unit Certificate
to the Purchase Contract Agent with such transfer instructions, the Purchase
Contract Agent shall transfer such Debt Securities, Treasury Portfolio Interest
or Treasury Securities, as the case may be, relating to such Corporate Units or
Treasury Units, as the case may be, to such Holder by book-entry transfer, or
other appropriate procedures, in accordance with such instructions. In the event
a Holder of Corporate Units or Treasury Units fails to effect such transfer or
delivery, such Debt Securities, Treasury Portfolio Interest or Treasury
Securities, as the case may be, relating to such Corporate Units or Treasury
Units, as the case may be, and any interest thereon, shall be held in the name
of the Purchase Contract Agent or its nominee in trust for the benefit of such
Holder, until the earlier of:
(1) such Corporate Units or Treasury Units are
transferred or the Corporate Unit Certificate or Treasury Unit
Certificate is surrendered or such Holder provides
satisfactory evidence that such Corporate Unit Certificate or
Treasury Unit Certificate has been destroyed, lost or stolen,
together with any indemnity that may be required by the
Purchase Contract Agent and the Company; and
(2) the expiration of the time period specified in
the abandoned property laws of the relevant State.
Section 3.16 No Consent to Assumption.
Each Holder of a Unit, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365 of
the Bankruptcy Code or otherwise, of the Purchase Contract by the Company or its
trustee, receiver, liquidator or a person or entity performing similar functions
in the event that the Company becomes the debtor under the Bankruptcy Code or
subject to other similar state or federal law providing for reorganization or
liquidation.
ARTICLE IV
The Debt Securities
Section 4.1 Interest Payments; Rights to Interest Preserved.
Each Corporate Unit issued hereunder shall consist of the
beneficial ownership by the Holder of one Debt Security issued pursuant to the
Indenture or, if the Corporate Unit shall have been remarketed by the
Remarketing Agent pursuant to the Remarketing Agreement, the Treasury Portfolio
Interest, in each case, subject to the Pledge thereof by such Holder under the
Pledge Agreement.
An interest payment on any Debt Security which is paid on any
Payment Date or the portion of the proceeds of a Treasury Portfolio Interest
equal to the interest payable on a Debt Security on the Purchase Contract
Settlement Date (such portion the "Treasury Portfolio Return"), as the case may
be, subject to receipt thereof by the Purchase Contract Agent from the
Collateral Agent as provided by the terms of the Pledge Agreement, shall
promptly be paid to the Person in whose name the Corporate Unit Certificate (or
one or more Predecessor Corporate Unit Certificates) of which such Debt Security
or the Treasury Portfolio Interest, as the case may be, is a part is registered
at the close of business on the Record Date for such Payment Date or Purchase
Contract Settlement Date, as applicable.
Each Corporate Unit Certificate evidencing, in part, the Debt
Security or the Treasury Portfolio Interest delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any other Corporate
Unit Certificate shall carry the right to accrued and unpaid interest, and the
right to accrue interest (and accreted and accreting principal in the case of
non-interest bearing components of the Treasury Portfolio Interest), which
rights were carried by the Debt Security or the Treasury Portfolio Interest, as
the case may be, relating to such other Corporate Unit Certificate.
In the case of any Corporate Units with respect to which (1)
Cash Settlement of the related Purchase Contract is effected on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, (2)
Early Settlement of the related Purchase Contract is effected on an Early
Settlement Date, (3) Merger Early Settlement of the related Purchase Contract is
effected on a Merger Early Settlement Date or (4) a Collateral Substitution is
effected, in each case, on a date that is after any Record Date and on or prior
to the next succeeding Payment Date, the interest payment on the Debt Security
or the Treasury Portfolio Return, as the case may be, relating to such Corporate
Units otherwise payable on such Payment Date shall be payable on such Payment
Date notwithstanding such Cash Settlement, Early Settlement, Merger Early
Settlement or Collateral Substitution, as the case may be, and such payment
shall, subject to receipt thereof by the Purchase Contract Agent, be payable to
the Person in whose name the Corporate Unit Certificate (or one or more
Predecessor Corporate Unit Certificates) was registered at the close of business
on the corresponding Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Corporate Units with respect
to which Cash Settlement, Early Settlement or Merger Early Settlement of the
related Purchase Contract is effected on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date, on an Early Settlement Date or
on a Merger Early Settlement Date, respectively, or with respect to which a
Collateral Substitution has been effected, interest payments on the related Debt
Securities or the Treasury Portfolio Return, as the case may be, that would
otherwise be payable after the fifth Business Day preceding the Purchase
Contract Settlement Date, after the Early Settlement Date, after the Merger
Early Settlement Date, or after the Collateral Substitution, respectively, shall
not be payable hereunder to the Holder of such Corporate Units; provided,
however, that to the extent that such Holder continues to hold the Separated
Debt Security that formerly comprised a part of such Holder's Corporate Units,
such Holder shall be entitled to receive the interest payments on such Separated
Debt Security, as provided in the Indenture.
Section 4.2 Interest Rate Reset.
The applicable interest rate borne by the Debt Securities,
whether or not part of Corporate Units, shall be reset to the Reset Rate,
pursuant to the Indenture, and will be effective with respect to all Debt
Securities, whether or not then constituting a component of Corporate Units, as
of the Remarketing Settlement Date, in the case of a Successful Remarketing, or,
as of the Purchase Contract Settlement Date, in the event of a Failed
Remarketing or in the event there is no Remarketing pursuant to clause (c) of
the definition of Reset Rate in the Indenture Officers' Certificate.
Section 4.3 Notice and Voting.
The Purchase Contract Agent is entitled to exercise the voting
and any other consensual rights pertaining to the Pledged Debt Securities, but
only to the extent instructed in writing by the Holders as described below. Upon
receipt of notice of any meeting at which holders of Debt Securities are
entitled to vote or upon any solicitation of consents, waivers or proxies of
holders of Debt Securities, the Purchase Contract Agent shall, as soon as
practicable thereafter, mail to the Holders of Corporate Units a notice:
(1) containing such information as is contained in the notice
or solicitation;
(2) stating that each Holder on the record date set by the
Purchase Contract Agent therefor (which, to the extent possible, shall
be the same date as the record date for determining the holders of Debt
Securities entitled to vote) shall be entitled to instruct the Purchase
Contract Agent as to the exercise of the voting rights pertaining to
such Debt Securities relating to their Corporate Units; and
(3) stating the manner in which such instructions may be
given.
Upon the written request of the Holders of Corporate Units on
such record date received by the Purchase Contract Agent at least six calendar
days prior to such meeting or by the expiration date of any such solicitation,
the Purchase Contract Agent shall endeavor insofar as practicable to vote or
cause to be voted, in accordance with the instructions set forth in such
requests, the maximum principal amount of Debt Securities as to which any
particular voting instructions are received. In the absence of specific
instructions from the Holder of Corporate Units, the Purchase Contract Agent
shall abstain from voting the Debt Securities relating such Corporate Units. The
Company hereby agrees, if applicable, to solicit Holders of Corporate Units to
timely instruct the Purchase Contract Agent in order to enable the Purchase
Contract Agent to vote such Debt Securities.
ARTICLE V
The Purchase Contracts; The Remarketing
Section 5.1 Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless a Termination Event has
occurred as set forth in Section 5.7, an Early Settlement has occurred in
accordance with Section 5.9 or a Merger Early Settlement has occurred in
accordance with Section 5.10, obligate the Holder of the related Units to
purchase, and the Company to sell, on the Purchase Contract Settlement Date at a
price equal to the Stated Amount (the "Purchase Price"), a number of newly
issued shares of Common Stock equal to the Settlement Rate then in effect. The
"Settlement Rate" is equal to:
(1) if the Applicable Closing Price per share is equal to or
greater than $____ (the "Threshold Appreciation Price"), _____ shares
of Common Stock per Purchase Contract;
(2) if the Applicable Closing Price per share is less than the
Threshold Appreciation Price, but greater than $____ (the "Reference
Price"), the number of shares of Common Stock determined by dividing
the Stated Amount by the Applicable Closing Price; and
(3) if the Applicable Closing Price per share is less than or
equal to the Reference Price, _____ shares of Common Stock per Purchase
Contract,
in each case subject to adjustment as provided in Section 5.5 (and in each case
rounded upward or downward to the nearest 1/10,000th of a share).
Promptly after the calculation of the Settlement Rate and the
Applicable Closing Price, the Company shall give the Purchase Contract Agent
notice thereof. All calculations and determinations of the Settlement Rate and
the Applicable Closing Price shall be made by the Company or its agent based on
their good faith calculations, and the Purchase Contract Agent shall have no
responsibility with respect thereto.
As provided in Section 5.12, no fractional shares of Common
Stock will be issued upon settlement of Purchase Contracts.
The "Applicable Closing Price" means the average of the
Closing Prices per share of Common Stock on each of the 20 consecutive Trading
Days ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date, or in the case of the exercise of a Merger Early Settlement
right, the Cash Merger Date.
The "Closing Price" per share of the Common Stock on any date
of determination means:
(1) the closing sale price (or, if no closing price is
reported, the last reported sale price) per share of the Common Stock
on the New York Stock Exchange, Inc. on such date;
(2) if the Common Stock is not listed for trading on the New
York Stock Exchange, Inc. on any such date, the closing sale price per
share as reported in the composite transactions for the principal
United States securities exchange on which the Common Stock is so
listed;
(3) if the Common Stock is not so listed on a United States
national or regional securities exchange, the closing sale price per
share as reported by The Nasdaq Stock Market;
(4) if the Common Stock is not so reported, the last quoted
bid price per share for the Common Stock in the over-the-counter market
as reported by the National Quotation Bureau or similar organization;
or
(5) if such bid price is not available, the average of the
mid-point of the last bid and ask prices per share of the Common Stock
on such date from at least three nationally recognized independent
investment banking firms retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) 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 (2) has
traded at least once on the national or regional securities exchange or
association or the over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a Corporate Unit or a Treasury Unit, by its
acceptance thereof:
(1) irrevocably authorizes the Purchase Contract Agent to
enter into and perform the related Purchase Contract on its behalf as
its attorney-in-fact (including the execution of Certificates on behalf
of such Holder as such Holder's attorney-in-fact);
(2) agrees to be bound by the terms and provisions thereof;
(3) covenants and agrees to perform its obligations under such
Purchase Contracts;
(4) consents to the provisions hereof;
(5) irrevocably authorizes the Purchase Contract Agent to
enter into and perform this Agreement and the Pledge Agreement on its
behalf as its attorney-in-fact; and
(6) consents to and agrees to be bound by the Pledge of the
Debt Securities or the Treasury Securities pursuant to the Pledge
Agreement; and
(7) agrees to treat itself as the owner of the related Debt
Securities, Treasury Portfolio Interest or Treasury securities, as the
case may be, in each case for U.S. Federal, state and local income and
franchise tax purposes;
provided that, upon a Termination Event, the rights of the Holder of such Unit
under the Purchase Contract may be enforced without regard to any other rights
or obligations. Each Holder of a Corporate Unit or a Treasury Unit, by its
acceptance thereof, further covenants and agrees, that to the extent and in the
manner provided in Section 5.3 and the Pledge Agreement, but subject to the
terms thereof, proceeds from the Remarketing of the Debt Securities (less the
Remarketing Fee payable to the Remarketing Agent pursuant to the Remarketing
Agreement), the Treasury Portfolio Interest or the Treasury Securities at
maturity, as the case may be, to be paid upon settlement of such Holder's
obligations to purchase Common Stock under the Purchase Contract, shall be paid
on the Purchase Contract Settlement Date 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 Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of this Agreement, the Purchase Contracts relating to
such Certificate and the Pledge Agreement and the transferor shall be released
from the obligations under this Agreement, the Purchase Contracts relating to
the Certificates so transferred and the Pledge Agreement. The Company covenants
and agrees, and each Holder of a Certificate, by its acceptance thereof,
likewise covenants and agrees, to be bound by the provisions of this paragraph.
Section 5.2 Purchase Contract Adjustment Payments.
The Company shall pay, on each Payment Date, the Purchase
Contract Adjustment Payments payable in respect of each Purchase Contract to the
Person in whose name a Certificate (or one or more Predecessor Certificates) is
registered at the close of business on the Record Date next preceding such
Payment Date in such coin or currency of the United States as at the time of
payment shall be legal tender for the payment of public and private debts. The
Purchase Contract Adjustment Payments will be payable at the office of the
Purchase Contract Agent in The City of New York maintained for that purpose or,
at the option of the Company, by wire transfer or by check mailed to the address
of the Person entitled thereto at such Person's address as it appears on the
Corporate Units Register or Treasury Units Register.
Upon the occurrence of a Termination Event, the Company's
obligation to pay Purchase Contract Adjustment Payments (including any accrued
Purchase Contract Adjustment Payments) shall cease.
Each Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of (including as a
result of a Collateral Substitution or the recreation of Corporate Units) any
other Certificate shall carry the right to accrued and unpaid Purchase Contract
Adjustment Payments, and the right to accrue Purchase Contract Adjustment
Payments, which rights were carried by the Purchase Contracts relating to such
other Certificates from the date of issuance to and excluding, the Purchase
Contract Settlement Date, unless such Purchase Contracts have been settled
earlier pursuant to this Agreement.
In the case of any Units with respect to which (1) Cash
Settlement of the related Purchase Contract is effected on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, (2) Early
Settlement of the related Purchase Contract is effected on an Early Settlement
Date or (3) Merger Early Settlement of the related Purchase Contract is effected
on a Merger Early Settlement Date, in each case, on a date that is after any
Record Date and on or prior to the next succeeding Payment Date, Purchase
Contract Adjustment Payments otherwise payable on such Payment Date shall be
payable on such Payment Date notwithstanding such Cash Settlement, Early
Settlement or Merger Early Settlement, as the case may be, and such Purchase
Contract Adjustment Payments shall be paid to the Person in whose name the
Certificate evidencing such Units (or one or more Predecessor 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
Units with respect to which Cash Settlement, Early Settlement or Merger Early
Settlement of the related Purchase Contract is effected on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, an Early
Settlement Date or a Merger Early Settlement Date, respectively, Purchase
Contract Adjustment Payments that would otherwise be payable after the fifth
Business Day preceding the Purchase Contract Settlement Date, after the Early
Settlement Date or after the Merger Early Settlement Date, respectively, with
respect to such Purchase Contract shall not be payable.
Promptly after the calculation of any adjustment to the
Purchase Contract Adjustment Payments arising from a Reset Transaction, the
Company shall give the Purchase Contract Agent notice thereof. All calculations
and determinations of the Adjusted Purchase Contract Adjustment Payment Rate
shall be made by the Company or its agent in good faith and the Purchase
Contract Agent shall have no responsibility with respect thereto. The Purchase
Contract Agent shall not at any time be under any duty or responsibility to any
Holder of Units to determine whether any facts exist which may require any
adjustment to the Purchase Contract Adjustment Payments, 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.
Section 5.3 Payment of Purchase Price; Remarketing.
(a) Unless a Termination Event has occurred or a Holder has settled the
related Purchase Contract through a Cash Settlement pursuant to Section 5.8, an
Early Settlement pursuant to Section 5.9 or a Merger Early Settlement pursuant
to Section 5.10, the settlement of the Purchase Contract relating to a Unit will
be made by Remarketing in accordance with this Section 5.3.
(b) The Company shall engage _______________, or another nationally
recognized investment bank, to act as Remarketing Agent (the "Remarketing
Agent") pursuant to the Remarketing Agreement to remarket (1) the Pledged Debt
Securities comprising part of the Corporate Units, other than those Pledged Debt
Securities of Holders that have elected not to participate in the Remarketing
pursuant to Section 5.3(e) below, and (2) the Separated Debt Securities of
holders of Separated Debt Securities that have elected to participate in the
Remarketing pursuant to paragraph ___ of the Indenture Officers' Certificate and
Section ___ of the Pledge Agreement (the Debt Securities described in clauses
(1) and (2) collectively being referred to as the "Remarketing Debt Securities")
pursuant to the Remarketing Procedures.
On the seventh Business Day prior to the Initial Remarketing
Date, the Company shall give notice of Remarketing in an Authorized Newspaper,
including the specific U.S. Treasury security or securities (including the CUSIP
number and/or the principal terms of such Treasury security or securities) that
must be delivered by Holders of Corporate Units that elect not to participate in
the Remarketing pursuant to Section 5.3(e) below, no later than 5:00 p.m. (New
York City time) on the Election Date. Not later than 15 calendar days nor more
than 30 calendar days prior to the Initial Remarketing Date, the Company shall
request DTC (or any successor Depositary), to notify its Beneficial Owners or
Depositary Participants holding Corporate Units or Separate Debt Securities of
the impending Remarketing.
The Purchase Contract Agent shall notify, by 11:00 a.m. (New
York City time), on the Business Day immediately preceding the Initial
Remarketing Date, the Remarketing Agent, the Collateral Agent, the Trustee and
the Company, by use of a notice substantially in the form of Exhibit G hereto,
of the aggregate principal amount of Pledged Debt Securities of Corporate Unit
Holders to be remarketed on the Initial Remarketing Date or Subsequent
Remarketing Date, as applicable, and the Collateral Agent, pursuant to the
Pledge Agreement, having separately notified the Remarketing Agent, the Trustee
and the Company of the aggregate principal amount of Separated Debt Securities
to be included on the Initial Remarketing Date or Subsequent Remarketing Date,
as applicable, by 11:00 a.m. (New York City time), on the Business Day
immediately preceding the Initial Remarketing Date, shall concurrently
therewith, pursuant to the Pledge Agreement, deliver for Remarketing to the
Remarketing Agent all Remarketing Debt Securities. Upon receipt of such notice
from the Purchase Contract Agent and the Collateral Agent and such Remarketing
Debt Securities from the Collateral Agent, the Remarketing Agent, pursuant to
the Remarketing Agreement, will, use its commercially reasonable efforts to
remarket such Remarketing Debt Securities on such date pursuant to the
Remarketing Procedures and the Remarketing Agreement.
If there has been a Successful Initial Remarketing or a
Successful Subsequent Remarketing, the Remarketing Agent will on the Remarketing
Date of such Remarketing (i) deduct and retain for itself as the remarketing fee
for itself an amount not exceeding [ ] basis points ([ ]%) of the principal
amount of each remarketed Remarketing Debt Security (the "Remarketing Fee"),
(ii) use the remaining proceeds attributable to the Pledged Debt Securities from
such Successful Remarketing to purchase the appropriate U.S. Treasury securities
(the "Treasury Portfolio" and the related interest in the Treasury Portfolio
applicable to a Corporate Unit, the "Treasury Portfolio Interest") with the
CUSIP numbers, if any, selected by Remarketing Agent, described in clauses
(1)(i) and (2)(i) of the definition of Remarketing Value related to the Debt
Securities of Holders of Corporate Units that were remarketed, (iii) if any
Separated Debt Securities were remarketed, remit to the Collateral Agent, along
with notification thereof, for payment to the holders of such Separated Debt
Securities sold in the Remarketing the remaining proceeds from such Successful
Remarketing equal to the amounts described in clauses (1)(ii) and (2)(ii) of the
definition of Remarketing Value and (iv) if there then remains any proceeds from
such Successful Remarketing, after the application of such proceeds as set forth
in clauses (i) through (iii) above of this sentence, then remit, along with
notification thereof, any such remaining proceeds to the Purchase Contract Agent
for the benefit of holders of the remarketed Debt Securities and to the
Collateral Agent for the benefit of the holders of such Separated Debt
Securities, on a pro rata basis, provided, however, that if such Successful
Remarketing is consummated after 4:30 p.m. (New York City time) on such
Remarketing Date and, despite using its commercially reasonable efforts, the
Remarketing Agent cannot cause the applications of the proceeds specified above
to occur on such Remarketing Date, then the Remarketing Agent may make such
applications and remittances on the next succeeding Business Day. Holders of
Remarketing Debt Securities that are so remarketed will not otherwise be
responsible for the payment of any remarketing fee or expenses in connection
with the Remarketing. On the Remarketing Settlement Date, the Remarketing Agent
shall deliver the Treasury Portfolio to the Collateral Agent. The Collateral
Agent, for the benefit of the Company, will thereupon apply such Treasury
Portfolio, in accordance with the Pledge Agreement, to secure such Holders'
obligations under the Purchase Contracts.
In the event that all or any portion of the Pledged Treasury
Portfolio Interest matures before the Purchase Contract Settlement Date, the
Collateral Agent shall invest the proceeds therefrom in Permitted Investments in
accordance with the Pledge Agreement. The Collateral Agent shall cause the
Securities Intermediary to remit, on the Purchase Contract Settlement Date, a
portion of the proceeds of the maturing Pledged Treasury Portfolio Interest and
of the investment earnings from the related investment in Permitted Investments,
in each case, in an amount equal to the Treasury Portfolio Return to the
Purchase Contract Agent for the benefit of the Holders of the related Corporate
Units when received. Without receiving any instruction from any such Holder of
Corporate Units, the Collateral Agent shall apply, on the Purchase Contract
Settlement Date, the proceeds of the maturing Pledged Treasury Portfolio
Interest and of the investment earnings from the related investment in Permitted
Investments in an aggregate amount equal to the aggregate Purchase Price
applicable to such Corporate Units to satisfy in full such Holder's obligations
to pay the Purchase Price to purchase the shares of Common Stock under the
related Purchase Contracts on the Purchase Contract Settlement Date. In the
event the sum of the proceeds from the related Pledged Treasury Portfolio
Interest and the investment earnings from the related investment in Permitted
Investments exceeds the sum of the related Treasury Portfolio Return and the
aggregate Purchase Price of the Purchase Contracts being settled thereby, the
Collateral Agent shall instruct the Securities Intermediary to distribute such
excess, when received, to the Purchase Contract Agent for distribution to the
Holders whose Purchase Contracts were settled with such proceeds, on a pro rata
basis.
If, by 4:00 p.m. (New York City time), on the ninth Business
Day preceding the Purchase Contract Settlement Date, the Remarketing Agent,
despite using its commercially reasonable efforts, has been and is unable to
remarket all of the Remarketing Debt Securities tendered for purchase at a price
equal to at least the Remarketing Value, the Remarketing Agent shall Transfer to
the Collateral Agent, along with notification thereof, by the sixth Business Day
preceding the Purchase Contract Settlement Date, the Pledged Debt Securities
that that were to be remarketed in the Initial or Subsequent Remarketing,
whereupon the Collateral Agent shall, for the benefit of the Company, apply such
Pledged Debt Securities, to secure the obligation of the related Holders of
Corporate Units to purchase Common Stock under the related Purchase Contracts.
(c) Unless a Termination Event has occurred or a Holder has settled the
related Purchase Contract through a Cash Settlement, an Early Settlement or a
Merger Early Settlement, or a Successful Initial Remarketing or a Successful
Subsequent Remarketing has occurred, such Holder shall be deemed to have
consented to the Remarketing of such Holder's Pledged Debt Securities in the
Final Remarketing on the Final Remarketing Date. The Purchase Contract Agent,
shall by 11:00 a.m. (New York City time), on the Business Day immediately
preceding the Final Remarketing Date, notify the Remarketing Agent, the
Collateral Agent, the Trustee and the Company, by use of a notice substantially
in the form of Exhibit G hereto, of such event and of the aggregate principal
amount of Pledged Debt Securities of Corporate Unit Holders to be remarketed on
the Final Remarketing Date, whereupon the Collateral Agent, shall concurrently
therewith, without any instruction from such Holder of Corporate Units with
respect to their Pledged Debt Securities, transfer the Remarketing Debt
Securities to the Remarketing Agent for Remarketing. Upon receiving such
Remarketing Debt Securities, the Remarketing Agent, pursuant to the terms of the
Remarketing Agreement, will use its commercially reasonable efforts to remarket
such Remarketing Debt Securities on the Final Remarketing Date.
If a Successful Final Remarketing shall have occurred, the
Remarketing Agent will on the Remarketing Date (i) deduct and retain for itself
the Remarketing Fee, pursuant to the Remarketing Agreement, (ii) cause the
remaining proceeds of the Remarketing with respect to the Pledged Debt
Securities in an amount equal to the aggregate principal amount of such Debt
Securities to be delivered to the Collateral Agent, on the Remarketing
Settlement Date, (iii) if any Separated Debt Securities were remarketed, remit,
along with notification thereof, to the Collateral Agent for payment to the
holders of such Separated Debt Securities sold in the Remarketing the remaining
proceeds from such Successful Remarketing attributable to the Separated Debt
Securities in an amount equal to the principal amount of such Debt Securities
and (iv) if there remains any proceeds from such Successful Remarketing, after
the application of such proceeds as set forth in clauses (i) through (iv) of
this sentence, then remit, along with notification thereof, such remaining
proceeds to the Purchase Contract Agent for the benefit of the holders of the
Pledged Debt Securities and to the Collateral Agent for the benefit of holders
of Separated Debt Securities, on a pro rata basis, provided, however, that if
such Successful Remarketing is consummated after 4:30 p.m. (New York City time)
on such Remarketing Date and, despite using its commercially reasonable efforts,
the Remarketing Agent cannot cause the applications of the proceeds specified
above to occur on such Remarketing Date, then the Remarketing Agent may make
such applications and remittances on the next succeeding Business Day. Holders
of the Remarketing Debt Securities that are so remarketed will not otherwise be
responsible for the payment of any remarketing fee or expenses in connection
with the Remarketing. The Purchase Contract Agent shall give written directions
to the Collateral Agent, and the Collateral Agent shall instruct the Securities
Intermediary, to apply a portion of the Proceeds with respect to the Pledged
Debt Securities from such Remarketing, on the Purchase Contract Settlement Date,
equal to the aggregate principal amount of such Pledged Debt Securities to
satisfy in full the obligations of such Holders of Corporate Units to pay the
Purchase Price to purchase the shares of Common Stock under the related Purchase
Contracts.
If, (1) by 4:00 p.m. (New York City time), on the Final
Remarketing Date, despite using its commercially reasonable efforts, the
Remarketing Agent cannot remarket the Debt Securities included in the
Remarketing at a price equal to at least the Remarketing Value, or (2) the
Remarketing Agent has determined that the Remarketing may not be consummated as
contemplated herein and by the Remarketing Procedures under applicable law, the
Remarketing will be deemed to have failed (a "Failed Remarketing"). If a Failed
Remarketing occurs, the Remarketing Agent will, pursuant to the Remarketing
Agreement, promptly advise the Trustee, the Purchase Contract Agent, the
Collateral Agent, the Company and the Depositary that a Failed Remarketing has
occurred. The Collateral Agent, under the Pledge Agreement and for the benefit,
and on behalf, of the Company, may exercise its rights as a secured party with
respect to such Pledged Debt Securities, including those actions specified in
paragraph (d) below; provided that, if upon a Failed Remarketing, the Collateral
Agent exercises such rights for the benefit of the Company with respect to such
Pledged Debt Securities, any accumulated and unpaid interest on such Debt
Securities will become payable by the Company to the Purchase Contract Agent for
payment to the Holders of the Corporate Units to which such Pledged Debt
Securities relate. Such payment will be made by the Company on or prior to 11:00
a.m. (New York City time), on the Purchase Contract Settlement Date in lawful
money of the United States by certified or cashiers' check or wire transfer in
immediately available funds payable to or upon the order of the Purchase
Contract Agent. The Company will cause a notice of any Failed Remarketing to be
sent to the holders of all Debt Securities and to be published in an Authorized
Newspaper, in each case, no later than on the Business Day immediately preceding
the Purchase Contract Settlement Date.
(d) With respect to any Pledged Debt Securities which are subject of a
Failed Remarketing, the Collateral Agent, for the benefit of the Company, and
upon written direction of the Company as provided in the Pledge Agreement,
reserves all of its rights as a secured party with respect thereto and, subject
to applicable law and paragraph (e) below, may (i) retain such Debt Securities
in full satisfaction of the Holders' obligations under the related Purchase
Contracts or (ii) sell such Debt Securities in one or more public or private
sales.
(e) A Holder of Corporate Units may elect not to participate in the
Remarketing by creating Treasury Units by notifying the Purchase Contract Agent
of such election and complying with the procedures for creating Treasury Units
set forth in Section 3.13 until 5:00 p.m. (New York City time) on the Election
Date. A Holder that does not so create Treasury Units by delivering the Treasury
Security or Treasury Securities pursuant to this paragraph and Section 3.13
shall be deemed to have elected to participate in any Remarketing.
(f) In the event that all or any portion of the Pledged Treasury
Securities of Treasury Units matures before the Purchase Contract Settlement
Date, the Collateral Agent shall invest the proceeds therefrom in Permitted
Investments in accordance with the Pledge Agreement.
Without receiving any instruction from any such Holder of
Treasury Units, the Collateral Agent shall apply, on the Purchase Contract
Settlement Date, the proceeds of the maturing Pledged Treasury Securities and of
the investment earnings from the related investment in Permitted Investments, in
each case, in an amount equal to the aggregate Purchase Price applicable to such
Treasury Units to satisfy in full such Holder's obligations to pay the Purchase
Price to purchase the shares of Common Stock under the related Purchase
Contracts on the Purchase Contract Settlement Date.
In the event the sum of the proceeds from the related Pledged
Treasury Securities and the investment earnings from the related investment in
Permitted Investments exceeds the aggregate Purchase Price of the Purchase
Contracts being settled thereby, the Collateral Agent shall instruct the
Securities Intermediary to distribute such excess, when received, to the
Purchase Contract Agent for distribution to the Holders whose Purchase Contracts
were settled with such proceeds, on a pro rata basis.
(g) Any distributions to Holders of excess funds and interest described
in paragraphs (b), (c) and (f) above shall be payable at the office of the
Purchase Contract Agent in The City of New York maintained for that purpose or,
at the option of the Holder, or the holder of Separated Debt Securities, as
applicable, by check mailed to the address of the Person entitled thereto at
such address as it appears on the Register or by wire transfer to an account
specified by the Holder, or the holder of Separated Debt Securities, as
applicable.
(h) The obligations of each Holder to pay the Purchase Price are
non-recourse obligations and except to the extent paid by Cash Settlement, Early
Settlement or Merger Early Settlement, are payable solely out of the proceeds of
any Collateral pledged to secure the obligations of the Holders, and in no event
shall Holders be liable for any deficiency between such payments and the
Purchase Price.
(i) Notwithstanding anything to the contrary herein, the Company shall
not be obligated to issue any Common Stock in respect of a Purchase Contract or
deliver any certificates therefor to the Holder of the related Units unless the
Company shall have received payment in full of the aggregate Purchase Price for
the shares of Common Stock to be purchased thereunder by such Holder in the
manner herein set forth, which payment, in the case of Corporate Units upon the
occurrence of a Failed Remarketing, shall occur by the resale of Pledged Debt
Securities or foreclosure on and retention of such Pledged Debt Securities.
Section 5.4 Issuance of Shares of Common Stock.
(a) Unless a Termination Event shall have occurred on or prior to the
Purchase Contract Settlement Date, the applicable Early Settlement Date or the
Merger Early Settlement Date, upon its receipt of payment in full of the
Purchase Price for the shares of Common Stock purchased by Holders pursuant to
the provisions of this Article and subject to Section 5.5(b), the Company shall
issue and deposit with the Company's transfer agent and registrar for its Common
Stock (the "Common Stock Transfer Agent"), for the benefit of the Holders of the
Outstanding Units, one or more certificates representing the newly issued shares
of Common Stock registered in the name of the Purchase Contract Agent (or its
nominee) as custodian for the Holders (such certificates for shares of Common
Stock, together with any dividends or distributions for which a record date and
payment date for such dividend or distribution has occurred after the applicable
Early Settlement Date, the Merger Early Settlement Date or the Purchase Contract
Settlement Date, as the case may be, being hereinafter referred to as the
"Purchase Contract Settlement Fund") to which the Holders are entitled
hereunder. The Company shall furnish to the Purchase Contract Agent the name and
address of the Common Stock Transfer Agent and of any change thereof.
(b) Upon surrender of a Certificate to the Purchase Contract Agent on
or after the applicable Early Settlement Date, the Merger Early Settlement Date
or the Purchase Contract Settlement Date, as the case may be, together with
settlement instructions thereon duly completed and executed, the Holder of such
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 Units then held by such Holder), together with cash in
lieu of fractional shares as provided in Section 5.12 and any dividends or
distributions with respect to such shares constituting part of the Purchase
Contract Settlement Fund, but without any interest thereon (or, if such
Certificate is not surrendered to the Purchase Contract Agent; or if no such
instructions are given to the Purchase Contract Agent by the Holder, the Common
Stock Agent shall hold such certificate representing shares of Common Stock, and
the Purchase Contract Agent shall hold such cash in lieu of fractional shares
and dividends or distributions, as applicable, in the name of the Purchase
Contract Agent or its nominee in trust for the benefit of such Holder until the
expiration of the time period specified in the abandoned property laws of the
relevant state, following which the Purchase Contract Agent shall cause such
cash to be delivered to such Holders), and the Certificate so surrendered shall
forthwith be cancelled. Such shares shall be registered by the Common Stock
Transfer Agent in the Company's register for its Common Stock and in accordance
with its customary procedures for issuance of such Common Stock, in the name of
the Holder or the Holder's designee as specified in the settlement instructions
provided by the Holder to the Purchase Contract Agent and forwarded by the
Purchase Contract Agent to the Common Stock Transfer Agent. 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 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 Certificate evidencing such Purchase Contract or has
established to the satisfaction of the Company that such tax either has been
paid or is not payable.
Section 5.5 Adjustment of Settlement Rate and Early 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 the Common Stock in Common Stock, the Settlement Rate
in effect or the Early Settlement Rate, as applicable, in effect at the
opening of business on the Business Day following the date fixed for
the determination of shareholders entitled to receive such dividend or
other distribution shall be increased by dividing such Settlement Rate
by a fraction of which:
(i) 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
(ii) 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 any shares issuable in
respect of any 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 Common Stock (not being available on an
equivalent basis to Holders of the Units upon settlement of the
Purchase Contracts relating to such Units) entitling them, for a period
expiring within 45 days after the record date for the determination of
shareholders 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 Common Stock on the
date fixed for the determination of shareholders entitled to receive
such rights, options or warrants (other than pursuant to a dividend
reinvestment plan), the Settlement Rate or the Early Settlement Rate,
as applicable, 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 or the Early Settlement Rate, as
applicable, by a fraction of which:
(i) 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
(ii) 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 outstanding shall not include shares held in the
treasury of the Company but shall include any shares issuable in
respect of any 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 or split into a greater number of shares of Common Stock,
the Settlement Rate or the Early Settlement Rate, as applicable, in
effect at the opening of business on the day following the day upon
which such subdivision or split 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 or the Early Settlement Rate, as
applicable, 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, split or
combination becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of Common Stock evidences of its indebtedness
or assets (including securities, but excluding any rights, options or
warrants referred to in paragraph (2) of this Section 5.5(a), any
dividend or distribution paid exclusively in cash and any dividend or
distribution referred to in paragraph (1) of this Section 5.5(a)), the
Settlement Rate or the Early Settlement Rate, as applicable, in effect,
shall be adjusted so that the same shall equal the rate determined by
dividing the Settlement Rate or the Early Settlement Rate, as
applicable, in effect immediately prior to the close of business on the
date fixed for the determination of shareholders entitled to receive
such distribution by a fraction of which:
(i) the numerator shall be the Current Market Price
per share of 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) of the portion
of the assets or evidences of indebtedness so distributed
applicable to one share of Common Stock; and
(ii) the denominator shall be such Current Market
Price per share of 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
shareholders entitled to receive such distribution. In any case in
which this paragraph (4) is applicable, paragraph (2) of this Section
5.5(a) shall not be applicable.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of Common Stock (I) cash (excluding any cash
that is distributed in a Reorganization Event to which Section 5.5(b)
applies or as part of a distribution referred to in paragraph (4) of
this Section 5.5(a)) in an aggregate amount that, combined together
with the aggregate amount of any other distributions to all holders of
Common Stock made exclusively in cash (other than in connection with a
Reorganization Event) 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 Common Stock
concluded within the 12 months preceding the date of payment of the
distribution described in Clause (I) above and in respect of which no
adjustment pursuant to this paragraph (5) or paragraph (4) or paragraph
(6) of this Section 5.5(a) has been made, exceeds 15% of the product of
the Current Market Price per share of 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 or Early Settlement Rate, as applicable, in effect,
shall be increased so that the same shall equal the rate determined by
dividing the Settlement Rate or Early Settlement Rate, as applicable,
in effect immediately prior to the close of business on the date fixed
for determination of the shareholders entitled to receive such
distribution by a fraction of which:
(i) the numerator 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 combined amount distributed or payable in the
transactions described in clauses (I) and (II) above divided
by (y) the number of shares of Common Stock outstanding on
such date for determination; and
(ii) the denominator shall be equal to the Current
Market Price per share of 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 Common Stock
shall expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to shareholders (based on
the acceptance (up to any maximum specified in the terms of the tender
or exchange offer) of Purchased Shares) of (I) 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 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 paragraph (5) of this Section 5.5(a) or this
paragraph (6) has been made, and (II) the aggregate amount of any
distributions to all holders of Common Stock made exclusively in cash
within the 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 5.5(a) or this paragraph (6) has been
made, exceeds 15% of the product of the Current Market Price per share
of 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 or Early
Settlement Rate, as applicable, in effect, shall be adjusted so that
the same shall equal the rate determined by dividing the Settlement
Rate or Early Settlement Rate, as applicable, in effect immediately
prior to the close of business on the date of the Expiration Time by a
fraction of which:
(i) the numerator shall be equal to (A) the product
of (1) the Current Market Price per share of Common Stock on
the date of the Expiration Time and (2) 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 shareholders based on the
transactions described in clauses (I) and (II) above (assuming
in the case of clause (I) the acceptance, up to any maximum
specified in the terms of the tender or exchange offer, of
Purchased Shares); and
(ii) the denominator shall be equal to the product of
(A) the Current Market Price per share of 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 5.5(b)
applies) shall be deemed to involve:
(i) 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 shareholders entitled to
receive such distribution" and the "date fixed for such
determination" within the meaning of paragraph (4) of this
Section 5.5(a)); and
(ii) a subdivision, split 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 or split becomes
effective" or "the day upon which such combination becomes
effective", as the case may be, and "the day upon which such
subdivision, split or combination becomes effective" within
the meaning of paragraph (3) of this Section 5.5(a)).
(8) The "Current Market Price" per share of Common Stock on
any day means the average of the daily Closing Prices for the five
consecutive Trading Days selected by the Company commencing not more
than 30 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 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 or the Early
Settlement Rate, as applicable, 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 or the Early Settlement Rate, as
applicable, shall be required unless such adjustment would require an
increase or decrease of at least one percent thereof; 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 or the Early Settlement Rate, as applicable, pursuant
to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section
5.5(a), an adjustment shall also be made to the Applicable Closing
Price solely to determine which of clauses (1), (2) or (3) of the
definition of Settlement Rate or the Early Settlement Rate, as
applicable, in Section 5.1 will apply on the Purchase Contract
Settlement Date. Such adjustment shall be made by multiplying the
Applicable Closing Price by a fraction of which the numerator shall be
the Settlement Rate or the Early Settlement Rate, as applicable, in
effect immediately after such adjustment pursuant to paragraph (1),
(2), (3), (4), (5), (6), (7) or (10) of this Section 5.5(a) and the
denominator shall be the Settlement Rate or the Early Settlement Rate,
as applicable, in effect immediately before such adjustment; provided,
however, that if such adjustment to the Settlement Rate or the Early
Settlement Rate, as applicable, in effect, is required to be made
pursuant to the occurrence of any of the events contemplated by
paragraph (1), (2), (3), (4), (5), (7) or (10) of this Section 5.5(a)
during the period taken into consideration for determining the
Applicable Closing Price, appropriate and customary adjustments shall
be made to the Settlement Rate or the Early Settlement Rate, as
applicable.
(10) The Company may make such increases in the Settlement
Rate or the Early Settlement Rate, as applicable, in addition to those
required by this Section 5.5(a), 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, options or warrants to purchase or subscribe for
stock or from any event treated as such for income tax purposes or for
any other reason.
(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 shares of Common Stock outstanding immediately prior
to the merger or consolidation are 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 other than as a result of or after the occurrence
of a Termination Event (any such event, a "Reorganization
Event"),
the Settlement Rate or Early Settlement Rate, as applicable, in effect, will be
adjusted to provide that each Holder of Units will receive on the Purchase
Contract 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 (without any interest thereon, and without any
right to dividends or distribution thereon which have a record date that is
prior to the Purchase Contract Settlement Date) by a Holder of the number of
shares of Common Stock issuable on account of each Purchase Contract if the
Purchase Contract 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
(any such Person, a "Constituent Person"), or an Affiliate of a Constituent
Person to the extent such Reorganization Event provides for different treatment
of Common Stock held by Affiliates of the Company and non-Affiliates and such
Holder 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 ("non-electing
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
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing 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, dissolution or winding
up of the Company, the Company or a liquidating trust created in connection
therewith, shall execute and deliver to the Purchase Contract Agent an agreement
supplemental hereto providing that the Holders of each Outstanding Unit shall
have the rights provided by this Section 5.5(b). 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.
(c) All calculations and determinations pursuant to this Section 5.5
shall be made by the Company or its agent and the Purchase Contract Agent shall
have no responsibility with respect thereto.
Section 5.6 Notice of Adjustments and Certain Other Events.
----------------------------------------------
(a) Whenever the Settlement Rate or Early Settlement Rate, as
applicable, and the Applicable Closing Price are adjusted as herein provided,
the Company shall:
(i) forthwith compute the adjusted Settlement Rate or
Early Settlement Rate, as applicable and Applicable Closing
Price in accordance with Section 5.5 and prepare and transmit
to the Purchase Contract Agent an Officers' Certificate
setting forth the Settlement Rate or Early Settlement Rate, as
applicable and the Applicable Closing Price, 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 requires an adjustment to the Settlement Rate
or Early Settlement Rate, as applicable and the Applicable
Closing Price pursuant to Section 5.5 (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 Units of the occurrence of such event and a statement in
reasonable detail setting forth the method by which the
adjustment to the Settlement Rate then or Early Settlement
Rate, as applicable and the Applicable Closing Price was
determined and setting forth the adjusted Settlement Rate or
Early Settlement Rate, as applicable and Applicable Closing
Price.
(b) The Purchase Contract Agent shall not at any time be under any duty
or responsibility to any Holder of Units to determine whether any facts exist
which may require any adjustment of the Settlement Rate or Early Settlement
Rate, as applicable or the Applicable Closing Price, 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 Purchase Contract Agent
shall not be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at the time be issued or delivered with respect to any Purchase Contract;
and the Purchase Contract Agent makes no representation with respect thereto.
The Purchase Contract Agent shall not be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock pursuant to a
Purchase Contract or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article.
Section 5.7 Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights of
the Holders to receive, and the obligations of the Company to pay, Purchase
Contract Adjustment Payments and the rights and obligations of Holders to
purchase shares of Common Stock, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Purchase
Contract Agent or the Company, if, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon and after the
occurrence of a Termination Event, the Units shall thereafter represent the
right to receive the Debt Securities or Treasury Portfolio Interest forming a
part of such Units in the case of Corporate Units, or Treasury Securities in the
case of Treasury Units, in accordance with the provisions of Section 5.4 of the
Pledge Agreement. Upon the occurrence of a Termination Event, the Company shall
promptly, but in no event later than two Business Days thereafter, give written
notice to the Purchase Contract Agent and the Collateral Agent and shall cause
written notice thereof to be given to the Holders, at their addresses as they
appear in the Register.
Section 5.8 Cash Settlement.
(a) (i) Unless a Holder has effected an Early Settlement pursuant to
Section 5.9 or a Merger Early Settlement pursuant to Section 5.10, a Termination
Event shall have occurred pursuant to Section 5.7 or a Successful Remarketing
shall have occurred, Holders of Corporate Units may settle their Purchase
Contracts in cash by delivering to the Purchase Contract Agent a notice in
substantially the form of Exhibit F hereto regarding its intention to pay in
cash ("Cash Settlement") the Purchase Price for the shares of Common Stock to be
purchased pursuant to the related Purchase Contract; provided that such notice
must be given by 11:00 a.m. (New York City time) on the sixth Business Day
immediately preceding the Purchase Contract Settlement Date.
(ii) A Holder of a Corporate Unit who has so notified
the Purchase Contract Agent of its intention to make a Cash
Settlement in accordance with paragraph (a) (i) above shall
pay the Purchase Price to the Securities Intermediary for
deposit in the Collateral Account prior to 11:00 a.m. (New
York City time) on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date in lawful
money of the United States by certified or cashiers' check or
wire transfer, in each case in immediately available funds
payable to or upon the order of the Securities Intermediary
and the Securities Intermediary shall instruct the Collateral
Agent to release to the Purchase Contract Agent the Pledged
Debt Securities, for delivery to the Holders of the related
Corporate Units who have complied with this Section. Any cash
received by the Collateral Agent shall be invested promptly by
the Securities Intermediary in Permitted Investments and paid
to the Company on the Purchase Contract Settlement Date in
settlement of the Purchase Contract in accordance with the
terms of this Agreement and the Pledge Agreement. Any funds
received by the Securities Intermediary in respect of the
investment earnings from the investment in such Permitted
Investments shall be distributed to the Purchase Contract
Agent when received for payment, on a pro rata basis based on
the number of Corporate Units formerly held by such Holder, to
the Holders of the related Corporate Units on the Purchase
Contract Settlement Date.
(iii) If a Holder of a Corporate Unit fails to notify
the Purchase Contract Agent of its intention to make a Cash
Settlement in accordance with paragraph (a)(i) above, or
notifies the Purchase Contract Agent as provided in paragraph
(a)(i) above of its intention to pay the Purchase Price in
cash but fails to make such payment as required by paragraph
(a)(ii) above, such Holder shall be deemed to have consented
(A) to the disposition of the Pledged Debt Securities on the
third Business Day prior to the Purchase Contract Settlement
Date pursuant to the Final Remarketing as described in Section
5.3 or, (B) if a Failed Remarketing occurs, to the Collateral
Agent, for the benefit of the Company, and upon written
direction of the Company as provided in the Pledge Agreement,
exercising all of its rights as a secured party with respect
to any Pledged Debt Securities under the Pledge Agreement and,
subject to applicable law and Section 5.3(i), by either (i)
retaining such Debt Securities in full satisfaction of such
Holder's obligations under the related Purchase Contracts or
(ii) selling such Debt Securities in one or more public or
private sales.
(iv) By 11:00 a.m. (New York City time), on the
fourth Business Day immediately preceding the Purchase
Contract Settlement Date, the Purchase Contract Agent, based
on notices received by the Purchase Contract Agent pursuant to
Section 5.8(a)(i) hereof and notice from the Securities
Intermediary regarding cash received by it prior to such time,
shall notify the Remarketing Agent, the Collateral Agent, the
Trustee and the Company, by use of a notice substantially in
the form of Exhibit G hereto, of the aggregate principal
amount of Pledged Debt Securities to be remarketed on the
Final Remarketing Date in accordance with the procedures set
forth in Section 5.3(c).
(b) (i) Unless a Holder of a Treasury Unit has effected an Early
Settlement of the related Purchase Contract in the manner described in Section
5.9 or a Merger Early Settlement of the related Purchase Contract in the manner
described in Section 5.10, a Termination Event shall have occurred pursuant to
Section 5.7 or a Successful Remarketing shall have occurred, Holders of Treasury
Units may settle their Purchase Contracts in cash by delivering to each Holder
of a Treasury Unit who intends to pay in cash to satisfy such Holder's
obligation under the Purchase Contract shall notify the Purchase Contract Agent
by use of a notice in substantially the form of Exhibit F hereto regarding its
intention to pay in cash the Purchase Price for the shares of Common Stock to be
purchased pursuant to the related Purchase Contract. To settle its Purchase
Contracts in cash pursuant to this Section, such notice must be given prior to
5:00 p.m. (New York City time), on the second Business Day immediately preceding
the Purchase Contract Settlement Date. Prior to 11:00 a.m. (New York City time),
on the next succeeding Business Day, the Purchase Contract Agent shall notify
the Collateral Agent of the receipt of such notices from such Holders intending
to make a Cash Settlement.
(ii) A Holder of a Treasury Unit who has so notified
the Purchase Contract Agent of its intention to make a Cash
Settlement in accordance with paragraph (b)(i) above shall pay
the Purchase Price to the Securities Intermediary for deposit
in the Collateral Account prior to 11:00 a.m. (New York City
time), on the Business Day immediately preceding the Purchase
Contract Settlement Date in lawful money of the United States
by certified or cashiers' check or wire transfer, in each
case, in immediately available funds payable to or upon the
order of the Securities Intermediary and the Securities
Intermediary shall instruct the Collateral Agent to release to
the Purchase Contract Agent the Pledged Treasury Securities
for delivery to the Holders of the related Treasury Units who
have complied with this Section. Any cash received by the
Collateral Agent shall be invested promptly by the Securities
Intermediary in Permitted Investments and paid to the Company
on the Purchase Contract Settlement Date in settlement of the
Purchase Contract in accordance with the terms of this
Agreement and the Pledge Agreement. Any funds received by the
Securities Intermediary in respect of the investment earnings
from the investment in such Permitted Investments shall be
distributed to the Purchase Contract Agent when received for
payment to the Holder of the related Treasury Units on the
Purchase Contract Settlement Date.
(iii) If a Holder of a Treasury Unit fails to notify
the Purchase Contract Agent of its intention to make a Cash
Settlement in accordance with paragraph (b)(i) above, or does
notify the Purchase Contract Agent as provided in paragraph
(b)(i) above of its intention to pay the Purchase Price in
cash but fails to make such payment as required by paragraph
(b)(ii) above, then upon the maturity of the Pledged Treasury
Securities held by the Securities Intermediary, the principal
amount of the Treasury Securities received by the Securities
Intermediary shall be invested promptly in Permitted
Investments. On the Purchase Contract Settlement Date, an
amount equal to the Purchase Price shall be remitted to the
Company as payment thereof without receiving any instructions
from the Holder of the related Treasury Units. In the event
the sum of the Proceeds from the related Pledged Treasury
Securities and the investment earnings earned from such
investments is in excess of the aggregate Purchase Price of
the Purchase Contracts being settled thereby, the Collateral
Agent shall cause the Securities Intermediary to distribute
such excess to the Purchase Contract Agent for the benefit of
the Holder of the related Treasury Units when received.
(c) Upon Cash Settlement of any Purchase Contract:
(i) the Collateral Agent will in accordance with the
terms of the Pledge Agreement cause the Pledged Debt
Securities or the Pledged Treasury Securities, as the case may
be, relating to the relevant Units to be released from the
Pledge, free and clear of any security interest of the
Company, and transferred to the Purchase Contract Agent for
delivery to the Holder thereof or its designee as soon as
practicable;
(ii) subject to the receipt thereof, the Purchase
Contract Agent shall, by book-entry transfer or other
appropriate procedures, in accordance with written
instructions provided by the Holder thereof, transfer such
Debt Securities or such Treasury Securities, as the case may
be (or, if no such instructions are given to the Purchase
Contract Agent by the Holder, the Purchase Contract Agent
shall hold such Debt Securities or such Treasury Securities,
as the case may be, and any interest payment thereon, in the
name of the Purchase Contract Agent or its nominee in trust
for the benefit of such Holder until the expiration of the
time period specified in the abandoned property laws of the
relevant State) and, in connection with such Debt Securities,
the Purchase Contract Agent shall have no responsibility to
vote or take any other consensual action with respect thereto;
and
(iii) the Company shall cause the number of shares of
Common Stock issuable upon Cash Settlement of the related
Purchase Contracts pursuant to Section 5.4, together with any
payment in lieu of any fraction of a share, as provided in
Section 5.12, to the Holder which has exercised its right to
Cash Settlement, in accordance with Section 5.4.
Section 5.9 Early Settlement.
(a) Unless a Holder has effected a Merger Early Settlement of the
related Purchase Contract pursuant to Section 5.10 or a Termination Event shall
have occurred pursuant to Section 5.7, subject to and upon compliance with the
provisions of this Section 5.9, at the option of the Holder thereof, Purchase
Contracts relating to Units may be settled early ("Early Settlement") on or
prior to the Election Date. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts, the Holder of the Certificate
evidencing Units shall deliver such Certificate to the Purchase Contract 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 (payable to the Company in immediately
available funds) in an amount (the "Early Settlement Amount") equal to:
(1) 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; plus
(2) 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 Purchase Contract Adjustment
Payments payable on such Payment Date with respect to such Purchase
Contracts.
Except as provided in the immediately preceding sentence and
subject to the last paragraph of Section 5.2, no payment shall be made upon
Early Settlement of any Purchase Contract on account of any Purchase Contract
Adjustment Payments accrued on such Purchase 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
relating to any Units 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
Units 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 Units shall be the next succeeding
Business Day.
Upon the receipt of such Certificate and Early Settlement
Amount from the Holder, the Purchase Contract Agent shall pay to the Company
such Early Settlement Amount, the receipt of which payment the Company shall
confirm in writing. The Purchase Contract Agent shall then, in accordance with
Section 5.6 of the Pledge Agreement, notify the Collateral Agent that (A) such
Holder has elected to effect an Early Settlement, which notice shall set forth
the number of such Purchase Contracts as to which such Holder has elected to
effect Early Settlement, (B) the Purchase Contract Agent has received from such
Holder, and paid to the Company as confirmed in writing by the Company, the
related Early Settlement Amount and (C) all conditions to such Early Settlement
have been satisfied.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the
related Units, the Company shall issue, and the Holder shall be entitled to
receive, 3.0084 shares of Common Stock, subject to adjustment in the same manner
and at the same time as the Settlement Rate is adjusted pursuant to Section 5.5,
on account of each Purchase Contract as to which Early Settlement is effected
(the "Early Settlement Rate").
(c) No later than the third Business Day after the applicable Early
Settlement Date, the Company shall cause:
(1) the shares of Common Stock issuable upon Early Settlement
of the related Purchase Contracts to be issued and delivered pursuant
to Section 5.4, together with payment in lieu of any fraction of a
share, as provided in Section 5.12; and
(2) the related Debt Securities, in the case of Corporate
Units, or the related Treasury Securities, in the case of Treasury
Units, to be released from the Pledge by the Collateral Agent and
transferred, in each case, to the Purchase Contract Agent for delivery
to the Holder thereof or its designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt by the Common Stock Transfer Agent of shares of Common Stock from the
Company and receipt by the Purchase Contract Agent of the related Debt
Securities, or Treasury Securities, as the case may be, from the Securities
Intermediary, as applicable, the Common Stock Transfer 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 Certificate
evidencing the related Units as forwarded by the Purchase Contract Agent to the
Common Stock Transfer Agent, deliver to such Holder a certificate or
certificates for the full number of shares of Common Stock issuable upon such
Early Settlement of the related Purchase Contract, pursuant to Section 5.4 and
the Purchase Contract Agent shall transfer to such Holder the related Debt
Securities or Treasury Securities, as the case may be, forming a part of such
Units.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts relating to less than all the Units evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the
Purchase Contract Agent shall execute on behalf of the Holder, authenticate and
deliver to the Holder thereof, at the expense of the Company, a Certificate
evidencing the Units as to which Early Settlement was not effected.
(f) Notwithstanding anything to the contrary contained herein, Holders
may make effect Early Settlement of Treasury Units only in integral multiples of
20 Treasury Units.
Section 5.10 Early Settlement Upon Merger.
(a) In the event of a merger or consolidation of the Company (which for
purposes of this Section 5.10 includes any successor company pursuant to a Cash
Merger (as defined below)) in which the Common Stock outstanding immediately
prior to such merger or consolidation is exchanged for consideration consisting
of at least 30% cash or cash equivalents (any such event a "Cash Merger" and the
date on which the Cash Merger takes place being referred to as a "Cash Merger
Date"), then the Company (or the successor to the Company hereunder) shall be
required to offer the Holder of each Outstanding Units the right to settle the
Purchase Contract relating to such Units prior to the Purchase Contract
Settlement Date (such early settlement, "Merger Early Settlement") as provided
herein. On or before the fifth Business Day after the consummation of a Cash
Merger, the Company or, at the request and expense of the Company, the Purchase
Contract Agent, shall give all Holders notice of the occurrence of the Cash
Merger and of the right of Merger Early Settlement arising as a result thereof.
The Company shall also deliver a copy of such notice to the Purchase Contract
Agent and the Collateral Agent.
Each such notice shall contain:
(i) the date, which shall be not less than 20
Business Days nor more than 30 Business Days after the date of
such notice, on which the Merger Early Settlement may be
effected (the "Merger Early Settlement Date");
(ii) the date, which shall be three Business Days
prior to the Merger Early Settlement Date, by which the Merger
Early Settlement right must be exercised by notice by the
Holders to the Purchase Contract Agent and the Company;
(iii) the Settlement Rate in effect as a result of
such Cash Merger and the kind and amount of securities, cash
and other property receivable by the Holder upon settlement of
each Purchase Contract pursuant to Section 5.5(b);
(iv) a statement to the effect that all or a portion
of the Purchase Price payable by the Holder to settle the
Purchase Contract will be offset against the amount of cash so
receivable upon exercise of Merger Early Settlement, as
applicable; and
(v) the instructions a Holder must follow to exercise
the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder must (i)
deliver to the Purchase Contract Agent at the Corporate Trust Office at least
three Business Days before the Merger Settlement Date, at 5:00 p.m. (New York
City time), the Certificate(s) evidencing the Units with respect to which the
Merger Early Settlement right is being exercised, 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 (ii) make payment (payable to the Company in
immediately available funds in an amount equal to the Early Settlement Amount
less the amount of cash that otherwise would be deliverable by the Company upon
settlement of the Purchase Contract in lieu of Common Stock pursuant to Section
5.5(b) and as described in the notice to Holders (the "Merger Early Settlement
Amount").
(c) On the Merger Early Settlement Date, the Company shall cause to be
delivered (i) the net cash, securities and other property to be received by such
exercising Holder, equal to the Settlement Rate as adjusted pursuant to Section
5.5, in respect of the number of Purchase Contracts for which such Merger Early
Settlement right was exercised pursuant to the applicable instructions contained
in Section 5.4(b), (ii) the Company shall cause the number of shares of Common
Stock issuable upon Merger Early Settlement, if any, of the related Purchase
Contracts pursuant to Section 5.4, together with any payment in lieu of any
fraction of a share, as provided in Section 5.12, to the Holder which has
exercised its right to Cash Settlement, in accordance with Section 5.4 and (iii)
the related Pledged Debt Securities, or if substituted therefore, the Pledged
Treasury Portfolio Interest, in the case of Corporate Units, or Pledged Treasury
Securities, in the case of Treasury Units, to be released from the Pledge by the
Collateral Agent and transferred, in each case, to the Purchase Contract Agent
for delivery to the Holder thereof or its designee. In the event a Merger Early
Settlement right shall be exercised by a Holder in accordance with the terms
hereof, all references herein to Purchase Contract Settlement Date shall be
deemed to refer to such Merger Early Settlement Date.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject
to receipt of such net cash, securities or other property from the Company and
the Pledged Debt Securities, Pledged Treasury Portfolio Interest or Pledged
Treasury Securities, as the case may be, from the Collateral Agent, the Purchase
Contract 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
Certificate evidencing the related Units, (i) transfer to the Holder the Pledged
Debt Securities, Pledged Treasury Portfolio Interest or Pledged Treasury
Securities, as the case may be, forming a part of such Units, and (ii) deliver
to the Holder such net cash, securities or other property issuable upon such
Merger Early Settlement together with payment in lieu of any fraction of a
share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect
to Purchase Contracts relating to less than all the Units evidenced by a
Certificate, upon such Merger Early Settlement the Company (or the successor to
the Company hereunder) shall execute and the Purchase Contract Agent shall
authenticate, countersign and deliver to the Holder thereof, at the expense of
the Company, a Certificate evidencing the Units as to which Merger Early
Settlement was not effected.
(f) Notwithstanding anything to the contrary contained herein, Holders
may effect Merger Early Settlement of Units only in integral multiples of 20
Corporate Units or 20 Treasury Units.
Section 5.11 Optional Remarketing.
Pursuant to the Indenture and the Remarketing Agreement,
holders of Separated Debt Securities may elect to have such Separated Debt
Security remarketed if such holder, on or prior to 5:00 p.m. (New York City
time) on the Election Date, delivers (a) to the Trustee and the Collateral Agent
a notice of that election, substantially in the form of Exhibit __ of the
Indenture Officers' Certificate and Exhibit __ of the Pledge Agreement,
respectively, specifying the aggregate principal amount of Debt Securities to be
remarketed, and (b) such Separated Debt Securities, by book-entry transfer or
other appropriate procedures, to the Collateral Agent for Remarketing, in each
case, pursuant to the Indenture. Once the holder of such Separated Debt
Securities delivers such notice and Separated Debt Securities as specified in
the preceding sentence, such election may not be withdrawn and may not be
conditioned upon the level at which the Reset Rate is established in the
Remarketing; provided, however, that if such a holder delivers only such a
notice but not the Separated Debt Securities subject to the notice, then none of
such holder's Separated Debt Securities shall be included in the Remarketing.
Section 5.12 No Fractional Shares.
No fractional shares or scrip representing fractional shares
of Common Stock shall be issued or delivered upon settlement on the Purchase
Contract Settlement Date or upon Early Settlement or Merger Early Settlement of
any Purchase Contracts. If 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 Certificates so surrendered. Instead of any fractional share of
Common Stock which would otherwise be deliverable upon settlement of any
Purchase Contracts on the Purchase Contract Settlement Date or upon Early
Settlement or Merger Early Settlement, the Company, through the Purchase
Contract Agent, shall make a cash payment in respect of such fractional interest
in an amount equal to the value of such fractional shares times the Applicable
Closing Price. The Company shall provide the Purchase Contract Agent from time
to time with sufficient funds to permit the Purchase Contract Agent to make all
cash payments required by this Section 5.12 in a timely manner. Promptly after
the calculation of the Applicable Closing Price, the Company shall give the
Purchase Contract Agent notice thereof. All calculations and determinations of
the Applicable Closing Price shall be made by the Company or its agent and the
Purchase Contract Agent shall have no responsibility with respect thereto.
Section 5.13 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 Certificate evidencing a Unit or any
issuance of a share of Common Stock in a name other than that of the registered
Holder of a Certificate surrendered in respect of the Units evidenced thereby,
other than in the name of the Purchase Contract Agent, as custodian for such
Holder, and the Company shall not be required to issue or deliver such share
certificates or Certificates unless 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 VI
Remedies
Section 6.1 Unconditional Right of Holders to Receive Purchase Contract
Adjustment Payments and to Purchase Shares of Common Stock.
Each Holder of Corporate Units or Treasury Units shall have
the right, which is absolute and unconditional, (1) (subject to the payment by
such Holder of Purchase Contract Adjustment Payments pursuant to Section
5.9(a)), to receive each Purchase Contract Adjustment Payment with respect to
the Purchase Contract constituting a part of such Units on the respective
Payment Date for such Units and (2) to purchase shares of Common Stock pursuant
to such Purchase Contract and, in each such case, to institute suit for the
enforcement of any such Purchase Contract Adjustment Payment and right to
purchase shares of Common Stock, and such rights shall not be impaired without
the consent of such Holder.
Section 6.2 Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any
right or remedy under this Agreement and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to such Holder,
then and in every such case, subject to any determination in such proceeding,
the Company and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of such
Holder shall continue as though no such proceeding had been instituted.
Section 6.3 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates in the last
paragraph of Section 3.10, no right or remedy herein conferred upon or reserved
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.4 Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or
remedy upon a default shall impair any such right or remedy or constitute a
waiver of any such right. Every right and remedy given by this Article or by law
to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
Section 6.5 Undertaking for Costs.
All parties to this Agreement agree, and each Holder of
Corporate Units or Treasury Units, by its acceptance of such Corporate Units or
Treasury Units, 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 Purchase Contract Agent for any
action taken, suffered or omitted by it as Purchase Contract 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 and expenses, 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 Purchase Contract Agent, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% of the Outstanding
Units, or to any suit instituted by any Holder for the enforcement of interest
payable on any Debt Securities or Purchase Contract Adjustment Payments on any
Purchase Contract on or after the respective Payment Date therefor in respect of
any Units held by such Holder, or for enforcement of the right to purchase
shares of Common Stock under the Purchase Contracts constituting part of any
Units held by such Holder.
Section 6.6 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 expressly waives
(to the extent that it may lawfully do so) 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 Purchase Contract Agent or the Holders, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VII
The Purchase Contract Agent
Section 7.1 Certain Duties and Responsibilities.
(a) The Purchase Contract Agent:
(1) undertakes to perform, with respect to the Units, such
duties and only such duties as are specifically set forth in this
Agreement and the Pledge Agreement, and no implied covenants or
obligations shall be read into this Agreement or the Pledge Agreement
against the Purchase Contract Agent; and
(2) in the absence of bad faith on its part, may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to
the Purchase Contract Agent and conforming to the requirements of this
Agreement or the Pledge Agreement, as applicable, but in the case of
any certificates or opinions which by any provision hereof are
specifically required to be furnished to the Purchase Contract Agent,
the Purchase Contract Agent shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Agreement or the Pledge Agreement, as applicable, but shall have no
duty to confirm or investigate the accuracy of mathematical
calculations or other facts stated therein.
(b) No provision of this Agreement or the Pledge Agreement shall be
construed to relieve the Purchase Contract Agent from liability for its own
grossly negligent action, its own grossly negligent failure to act, or its own
willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Purchase Contract 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 Purchase Contract Agent was grossly
negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement or the Pledge Agreement
shall require the Purchase Contract 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.
(c) Whether or not therein expressly so provided, every provision of
this Agreement and the Pledge Agreement relating to the conduct or affecting the
liability of or affording protection to the Purchase Contract Agent shall be
subject to the provisions of this Section.
(d) The Purchase Contract Agent is authorized to execute and deliver
the Pledge Agreement in its capacity as Purchase Contract Agent. The Purchase
Contract Agent shall be entitled to all of the rights, privileges, immunities
and indemnities contained in this Agreement with respect to any duties of the
Purchase Contract Agent under, or actions taken, omitted to be taken or suffered
by the Purchase Contract Agent pursuant to the Pledge Agreement.
Section 7.2 Notice of Default.
Within 30 days after the occurrence of any default by the
Company hereunder of which a Responsible Officer of the Purchase Contract Agent
has actual knowledge, the Purchase Contract Agent shall transmit by mail to the
Company and the Holders of Units, as their names and addresses appear in the
Register, notice of such default hereunder, unless such default shall have been
cured or waived.
Section 7.3 Certain Rights of Purchase Contract Agent.
Subject to the provisions of Section 7.1:
(1) the Purchase Contract Agent may conclusively rely and
shall be fully 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;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by an Officers'
Certificate, Issuer Order or Issuer Request, and any
resolution of the Board of Directors of the Company may
be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Agreement or the
Pledge Agreement the Purchase Contract Agent shall deem
it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder,
the Purchase Contract Agent (unless other evidence be
herein specifically prescribed) may, in the absence of
bad faith on its part, conclusively rely upon an
Officers' Certificate of the Company;
(4) the Purchase Contract Agent may consult with counsel of
its selection and the 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;
(5) the Purchase Contract 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 Purchase Contract Agent, in
its discretion, may make reasonable further inquiry or
investigation into such facts or matters related to the
execution, delivery and performance of the Purchase
Contracts as it may see fit, and, if the Purchase
Contract Agent shall determine to make such further
inquiry or investigation, it shall be given a reasonable
opportunity to examine the books, records and premises of
the Company, personally or by agent or attorney;
(6) the Purchase Contract Agent may execute any of the powers
hereunder or perform any duties hereunder either directly
or by or through agents or attorneys or an Affiliate and
the Purchase Contract Agent shall not be responsible for
any misconduct or negligence on the part of any agent or
attorney or an Affiliate appointed with due care by it
hereunder;
(7) the rights, privileges, protections, immunities and
benefits given to the Purchase Contract Agent, including,
but not limited to, its right to be indemnified, are
extended to, and shall be enforceable by, the Purchase
Contract Agent in each of its capacities hereunder, and
to each Purchase Contract Agent, custodian and other
Person employed to act hereunder;
(8) the Purchase Contract Agent shall not be liable for any
action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
(9) the Purchase Contract Agent shall not be charged with
knowledge of any default by the Company hereunder unless
a Responsible Officer of the Purchase Contract Agent
shall have received at the Corporate Trust Office of the
Purchase Contract Agent written notice of such default;
(10) the permissive right of the Purchase Contract Agent to
do things enumerated in this Agreement shall not be
construed as a duty;
(11) in no event shall the Purchase Contract Agent be liable
for any consequential, punitive, indirect or special loss
or damages of any kind whatsoever (including but not
limited to lost profit), even if the Purchase Contract
Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action;
(12) the Purchase Contract Agent shall not be responsible or
liable for any failure or delay in the performance of its
obligations under this Agreement arising out of or caused
directly or indirectly, by circumstances beyond its
reasonable control, including without limitation, acts of
God, earthquake, fires, floods, wars, civil or military
disturbances, terrorist acts, sabotage, epidemics, riots,
interruptions, loss or malfunctions of utilities,
computer (hardware or software) or communications
service, accidents, labor disputes, and acts of civil or
military authority or governmental actions, it being
understood that the Purchase Contract Agent shall use
reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance
as soon as practicable under the circumstances; and
(13) the Purchase Contract Agent may request that the Company
deliver a certificate setting forth the names of
individuals and/or titles of officers authorized at such
time to take specified action pursuant to this Agreement,
which certificate may be signed by any person authorized
to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate
previously delivered and not superseded.
Section 7.4 Not Responsible for Recitals or Issuance of Units.
The recitals contained herein and in the Certificates shall be
taken as the statements of the Company, and the Purchase Contract Agent assumes
no responsibility for their accuracy. The Purchase Contract Agent makes no
representations as to the validity or sufficiency of either this Agreement or of
the Units, or of the Pledge Agreement or the Pledge. The Purchase Contract Agent
shall not be accountable for the use or application by the Company of the
proceeds in respect of the Units or the Purchase Contracts and shall not be
responsible for the perfection, priority or maintenance of any security interest
created or intended to be created under the Pledge Agreement.
Section 7.5 May Hold Units.
Any Registrar or any other agent of the Company, or the
Purchase Contract Agent and its Affiliates, in their individual or any other
capacity, may become the owner or pledgee of Units and may otherwise deal with
the Company, the Collateral Agent or any other Person with the same rights it
would have if it were not Registrar or such other agent, or the Purchase
Contract Agent.
Section 7.6 Money Held in Custody.
Money held by the Purchase Contract Agent in custody hereunder
need not be segregated from the other funds except to the extent required by law
or provided herein. The Purchase Contract Agent shall be under no obligation to
invest or pay interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
Section 7.7 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Purchase Contract Agent compensation for
all services rendered by it hereunder and under the
Pledge Agreement as the Company and the Purchase Contact
Agent shall from time to time agree;
(2) except as otherwise expressly provided for herein, to
reimburse the Purchase Contract Agent upon its request
for all reasonable expenses, disbursements and advances
incurred or made by the Purchase Contract Agent in
accordance with any provision of this Agreement and the
Pledge 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 gross negligence or
willful misconduct; and
(3) to indemnify the Purchase Contract Agent and any
predecessor Purchase Contract Agent for, and to hold it
harmless against, any loss, liability or expense,
including taxes (other than taxes based upon, measured by
or determined by the income of the Purchase Contract
Agent), incurred without gross negligence or willful
misconduct 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 such claim or liability in connection
with the exercise or performance of any of its powers or
duties hereunder.
For purposes of this Section 7.7, "Purchase Contract Agent"
shall include any predecessor Purchase Contract Agent; provided, however, that
the negligence, bad faith or willful misconduct of any Purchase Contract Agent
hereunder shall not affect the rights of any other Purchase Contract Agent
hereunder.
The provisions of this Section 7.7 shall survive the
termination of this Agreement, the satisfaction or discharge of the Units and/or
the Separated Debt Securities and/or the resignation or removal of the Purchase
Contract Agent.
Section 7.8 Corporate Purchase Contract Agent Required; Eligibility.
There shall at all times be a Purchase Contract 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
(or being a member of a bank holding company having) a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
Federal or State authority and having a corporate trust office in the Borough of
Manhattan, The City of New York, if there be such a corporation in the Borough
of Manhattan, The City of New York, 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 Purchase Contract Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 7.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Purchase Contract Agent and no
appointment of a successor Purchase Contract Agent pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Purchase Contract Agent in accordance with the applicable requirements of
Section 7.10.
(b) The Purchase Contract 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 Purchase
Contract Agent required by Section 7.10 shall not have been delivered to the
Purchase Contract Agent within 30 days after the giving of such notice of
resignation, the resigning Purchase Contract Agent may petition, at the
expense of the Company, any court of competent jurisdiction for the
appointment of a successor Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any time by Act of
the Holders of a majority in number of the Outstanding Units delivered to
the Purchase Contract Agent and the Company. If the instrument of acceptance
by a successor Purchaser Contract Agent required by Section 7.10 shall not
have been delivered to the Purchase Contract Agent within 30 days after such
removal, the Purchase Contract Agent being removed may petition, at the
expense of the Company, any court of competent jurisdiction for the
appointment of a successor Purchase Contract Agent.
(d) If at any time:
(1) the Purchase Contract Agent shall cease to be eligible
under Section 7.8 and shall fail to resign after written
request therefor by the Company or by any such Holder; or
(2) the Purchase Contract Agent shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a
receiver of the Purchase Contract Agent or of its
property shall be appointed or any public officer shall
take charge or control of the Purchase Contract Agent or
of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Purchase Contract Agent, or (ii) any Holder who has been a bona fide Holder of a
Unit for at least six months may, on behalf of himself and all others similarly
situated, petition, at the expense of the Company, any court of competent
jurisdiction for the removal of the Purchase Contract Agent and the appointment
of a successor Purchase Contract Agent.
(e) If the Purchase Contract Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Purchase Contract Agent for any cause, the Company, by a Board Resolution,
shall promptly appoint a successor Purchase Contract Agent and shall comply
with the applicable requirements of Section 7.10. If no successor Purchase
Contract Agent shall have been so appointed by the Company and accepted
appointment in the manner required by Section 7.10, any Holder who has been
a bona fide Holder of a Unit for at least six months may, on behalf of
itself and all others similarly situated, petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a
successor Purchase Contract Agent.
(f) The Company shall give, or shall cause such successor Purchase
Contract Agent to give, notice of each resignation and each removal of the
Purchase Contract Agent and each appointment of a successor Purchase
Contract Agent by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders as their names and addresses appear in the
applicable Register. Each notice shall include the name of the successor
Purchase Contract Agent and the address of its Corporate Trust Office.
Section 7.10 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Purchase
Contract Agent, every such successor Purchase Contract Agent so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Purchase Contract Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Purchase Contract Agent
shall become effective and such successor Purchase Contract Agent, without
any further act, deed or conveyance, shall become vested with all the
rights, powers, agencies and duties of the retiring Purchase Contract Agent;
but, on the request of the Company or the successor Purchase Contract Agent,
such retiring Purchase Contract Agent shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Purchase
Contract Agent all the rights, powers and trusts of the retiring Purchase
Contract Agent and shall duly assign, transfer and deliver to such successor
Purchase Contract Agent all property and money held by such retiring
Purchase Contract Agent hereunder.
(b) Upon request of any such successor Purchase Contract Agent, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Purchase Contract Agent all such
rights, powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Purchase Contract Agent shall accept its
appointment unless at the time of such acceptance such successor Purchase
Contract Agent shall be eligible under this Article.
Section 7.11 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Purchase Contract Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Purchase
Contract Agent shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of the Purchase Contract Agent,
shall be the successor of the Purchase Contract Agent hereunder, provided such
Person shall be otherwise 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 Certificates shall have been authenticated and executed on behalf of
the Holders, but not delivered, by the Purchase Contract Agent then in office,
any successor to such Purchase Contract Agent may adopt such authentication and
execution and deliver the Certificates so authenticated and executed with the
same effect as if such successor Purchase Contract Agent had itself
authenticated and executed such Units.
Section 7.12 Preservation of Information; Communications to Holders.
(a) The Purchase Contract Agent shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders received by
the Purchase Contract Agent in its capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Purchase Contract Agent, and furnish to the Purchase
Contract Agent reasonable proof that each such applicant has owned a Unit
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
Units and is by a copy of the form of proxy or other communication which
such applicants propose to transmit, then the Purchase Contract Agent shall
mail to all the Holders of Units copies of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Purchase Contract Agent of the materials to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
such mailing.
Section 7.13 No Obligations of Purchase Contract Agent.
Except to the extent otherwise expressly provided in this
Agreement, the Purchase Contract Agent assumes no obligations and shall not be
subject to any liability under this Agreement, the Pledge Agreement or any
Purchase Contract in respect of the obligations of the Holder of any Units
thereunder. The Company agrees, and each Holder of a Certificate, by his
acceptance thereof, shall be deemed to have agreed, that the Purchase Contract
Agent's execution of the Certificates on behalf of the Holders shall be solely
as agent and attorney-in-fact for the Holders, and that the Purchase Contract
Agent shall have no obligation to perform such Purchase Contracts on behalf of
the Holders, except to the extent expressly provided in Article Five hereof.
Anything contained in this Agreement to the contrary notwithstanding, in no
event shall the Purchase Contract Agent or its officers, employees or agents be
liable for indirect, special, punitive, or consequential loss or damage of any
kind whatsoever, including, but not limited to, lost profits, whether or not the
likelihood of such loss or damage was known to the Purchase Contract Agent and
regardless of the form of action.
Section 7.14 Tax Compliance.
(a) 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 Units or
(ii) the issuance, delivery, holding, transfer, redemption or exercise of
rights under the Units. 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 Purchase Contract Agent shall comply in accordance with the
terms hereof with any reasonable written direction received from the Company
with respect to the execution or certification of any required documentation
and the application of such requirements to particular payments or Holders
or in other particular circumstances, and may for purposes of this Agreement
conclusively rely on any such direction in accordance with the provisions of
Section 7.1(a)(2) hereof.
(c) The Purchase Contract Agent shall maintain all appropriate
records documenting compliance with such requirements, and shall make such
records available, on written request, to the Company or its authorized
representative within a reasonable period of time after receipt of such
request.
ARTICLE VIII
Supplemental Agreements
Section 8.1 Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Purchase Contract 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 Purchase Contract Agent, to:
(1) 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 Certificates;
(2) evidence and provide for the acceptance of appointment
hereunder by a successor Purchase Contract Agent;
(3) 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;
(4) make provision with respect to the rights of Holders
pursuant to the requirements of Section 5.5(b); or
(5) except as provided for in Section 5.5, cure any
ambiguity, correct or supplement any provisions herein
which may be inconsistent with any other provisions
herein, or make any other provisions with respect to such
matters or questions arising under this Agreement,
provided such action shall not adversely affect the
interests of the Holders.
Section 8.2 Supplemental Agreements With Consent of Holders.
With the consent of the Holders of not less than a majority of
the outstanding Purchase Contracts voting together as one class, by Act of said
Holders delivered to the Company and the Purchase Contract Agent, the Company,
when authorized by a Board Resolution, and the Purchase Contract Agent may enter
into an agreement or agreements supplemental hereto for the purpose of modifying
in any manner the terms of the Purchase Contracts, or the provisions of this
Agreement or the rights of the Holders in respect of the Units; provided,
however, that, except as contemplated herein, no such supplemental agreement
shall, without the unanimous consent of the Holders of each outstanding Purchase
Contract affected thereby, other than as expressly contemplated by this
Agreement:
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to
be Pledged to secure a Holder's obligations under the
Purchase Contract, impair the right of the Holder of any
Purchase Contract to receive distributions on the related
Collateral or otherwise adversely affect the Holder's
rights in or to such Collateral;
(3) reduce Purchase Contract Adjustment Payments or change
any place where, or the coin or currency in which,
Purchase Contract Adjustment Payments are 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 Purchase Contract
Settlement Date or otherwise adversely affect the
Holder's rights under any Purchase Contract; or
(6) reduce the percentage of the outstanding Purchase
Contracts the consent of whose Holders is required for
any such supplemental agreement,
provided that, if any amendment or proposal referred to above would adversely
affect only the Corporate Units or the Treasury Units after securities of such
class are created and remain Outstanding, then only the affected class of Holder
as of the record date, if any, for the Holders entitled to vote thereon or
consent thereto will be entitled to vote or consent on such amendment or
proposal, and such amendment or proposal shall not be effective except with the
vote or consent of Holders of not less than a majority of such class; and
provided, further, that the unanimous consent of the Holders of each outstanding
Purchase Contract of the related Corporate Units or Treasury Units, as the case
may be, shall be required to approve any amendment or proposal specified in
clauses (1) through (6) above.
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 8.3 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 Purchase Contract Agent
shall be entitled to receive, and (subject to Section 7.1) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement. The
Purchase Contract Agent may, but shall not be obligated to, enter into any such
supplemental agreement which affects the Purchase Contract Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 8.4 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 Certificates theretofore or thereafter authenticated, executed
on behalf of the Holders and delivered hereunder, shall be bound thereby.
Section 8.5 Reference to Supplemental Agreements.
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 Purchase Contract Agent, bear a
notation in form approved by the Purchase Contract Agent as to any matter
provided for in such supplemental agreement. If the Company shall so determine,
new Certificates so modified as to conform, in the opinion of the Purchase
Contract 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 Purchase Contract Agent in exchange for
Outstanding Certificates.
ARTICLE IX
Merger, Consolidation Sale or Conveyance
Section 9.1 When Company May Merge, Etc.
The Company shall not consolidate with or merge into, or sell,
lease (for a term extending beyond the last stated maturity of the Units and the
Debt Securities then Outstanding) or convey all or substantially all of its
assets to, any Person or group of Affiliated Persons in one transaction or a
series of related transactions, unless the Company shall be the continuing
corporation, or the successor or transferee Person expressly assumes by one or
more supplemental agreements, in form satisfactory to the Purchase Contract
Agent, all the obligations of the Company with respect to the Units and this
Agreement, and the Company or the successor or transferee Person, as the case
may be, (i) shall be a Corporation organized and existing under the laws of one
of the states in the United States and (ii) shall not, immediately after such
consolidation or merger or sale, lease or conveyance, be in default in the
performance or any covenant or condition hereunder or under any of the Units.
The Company shall deliver to the Purchase Contract Agent an Officers'
Certificate (as defined in the Original Indenture) and an Opinion of Counsel (as
defined in the Original Indenture), each stating that such consolidation, merger
sale, lease or conveyance and such supplemental agreement comply with this
Agreement and that all conditions precedent to the consummation of any such
consolidation, or merger, or any sale, lease or conveyance have been met.
Section 9.2 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease or
conveyance of all or substantially all of the assets of the Company in
accordance with Section 9.1, the successor corporation or the transferee
corporation formed by such consolidation or into which the Company is merged or
to which such transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Agreement with the
same effect as if such successor corporation had been named as the Company
herein.
Such successor or transferee Person thereupon may cause to be
signed, and may issue either in its own name or in the name of Ohio Casualty
Corporation, any or all of the Certificates evidencing Units issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Purchase Contract Agent; and, upon the order of such successor or such
transferee Person, instead of the Company, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Purchase Contract
Agent shall authenticate and execute on behalf of the Holders and deliver any
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Purchase Contract Agent for authentication and
execution, and any Certificate evidencing Units which such successor corporation
or transferee corporation thereafter shall cause to be signed and delivered to
the Purchase Contract Agent for that purpose. All the Certificates issued shall
in all respects have the same legal rank and benefit under this Agreement as the
Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Certificates had been issued at the date of
the execution hereof.
In case of any such merger, consolidation, share exchange,
sale, assignment, transfer, lease or conveyance such change in phraseology and
form (but not in substance) may be made in the Certificates evidencing Units
thereafter to be issued as may be appropriate.
Section 9.3 Limitation.
Nothing in this Agreement shall be deemed to prevent or
restrict; (a) any consolidation or merger after the consummation of which the
Company would be the surviving or resulting entity or any conveyance or other
transfer or lease of any part of the properties of the Company which does not
constitute the entirety, or substantially the entirety, thereof; or (b) the
approval by the Company of, or the consent by the Company to, any consolidation
or merger to which any Restricted Subsidiary (as defined in the Original
Indenture) or any other subsidiary or affiliate of the Company may be a party or
any conveyance, transfer or lease by any Subsidiary (as defined in the Original
Indenture) or any such other subsidiary or affiliate of any of its assets.
ARTICLE X
Covenants
Section 10.1 Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the
Holders from time to time of the Units 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 10.2 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The
City of New York an office or agency where Certificates may be:
(1) presented or surrendered for acquisition of shares of
Common Stock upon settlement of the Purchase Contracts on
the Purchase Contract Settlement Date or Early Settlement
and for transfer of Collateral upon occurrence of a
Termination Event;
(2) surrendered for registration of transfer or exchange, for
a Collateral Substitution or re-establishment of a
Corporate Unit; and
(3) where notices and demands to or upon the Company in
respect of the Units and this Agreement may be served.
The Company will give prompt written notice to the Purchase Contract 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 Purchase Contract 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 Purchase Contract
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 Certificates may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will
give prompt written notice to the Purchase Contract 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
Units the Corporate Trust Office and appoints the Purchase Contract Agent at its
Corporate Trust Office as paying agent in such city.
Section 10.3 Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase Contract
Settlement Date reserve and keep available, free from preemptive rights, out of
its authorized but unissued shares of Common Stock the maximum number of shares
of Common Stock issuable against tender of payment in respect of all Purchase
Contracts constituting a part of the Units evidenced by Outstanding
Certificates.
Section 10.4 Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which
will be issued against tender of payment in respect of Purchase Contracts
constituting a part of the Outstanding Units will, upon issuance as contemplated
herein, be duly authorized, validly issued, fully paid and nonassessable.
Section 10.5 Statements of Officers of the Company as to Default.
The Company will deliver to the Purchase Contract Agent,
within 120 days after the end of each fiscal year of the Company (which as of
the date hereof is December 31) ending after the date hereof, an Officers'
Certificate (one of the signers of which shall be the principal executive
officer, principal financial officer, treasurer or principal accounting officer
of the Company), 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.
ARTICLE XI
Section 11.1 Trust Indenture Act.
(a) This Agreement is subject to the provisions of the TIA
that are required or deemed to be part of this Agreement and shall, to the
extent applicable, be governed by such provisions; and
(b) If and to the extent that any provision of this Agreement
limits, qualifies or conflicts with the duties imposed by Section 310 to 317,
inclusive, of the TIA, such imposed duties shall control.
Section 11.2 List of Holders of Securities.
(a) The Company shall furnish or cause to be furnished to the
Purchase Contract Agent (a) semiannually, not later than June 1 and December 1
in each year, commencing December 1, [200_], a list, in such form as the
Purchase Contract Agent may reasonably require, of the names and addresses of
the Holders ("List of Holders") as of a date not more than 15 days prior to the
delivery thereof, and (b) at such other times as the Purchase Contract Agent may
request in writing, within 30 days after the receipt by the Company of any such
request, a List of Holders as of a date not more than 15 days prior to the time
such list is furnished; provided that, the Company shall not be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Purchase Contract Agent by the
Company. The Purchase Contract Agent may destroy any List of Holders previously
given to it on receipt of a new List of Holders
(b) The Purchase Contract Agent shall comply with its
obligations under Section 311(a) of the TIA, subject to the provisions of
Section 311(b) and Section 312(b) of the TIA.
Section 11.3 Reports by the Purchase Contract Agent.
Not later than November 15 of each year, commencing November
15, [2002], the Purchase Contract Agent shall provide to the Holders such
reports, if any, as are required by Section 313(a) of the TIA in the form and in
the manner provided by Section 313(a) of the TIA. Such reports shall be as of
the preceding September 15. The Purchase Contract Agent shall also comply with
the requirements of Sections 313(b), (c) and (d) of the TIA.
Section 11.4 Periodic Reports to Purchase Contract Agent.
The Company shall provide to the Purchase Contract Agent such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314(a)(4) of the TIA in the form, in
the manner and at the times required by Section 314 of the TIA, provided, that
such compliance certificate shall be delivered annually on or before ________ in
each year, commencing _____________.
Section 11.5 Evidence of Compliance with Conditions Precedent.
The Company shall provide to the Purchase Contract Agent such
evidence of compliance with any conditions precedent provided for in this
Agreement as and to the extent required by Section 314(c) of the TIA. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the TIA may be given in the form of an Officer's Certificate. Any
opinion required to be given pursuant to Section 314(c)(2) of the TIA may be
given in the form of an Opinion of Counsel.
Section 11.6 Defaults; Waiver.
The Holders of a majority of the Outstanding Purchase
Contracts voting together as one class may, by vote, on behalf of all of the
Holders, waive any past Default and its consequences, except a default
(a) in the payment on any Security, or
(b) in respect of a provision hereof which under Section 8.2 cannot be
modified or amended without the consent of the Holder of each
Outstanding Security affected. Upon such waiver, any such Default
shall cease to exist, and any Default arising therefrom shall be
deemed to have been cured, for every purpose of this Agreement, but
no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 11.7 Purchase Contract Agent's Knowledge of Defaults.
The Purchase Contract Agent shall not be deemed to have
knowledge of any Default unless a Responsible Officer charged with the
administration of this Agreement shall have obtained written notice of such
Default from the Company or any Holder.
Section 11.8 Conflicting Interests.
The Indenture dated as of __________, 2002 among _________ as
issuer, the Company as guarantor and _______________, as trustee, as
supplemented and amended, shall be deemed to be specifically described in this
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the TIA.
Section 11.9 Direction of Purchase Contract Agent.
Section 316(a)(1)(A) of the TIA is hereby expressly excluded
from this Agreement, as permitted by the TIA.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
OHIO CASUALTY CORPORATION
By: _______________________________
Name:
Title:
[ ]
as Purchase Contract Agent
By: ________________________________
Name:
Title:
EXHIBIT A
FORM OF FACE OF CORPORATE UNIT CERTIFICATE
[This certificate is a global certificate within the meaning of the
Purchase Contract Agreement hereinafter referred to and is registered in the
name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This certificate is
exchangeable for certificates registered in the name of a person other than
the Depositary or its nominee only in the limited circumstances described in
the Purchase Contract Agreement and no transfer of this certificate (other
than a transfer of this certificate as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this certificate is presented by an authorized representative
of the Depositary to Ohio Casualty Corporation. or its agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or such other name as is requested by an authorized
representative of the Depositary (and any payment hereon is made to Cede & Co.
or to such other entity as is requested by an authorized representative of the
Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein.](1)
NO.: ________ CUSIP NO. __________
NUMBER OF CORPORATE UNITS: __________
OHIO CASUALTY CORPORATION
CORPORATE UNIT
This Corporate Unit Certificate certifies that [Cede & Co.](2), or
registered assigns, is the registered Holder of the number of Corporate Units
set forth above [or such other number as set forth in the Schedule of
Increases and Decreases in Global Certificate attached hereto](3). Each
Corporate Unit consists of (i) the rights and obligations of the Holder under
one Purchase Contract with Ohio Casualty Corporation, an Ohio corporation (the
"Company"), and (ii) either (a) the beneficial ownership by the Holder of one
____% Debt Security due ____ (the "Debt Security") of the Company, having a
principal amount of $50, subject to the Pledge of such Debt Security by such
Holder pursuant to the Pledge Agreement or (b) if the Corporate Unit has been
remarketed by the Remarketing Agent pursuant to the Remarketing Agreement, the
Treasury Portfolio Interest, subject to the Pledge of such Treasury Portfolio
Interest by such Holder pursuant to the Pledge Agreement.
________________________
(1) Insert in Global Certificates only.
(2) Insert in Global Certificates only.
(3) Insert in Global Certificates only.
Pursuant to the Pledge Agreement, the Debt Security or the Treasury
Portfolio Interest, as the case may be, constituting part of each Corporate
Unit evidenced hereby has been pledged to the Collateral Agent, for the
benefit of the Company, to secure the obligations of the Holder under the
Purchase Contract comprising a portion of such Corporate Units.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate Unit Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date, at a price equal to $50 in cash (the
"Stated Amount"), a number of shares of Common Stock equal to the Settlement
Rate then in effect, unless on or prior to the Purchase Contract Settlement
Date there shall have occurred a Termination Event, an Early Settlement or a
Merger Early Settlement with respect to the Corporate Units of which such
Purchase Contract is a part, all as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof. The purchase price
(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 Purchase Contract Settlement Date by application of payment received in
respect of the principal amount with respect to each Pledged Debt Security,
pursuant to the Remarketing, or with respect to the Pledged Treasury Portfolio
Interest, as the case may be, in each case, pledged pursuant to the Pledge
Agreement to secure the obligations under such Purchase Contract of the Holder
of the Corporate Units of which such Purchase Contract is a part.
The Company shall pay on __________, __________, __________ and
__________ of each year (each, a "Payment Date"), commencing [DATE], in
respect of each Purchase Contract forming part of a Corporate Unit evidenced
hereby, an amount (the "Purchase Contract Adjustment Payments") equal to (a)
if a Reset Transaction has not occurred, ____% per annum of the Stated Amount
or (b) following the occurrence of a Reset Transaction, if at all, the
Adjusted Purchase Contract Adjustment Payment Rate related to such Reset
Transaction until any such succeeding Reset Transaction shall occur, in either
case, computed on the basis of (i) for any full quarterly period, a 360-day
year of twelve 30-day months, (ii) for any period shorter than a full
quarterly period, a 30-day month and (iii) for periods less than a month, the
actual number of days elapsed per 30-day period. Such Purchase Contract
Adjustment Payments shall be payable to the Person in whose name this
Corporate Unit Certificate (or a Predecessor Corporate Unit Certificate) is
registered at the close of business on the Record Date for such Payment Date.
Interest on the Debt Securities, the beneficial ownership of which is
evidenced hereby until the later of the Remarketing Settlement Date and the
Purchase Contract Settlement Date, as applicable, is payable quarterly in
arrears on each Payment Date. Such interest payments shall be payable to the
Person in whose name this Corporate Unit Certificate (or a Predecessor
Corporate Unit Certificate) is registered at the close of business on the
Record Date for such Payment Date.
Purchase Contract Adjustment Payments and interest payments on the
Debt Securities will be payable at the office of the Purchase Contract Agent
in The City of New York or, at the option of the Company, by wire transfer or
by check mailed to the address of the Person entitled thereto as such address
appears on the Corporate Units 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 Purchase Contract Agent by manual signature, this Corporate Unit
Certificate shall not be entitled to any benefit under the Purchase Contract
Agreement or the Pledge Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
OHIO CASUALTY CORPORATION
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase
Contracts evidenced hereby)
By: ___________________,
not individually but solely as Attorney-in-Fact
of such Holder
By:____________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Corporate Unit Certificates referred to in the
within-mentioned Purchase Contract Agreement.
Dated: By:[ ]
as Purchase Contract Agent
By:____________________________
Authorized Signatory
(FORM OF REVERSE OF CORPORATE UNIT CERTIFICATE)
1. Purchase Contract Agreement; Purchase Contracts.
Each Purchase Contract evidenced hereby is being issued under and
governed by a Purchase Contract Agreement, dated as of [DATE] (as may be
amended, modified or supplemented from time to time pursuant to the terms
thereof, the "Purchase Contract Agreement"), between the Company and [ ], as
Purchase Contract Agent (including its successors thereunder, the "Purchase
Contract Agent"), to which Purchase Contract Agreement and amended, modified
or supplemental agreements thereto reference is hereby made for a description
of the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Purchase Contract Agent, the Company, and the
Holders and of the terms upon which the Corporate Unit Certificates are, and
are to be, executed and delivered. The terms of this Corporate Unit
Certificate include those stated herein and in the Purchase Contract
Agreement. To the extent permitted by applicable law, in the event of an
inconsistency between this Corporate Unit Certificate and the Purchase
Contract Agreement, the terms of the Purchase Contract Agreement shall
control. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate Unit Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price"), a number of shares of Common Stock equal to the Settlement
Rate then in effect unless on or prior to the Purchase Contract Settlement
Date, there shall have occurred a Termination Event, an Early Settlement or a
Merger Early Settlement with respect to the Units of which such Purchase
Contract is a part. The "Settlement Rate" is equal to:
(1) if the Applicable Closing Price (as defined below)
per share is equal to or greater than $____ (the
"Threshold Appreciation Price"), _____ shares of
Common Stock per Purchase Contract;
(2) if the Applicable Closing Price per share is less
than the Threshold Appreciation Price but greater
than $____ (the "Reference Price"), the number of
shares of Common Stock determined by dividing the
Stated Amount by the Applicable Closing Price; and
(3) if the Applicable Closing Price per share is less
than or equal to the Reference Price, _____ shares of
Common Stock per Purchase Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement.
No fractional shares of Common Stock will be issued upon settlement
of Purchase Contracts, as provided in the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Corporate Unit Certificate shall pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby by (i) effecting a Cash Settlement, an Early Settlement or Merger Early
Settlement or (ii) application of payments received in respect of the Pledged
Treasury Portfolio Interest acquired from the proceeds of a Remarketing of the
related Pledged Debt Securities relating to the Corporate Units represented by
this Corporate Unit Certificate. As provided in the Purchase Contract
Agreement, upon the occurrence of a Failed Remarketing, the Collateral Agent
shall exercise, for the benefit of the Company, its rights as a secured
creditor with respect to the Pledged Debt Securities related to this Corporate
Unit Certificate and, subject to applicable law, may (i) retain such Pledged
Debt Securities in full satisfaction of the Holders' obligations under the
Purchase Contracts or (ii) sell such Pledged Debt Securities in one or more
public or private sales, the proceeds, if any, of such sale to constitute full
satisfaction of the Holders' obligations under the Purchase Contracts. With
respect to such Pledged Debt Securities which are the subject of a Failed
Remarketing, any accrued and unpaid interest payments on such Pledged Debt
Securities will become payable by the Company to the Holder of this Corporate
Unit Certificate in the manner provided for in the Purchase Contract
Agreement.
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 of the aggregate purchase
price for the shares of Common Stock to be purchased thereunder in the manner
set forth in the Purchase Contract Agreement which payment, in the case of a
Failed Remarketing shall occur by the resale of Pledged Debt Securities or
foreclosure on and retention of such Pledged Debt Securities pursuant to the
Purchase Contract Agreement and the Pledge Agreement.
2. Termination Event; Early Settlement; Merger Early Settlement.
The Purchase Contracts and all 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, Purchase
Contract Adjustment Payments, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Purchase
Contract Agent or the Company, if, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon the occurrence
of a Termination Event, the Company shall promptly but in no event later than
two Business Days thereafter give written notice to the Purchase Contract
Agent, the Collateral Agent and the Holders, at their addresses as they appear
in the Corporate Units Register. Upon the occurrence of a Termination Event,
the Collateral Agent shall release the Debt Securities or Pledged Treasury
Portfolio Interest, as the case may be, from the Pledge in accordance with the
provisions of the Pledge Agreement. A Corporate Unit shall thereafter
represent the right to receive the Debt Security forming a part of such
Corporate Unit in accordance with the terms 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
relating to Units 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 Corporate
Unit Certificate, the Holder of this Corporate Unit Certificate shall deliver
this Corporate Unit Certificate to the Purchase Contract 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 immediately available funds payable to
the order of the Company in an amount (the "Early Settlement Amount") equal
to:
(1) 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,
plus
(2) if such delivery is made with respect to any Purchase
Contracts during the period from the close of
business on any Record Date for any Payment Date to
the opening of business on such Payment Date, an
amount equal to the Purchase Contract Adjustment
Payments payable on such Payment Date with respect to
such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the
related Units, the Pledged Debt Securities relating to such Units 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 Corporate Unit as to which Early
Settlement is effected equal to the Early Settlement Rate. The Early
Settlement Rate shall initially be equal to _____ shares of Common Stock per
Purchase Contract 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.
3. Creation of Treasury Units; Recreation of Corporate Units.
A holder of a Corporate Unit may substitute for the Pledged Debt
Securities securing its obligation under the related Purchase Contract
Treasury Securities in an aggregate principal amount at maturity equal to the
aggregate principal amount of the Pledged Debt Securities in accordance with
the terms of the Purchase Contract Agreement and the Pledge Agreement. From
and after such Collateral Substitution, the Units for which such Pledged
Treasury Securities secures the Holder's obligation under the Purchase
Contract shall be referred to as "Treasury Units." A Holder may make such
Collateral Substitution only in integral multiples of 20 Corporate Units for
20 Treasury Units. Such Collateral Substitution may cause the equivalent
aggregate principal amount of this Certificate to be increased or decreased;
provided, however, this Corporate Unit Certificate shall not represent more
than __________ Corporate Units, or if in the form of a Global Certificate,
such other maximum amount as shall at the time be prescribed by the applicable
Depositary. All such adjustments to the equivalent aggregate principal amount
of this Corporate Unit Certificate if a Global Certificate shall be duly
recorded by placing an appropriate notation on the Schedule as may be attached
hereto.
A Holder of Treasury Units may recreate Corporate Units by delivering
to the Securities Intermediary Debt Securities with an aggregate principal
amount equal to the aggregate principal amount at maturity of the Pledged
Treasury Securities in exchange for the release of such Pledged Treasury
Securities in accordance with the terms of the Purchase Contract Agreement and
the Pledge Agreement. Holders may recreate Corporate Units only in integral
multiples of 20 Corporate Units.
4. Registered Form; Denomination; Registration, Transfer and Exchange.
The Corporate Unit Certificates are issuable only in registered form
and only in denominations of a single Corporate Unit and any integral multiple
thereof. The transfer of any Corporate Unit Certificate will be registered and
Corporate Unit Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Corporate Units 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 Purchase Contract Agent may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith. A
Holder who elects to substitute a Treasury Security for Debt Securities,
thereby creating Treasury Units, shall be responsible for any fees or expenses
payable in connection therewith. Except as provided in the Purchase Contract
Agreement, for so long as the Purchase Contract relating to any Corporate
Units remains in effect, such Corporate Units shall not be separable into
their constituent parts, and the rights and obligations of the Holder of such
Corporate Unit in respect of the Debt Security or Treasury Portfolio Interest,
as the case may be, and Purchase Contract constituting such Corporate Units
may be transferred and exchanged only as Corporate Units.
Upon registration of transfer of this Corporate Unit 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 Purchase Contract
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 Corporate Unit Certificate. The Company covenants
and agrees, and the Holder, by its acceptance hereof, likewise covenants and
agrees, to be bound by the provisions of this paragraph.
The Company, the Purchase Contract Agent and its Affiliates and any
agent of the Company or the Purchase Contract Agent may treat the Person in
whose name this Corporate Unit Certificate is registered as the owner of the
Corporate Units evidenced hereby for the purpose of receiving payments of
interest payable quarterly on the Debt Securities or Treasury Portfolio
Return, as the case may be, receiving Purchase Contract Adjustment Payments,
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 Purchase Contract
Agent nor any such agent shall be affected by notice to the contrary.
5. Place and Method of Payment.
The Company shall pay, on each Payment Date, the Purchase Contract
Adjustment Payments payable in respect of each Purchase Contract to the Person
in whose name the Corporate Unit Certificate evidencing such Purchase Contract
is registered at the close of business on the Record Date for such Payment
Date. Purchase Contract Adjustment Payments will be payable at the office of
the Purchase Contract Agent in The City of New York or, at the option of the
Company by wire transfer or by check mailed to the address of the Person
entitled thereto at such address as it appears on the Corporate Units
Register.
6. Authorization of Purchase Contract Agent.
The Holder of this Corporate Unit Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the
related Purchase Contracts forming part of the Corporate Units evidenced
hereby on its behalf as its attorney-in-fact, expressly withholds any consent
to the assumption (i.e., affirmance) of the Purchase Contracts by the Company
or its trustee in the event that the Company becomes the subject of a case
under the Bankruptcy Code, agrees to be bound by the terms and provisions
thereof, covenants and agrees to perform its obligations under such Purchase
Contracts, consents to the provisions of the Purchase Contract Agreement,
authorizes the Purchase Contract Agent to enter into and perform the Purchase
Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Debt Securities or
Treasury Portfolio Interest, as the case may be, relating to this Corporate
Unit Certificate pursuant to the Pledge Agreement. The Holder further
covenants and agrees that, to the extent and in the manner provided in the
Purchase Contract Agreement and the Pledge Agreement, but subject to the terms
thereof, payments in respect of the aggregate principal amount of the Pledged
Debt Securities or Pledged Treasury Portfolio Interest, as the case may be,
shall be paid on the Purchase Contract Settlement Date 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.
7. Amendment.
The provisions of the Purchase Contract Agreement and this Corporate
Unit Certificate may be amended only as provided in the Purchase Contract
Agreement.
8. Voting Rights.
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.
Upon settlement of the Purchase Contracts, the Holder will be entitled to all
of the rights of a holder of shares of Common Stock, including, without
limitation, the right to vote and receive dividends and other payments and to
consent and receive notice as a shareholder in respect of the meetings of
shareholders and for the election of directors of the Company and for all
other matters, and all other rights whatsoever as a shareholder of the
Company. Under the terms of the Pledge Agreement, the Purchase Contract Agent
will be entitled to exercise the voting and any other consensual rights
pertaining to the Pledged Debt Securities upon behalf of and upon receipt of
instructions from the beneficial owners of such Pledged Debt Securities. Upon
receipt of notice of any meeting at which holders of Debt Securities are
entitled to vote or upon the solicitation of consents, waivers or proxies of
holders of Debt Securities, the Purchase Contract Agent shall, as soon as
practicable thereafter, mail to the Corporate Unit Holders a notice:
(1) containing such information as is contained in the
notice or solicitation;
(2) stating that each Corporate Unit Holder on the record
date set by the Purchase Contract Agent therefor
(which, to the extent possible, shall be the same
date as the record date for determining the holders
of Debt Securities entitled to vote) shall be
entitled to instruct the Purchase Contract Agent as
to the exercise of the voting rights pertaining to
the Debt Securities constituting a part of such
Holder's Corporate Units; and
(3) stating the manner in which such instructions may be
given.
Upon the written request of the Corporate Unit Holders on such record date, the
Purchase Contract Agent shall endeavor insofar as practicable to vote or cause
to be voted, in accordance with the instructions set forth in such requests, the
maximum aggregate principal amount of Debt Securities as to which any particular
voting instructions are received. In the absence of specific instructions from
the Holder of a Corporate Unit, the Purchase Contract Agent shall abstain from
voting the Debt Securities evidenced by such Corporate Units.
9. Severability.
If any provision in this Corporate Unit and the Debt
Securities is invalid or unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (i) the other provisions of this Corporate Unit shall
remain in full force and effect in such jurisdiction and shall be liberally
construed in order to carry out the intentions of the parties hereto
as nearly
as may be possible and (ii) the invalidity or unenforceability of any provision
of this Corporate Unit in any jurisdiction shall not in any way affect the
validity or enforceability of such provision in any other jurisdiction.
10. Governing Law.
THIS CORPORATE UNIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
11. Jurisdiction; Venue.
The Company hereby submits to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to the Indenture and the Debt
Securities or the transactions contemplated hereby. The Company hereto
irrevocably waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
12. Co-Units of Purchase Contract Agreement.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Purchase Contract Agent at its address set forth in
Section 1.5 of the Purchase Contract Agreement.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - As tenants in common
TEN ENT - As tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - [custodian] Custodian for [minor] Under The
Uniform Gifts to Minors Act of [Date]
Additional abbreviations may also be used though not in the above
list.
----------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
(insert name of assignee)
--------------------------------------------------------------------------------
(insert social security or taxpayer I.D.
or other identifying number of assignee)
--------------------------------------------------------------------------------
(insert address including zip code of assignee)
the within Corporate Unit Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ______________________________________
attorney to transfer said Corporate Unit Certificates on the books of Ohio
Casualty Corporation with full power of substitution in the premises.
Dated: ___________________ _______________________
Signature
NOTICE: The signature to
this assignment must
correspond with the name as
it appears upon the face of
the within Corporate Unit
Certificates in every
particular, without
alteration or enlargement
or any change whatsoever.
Signature Guarantee: ___________________________
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon settlement on the Purchase Contract Settlement
Date of the Purchase Contracts relating to the number of Corporate Units
evidenced by this Corporate Unit Certificate be registered in the name of, and
delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned agrees to pay any transfer
tax payable incident thereto.
Dated: ___________________ _______________________
Signature
Signature Guarantee: _________________
(if assigned to another person)
REGISTERED HOLDER
Please print name and address of Registered Holder:
--------------------------------------------------------------------------------
(insert name)
--------------------------------------------------------------------------------
(insert address)
--------------------------------------------------------------------------------
(insert social security or other taxpayer identification number, if any)
------------------------
If shares are to be registered in the name of and delivered to a Person other
than the Holder, please (i) print such Person's name and address and (ii)
provide a guarantee of your signature:
--------------------------------------------------------------------------------
(insert name)
--------------------------------------------------------------------------------
(insert address)
--------------------------------------------------------------------------------
(insert social security or other taxpayer identification number, if any)
ELECTION TO SETTLE EARLY
The undersigned Holder of this Corporate Unit Certificate hereby
irrevocably exercises the option to effect [Early Settlement] [Merger Early
Settlement] in accordance with the terms of the Purchase Contract Agreement
with respect to the Purchase Contracts relating to the number of Corporate
Units evidenced by this Corporate Unit Certificate specified below. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such [Early Settlement] [Merger Early Settlement] be
registered in the name of, and delivered, together with a check in payment for
any fractional share and any Corporate Unit Certificate representing any
Corporate Units evidenced hereby as to which [Early Settlement] [Merger 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. Pledged Debt Securities deliverable upon such
[Early Settlement] [Merger 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 agrees to
pay any transfer tax payable incident thereto.
_______________________________________
Signature
Dated: ________________________________
Signature Guarantee: __________________
Number of Units evidenced hereby as to which [Early
Settlement] [Merger Early Settlement] of the related Purchase Contracts is being
elected:
REGISTERED HOLDER
Please print name and address of Registered Holder:
--------------------------------------------------------------------------------
(insert name)
--------------------------------------------------------------------------------
(insert address)
--------------------------------------------------------------------------------
(insert social security or other taxpayer identification number, if any)
If shares of Common Stock or Corporate Unit Certificates are to be registered in
the name of and delivered to, and Pledged Debt Securities are to be transferred
to, a Person other than the Holder, please print such Person's name and address:
--------------------------------------------------------------------------------
(insert name)
--------------------------------------------------------------------------------
(insert address)
--------------------------------------------------------------------------------
(insert social security or other taxpayer identification number, if any)
Transfer Instructions for Pledged Debt Securities Transferable Upon [Early
Settlement] [Merger Early Settlement]:
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have
been made:
Number of Corporate
Amount of decrease Amount of increase Units evidenced by Signature of
in Number of in Number of this Global authorized
Corporate Units Corporate Units Certificate signatory of
evidenced by the evidenced by the following such Purchase Contract
Date Global Certificate Global Certificate decrease or increase Agreement
EXHIBIT B
FORM OF FACE OF TREASURY UNITS CERTIFICATE
[This certificate is a global certificate within the meaning of the
Purchase Contract Agreement hereinafter referred to and is registered in the
name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This certificate is
exchangeable for certificates registered in the name of a person other than
the Depositary or its nominee only in the limited circumstances described in
the Purchase Contract Agreement and no transfer of this certificate (other
than a transfer of this certificate as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this certificate is presented by an authorized representative
of the Depositary to Ohio Casualty Corporation or its agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or such other name as is requested by an authorized
representative of the Depositary (and any payment hereon is made to Cede & Co.
or to such other entity as is requested by an authorized representative of the
Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein.](1)
NO.: ________ CUSIP NO. __________
NUMBER OF CORPORATE UNITS: ___________
OHIO CASUALTY CORPORATION
TREASURY UNIT
This Treasury Unit Certificate certifies that [Cede & Co.](2), or
registered assigns, is the registered Holder of the number of Treasury Units
set forth above [or such other number as set forth in the Schedule of
Increases and Decreases in Global Certificate attached hereto](3). Each
Treasury Unit consists of (i) the rights and obligations of the Holder under
one Purchase Contract with Ohio Casualty Corporation, an Ohio corporation (the
"Company") and (ii) a 1/20 undivided beneficial ownership interest of a
Treasury Security having a principal amount at maturity equal to $1,000 and
maturing on or prior to [DATE].
______________________
(1) Insert in Global Certificates only.
(2) Insert in Global Certificates only.
(3) Insert in Global Certificates only.
Pursuant to the Pledge Agreement, the Treasury Securities
constituting part of each Treasury Unit evidenced hereby have been pledged to
the Collateral Agent, for the benefit of the Company, to secure the
obligations of the Holder under the Purchase Contract comprising a portion of
such Treasury Units.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury Unit Certificate to purchase, and the Company, to sell, on the
Purchase Contract Settlement Date, at a price equal to $50 in cash (the
"Stated Amount"), a number of shares of Common Stock equal to the Settlement
Rate then in effect, unless on or prior to the Purchase Contract Settlement
Date there shall have occurred a Termination Event or an Early Settlement or
Merger Early Settlement with respect to the Treasury Units of which such
Purchase Contract is a part, all as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof. The purchase price
(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 Purchase Contract Settlement Date by application of the proceeds from the
Treasury Securities at maturity pledged pursuant to the Pledge Agreement to
secure the obligations under such Purchase Contract of the Holder of the
Treasury Units of which such Purchase Contract is a part.
The Company shall pay on __________, __________, __________
and __________ of each year (each, a "Payment Date"), commencing [DATE], in
respect of each Purchase Contract forming part of the Treasury Units evidenced
hereby, an amount (the "Purchase Contract Adjustment Payments") equal to (a) if
a Reset Transaction has not occurred, ____% per annum of the Stated Amount or
(b) following the occurrence of a Reset Transaction, if at all, the Adjusted
Purchase Contract Adjustment Payment Rate related to such Reset Transaction
until any such succeeding Reset Transaction shall occur, in either case,
computed on the basis of (i) for any full quarterly period, a 360-day year of
twelve 30-day months, (ii) for any period shorter than a full quarterly period,
a 30-day month and (iii) for periods less than a month, the actual number of
days elapsed per 30-day period). Such Purchase Contract Adjustment Payments
shall be payable to the Person in whose name this Treasury Unit Certificate (or
a Predecessor Treasury Unit Certificate) is registered at the close of business
on the Record Date for such Payment Date.
Purchase Contract Adjustment Payments will be payable at the
office of the Purchase Contract Agent in The City of New York or, at the option
of the Company, by wire transfer or by check mailed to the address of the Person
entitled thereto as such address appears on the Treasury or Units 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 Purchase Contract Agent by manual signature, this Treasury Unit
Certificate shall not be entitled to any benefit under the Purchase Contract
Agreement or the Pledge Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
OHIO CASUALTY CORPORATION
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations of such
Holder under the Purchase
Contracts evidenced hereby)
By: ____________________,
not individually but solely as Attorney-in-Fact
of such Holder
By: _________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Treasury Unit Certificates referred to in
the within-mentioned Purchase Contract Agreement.
Dated: By: [ ]
as Purchase Contract Agent
By:___________________________
Authorized Officer
(FORM OF REVERSE OF TREASURY UNIT CERTIFICATE)
1. Purchase Contract Agreement; Purchase Contracts.
Each Purchase Contract evidenced hereby is being issued under and
governed by a Purchase Contract Agreement, dated as of [DATE] (as may be
amended, modified or supplemented from time to time pursuant to the terms
thereof, the "Purchase Contract Agreement") between the Company and [ ], as
Purchase Contract Agent (including its successors thereunder, the "Purchase
Contract Agent"), to which the 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 Purchase Contract Agent, the Company and the Holders and of
the terms upon which the Treasury Unit Certificates are, and are to be,
executed and delivered. The terms of this Treasury Unit Certificate include
those stated herein and in the Purchase Contract Agreement. To the extent
permitted by applicable law, in the event of an inconsistency between this
Treasury Unit Certificate and the Purchase Contract Agreement, the terms of
the Purchase Contract Agreement shall control. Capitalized terms used but not
defined herein have the meanings ascribed thereto in the Purchase Contract
Agreement.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury Unit Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price") a number of shares of Common Stock equal to the Settlement
Rate then in effect unless on or prior to the Purchase Contract Settlement
Date, there shall have occurred a Termination Event, an Early Settlement or a
Merger Early Settlement with respect to the Units of which such Purchase
Contract is a part. The "Settlement Rate" is equal to:
(1) if the Applicable Closing Price (as defined below) per share
is equal to or greater than $____ (the "Threshold Appreciation
Price"), ____ shares of Common Stock per Purchase Contract;
(2) if the Applicable Closing Price per share is less than the
Threshold Appreciation Price but greater than $____ (the
"Reference Price"), the number of shares of Common Stock
determined by dividing the Stated Amount by the Applicable
Closing Price; and
(3) if the Applicable Closing Price per share is less than or
equal to the Reference Price, then ____ shares of Common Stock
per Purchase Contract;
in each case subject to adjustment as provided in the Purchase
Contract Agreement.
No fractional shares of Common Stock will be issued upon settlement
of Purchase Contracts, as provided in the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Treasury Unit Certificate shall pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby by (i) effecting a Cash Settlement, an Early Settlement or Merger Early
Settlement or (ii) application of payments received in respect of the Pledged
Treasury Securities relating to the Treasury Units represented by this
Treasury Unit Certificate.
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 of the aggregate purchase
price for the shares of Common Stock to be purchased thereunder in the manner
herein set forth in the Purchase Contract Agreement.
2. Termination Event; Early Settlement; Merger Early Settlement.
The Purchase Contracts and all 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, Purchase
Contract Adjustment Payments, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Purchase
Contract Agent or the Company, if, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon the occurrence
of a Termination Event, the Company shall promptly but in no event later than
two Business Days thereafter give written notice to the Purchase Contract
Agent, the Collateral Agent and the Holders, at their addresses as they appear
in the Treasury Units Register. Upon the occurrence of a Termination Event,
the Collateral Agent shall release the Treasury Securities from the Pledge in
accordance with the provisions of the Pledge Agreement. A Treasury Unit shall
thereafter represent the right to receive the interest in the Treasury
Security forming a part of such Treasury Unit, in accordance with the terms 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
relating to Units 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 Treasury
Unit the Holder of this Treasury Unit Certificate shall deliver this Treasury
Unit Certificate to the Purchase Contract 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 immediately available funds payable to the order of the
Company in an amount (the "Early Settlement Amount") equal to:
(1) 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, plus
(2) if such delivery is made with respect to any Purchase
Contracts during the period from the close of business on any
Record Date for any Payment Date to the opening of business on
such Payment Date, an amount equal to the Purchase Contract
Adjustment Payments payable on such Payment Date with respect
to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the
related Units, the Pledged Treasury Securities relating to such Units 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 Treasury Unit as to which Early
Settlement is effected equal to the Early Settlement Rate. The Early
Settlement Rate shall initially be equal to ____ shares of Common Stock per
Purchase Contract 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.
3. Recreation of Corporate Units.
A Holder of Treasury Units may recreate Corporate Units by delivering
to the Collateral Agent Debt Securities with a principal amount equal to the
aggregate principal amount of maturity of the Pledged Treasury Securities in
exchange for the release of such Pledged Treasury Securities in accordance
with the terms of the Purchase Contract Agreement and the Pledge Agreement.
From and after such Collateral Substitution, the Holder's Units shall be
referred to as a "Corporate Units." Such Collateral Substitution may cause the
equivalent aggregate principal amount of this Certificate to be increased or
decreased; provided, however, this Treasury Unit Certificate shall not
represent more than __________ Treasury Units, or if in the form of a Global
Certificate, such other maximum amount as shall at the time be prescribed by
the applicable Depositary. All such adjustments to the equivalent aggregate
principal amount of this Treasury Unit Certificate if a Global Certificate,
shall be duly recorded, by placing an appropriate notation on the Schedule as
may be attached hereto. A Holder who elects to substitute Debt Securities for
Treasury Securities, thereby recreating Corporate Units, shall be responsible
for any fees or expenses associated therewith.
4. Registered Form; Denominations; Registration, Transfer and Exchange.
The Treasury Unit Certificates are issuable only in registered form
and only in denominations of a single Treasury Unit and any integral multiple
thereof. The transfer of any Treasury Unit Certificate will be registered and
Treasury Unit Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Treasury Units 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 Purchase Contract Agent may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith. A
Holder who elects to substitute Debt Securities for a Treasury Security,
thereby creating Corporate Units, shall be responsible for any fees or
expenses payable in connection therewith. Except as provided in the Purchase
Contract Agreement, for so long as the Purchase Contract relating to the
Treasury Units remains in effect, such Treasury Units shall not be separable
into their constituent parts, and the rights and obligations of the Holder of
such Treasury Units in respect of the Treasury Security and the Purchase
Contract constituting such Treasury Units may be transferred and exchanged
only as Treasury Units.
Upon registration of transfer of this Treasury Unit 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 Purchase Contract
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 Treasury Unit Certificate. The Company covenants
and agrees, and the Holder, by its acceptance hereof, likewise covenants and
agrees, to be bound by the provisions of this paragraph. The Company, the
Purchase Contract Agent and its Affiliates and any agent of the Company or the
Purchase Contract Agent may treat the Person in whose name this Treasury Unit
Certificate is registered as the owner of the Treasury Units evidenced hereby
for the purpose of receiving payments of Purchase Contract Adjustment
Payments, 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
Purchase Contract Agent nor any such agent shall be affected by notice to the
contrary.]
5. Place and Method of Payment.
The Company shall pay, on each Payment Date, the Purchase Contract
Adjustment Payments payable in respect of each Purchase Contract to the Person
in whose name the Treasury Unit Certificate evidencing such Purchase Contract
is registered at the close of business on the Record Date for such Payment
Date. Purchase Contract Adjustment Payments will be payable at the office of
the Purchase Contract Agent in The City of New York or, at the option of the
Company, by wire transfer or by check mailed to the address of the Person
entitled thereto at such address as it appears on the Treasury Units Register.
6. Authorization of Purchase Contract Agent.
The Holder of this Treasury Unit Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the
related Purchase Contracts forming part of the Treasury Units evidenced hereby
on its behalf as its attorney-in-fact, expressly withholds any consent to the
assumption (i.e., affirmance) of the Purchase Contracts by the Company or its
trustee in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform its obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, authorizes the
Purchase Contract Agent to enter into and perform the Purchase Contract
Agreement and the Pledge Agreement on its behalf as its attorney-in-fact, and
consents to the Pledge of the Treasury Securities relating to this Treasury
Unit Certificate pursuant to the Pledge Agreement. The Holder further
covenants and agrees, that, to the extent and in the manner provided in the
Purchase Contract Agreement and the Pledge Agreement, but subject to the terms
thereof, payments in respect of the aggregate principal amount of the Pledged
Treasury Securities at maturity shall be paid on the Purchase Contract
Settlement Date 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.
7. Amendment.
The provisions of the Purchase Contract Agreement and this Treasury
Unit Certificate may be amended only as provided in the Purchase Contract
Agreement.
8. Voting Rights.
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.
Upon settlement of the Purchase Contracts, the Holder will be entitled to all
of the rights of a holder of shares of Common Stock, including, without
limitation, the right to vote and receive dividends and other payments and to
consent and receive notice as a shareholder in respect of the meetings of
shareholders and for the election of directors of the Company and for all
other matters, and all other rights whatsoever as a shareholder of the
Company.
9. Severability.
If any provision in this Treasury Unit is invalid or unenforceable in
any jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions of this Treasury Unit shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision of this Treasury Unit in any
jurisdiction shall not in any way affect the validity or enforceability of
such provision in any other jurisdiction.
10. Governing Law.
THIS TREASURY UNIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
11. Jurisdiction; Venue.
The Company hereby submits to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to the Indenture and the Debt
Securities or the transactions contemplated hereby. The Company hereto
irrevocably waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
12. CoUnits of Purchase Contract Agreement.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Purchase Contract Agent at its address set forth in
Section 1.5 of the Purchase Contract Agreement.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - As tenants in common
TEN ENT - As tenants by the entireties
JT TEN - As joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - [custodian] Custodian for [minor] Under The Uniform
Gifts to Minors Act of [Date]
Additional abbreviations may also be used though not in the
above list.
----------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
(insert name of assignee)
--------------------------------------------------------------------------------
(insert social security or taxpayer I.D.
or other identifying number of assignee)
--------------------------------------------------------------------------------
(insert address including zip code of assignee)
the within Corporate Unit Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ______________________________________
attorney to transfer said Treasury Unit Certificates on the books of Ohio
Casualty Corporation with full power of substitution in the premises.
Dated: ___________________ _______________________
Signature
NOTICE: The signature to
this assignment must
correspond with the name as
it appears upon the face of
the within Treasury Unit
Certificates in every
particular, without
alteration or enlargement
or any change whatsoever.
Signature Guarantee: ___________________________
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on the Purchase Contract Settlement
Date of the Purchase Contracts relating to the number of Treasury Units
evidenced by this Treasury Unit Certificate be registered in the name of, and
delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned agrees to pay any transfer
tax payable incident thereto.
Dated: ___________________ _______________________
Signature
Signature Guarantee: __________________
(if assigned to another person)
REGISTERED HOLDER
Please print name and address of
Registered Holder:
--------------------------------------------------------------------------------
(insert name)
--------------------------------------------------------------------------------
(insert address)
--------------------------------------------------------------------------------
(insert social security or other taxpayer identification number, if any)
------------------------
If shares are to be registered in the name of and delivered to a Person other
than the Holder, please (i) print such Person's name and address and (ii)
provide a guarantee of your signature:
--------------------------------------------------------------------------------
(insert name)
--------------------------------------------------------------------------------
(insert address)
--------------------------------------------------------------------------------
(insert social security or other taxpayer identification number, if any)
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury Unit Certificate hereby
irrevocably exercises the option to effect Early Settlementin accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts relating to the number of Treasury Units evidenced by this Treasury
Unit Certificate specified below. The undersigned Holder directs that a
certificate for shares of Common Stock deliverable upon such Early
Settlementbe registered in the name of, and delivered, together with a check
in payment for any fractional share and any Treasury Unit Certificate
representing any Treasury Units evidenced hereby as to which Early
Settlementof 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. Pledged Debt Securities deliverable upon such Early
Settlementwill 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 agrees to pay any transfer tax payable
incident thereto.
_______________________________________
Signature
Dated: ________________________________
Signature Guarantee: __________________
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global
Certificate have been made:
Number of Treasury
Amount of decrease Amount of increase Units evidenced by Signature of
in Number of in Number of this Global authorized
Treasury Units Treasury Units Certificate signatory of
evidenced by the evidenced by the following such Purchase Contract
Date Global Certificate Global Certificate decrease or increase Agreement
EXHIBIT C
NOTICE FROM HOLDER TO PURCHASE CONTRACT AGENT
(Election for Creation of Treasury Units or Recreation of Corporate Units)
[ ]
as Purchase Contract Agent
Attention: _________________________
Re: [Corporate Units] [Treasury Units] of Ohio Casualty
Corporation
Reference is made to the Purchase Contract Agreement, dated as of
[DATE] (the "Purchase Contract Agreement"), between Ohio Casualty Corporation
(the "Company") and you, as Purchase Contract Agent and as Attorney-in-Fact
for the Holders of the Purchase Contracts. All capitalized terms that are used
but not defined herein have the meanings assigned to them in the Purchase
Contract Agreement.
The undersigned Holder hereby notifies you in accordance with Section
[3.13] [3.14] of the Purchase Contract Agreement, that such Holder has elected
to [create][recreate] ________ [Treasury Units] [Corporate Units] by
substitution of $__________ aggregate principal amount of [Treasury Securities
(CUSIP No. )] [Debt Securities] for the [Pledged Debt Securities] [Pledged
Treasury Securities] held in the Collateral Account, in accordance with the
Pledge Agreement.
The undersigned Holder hereby acknowledges that such Holder may
[create Treasury Units] [recreate Corporate Units] only in integral multiples
of 20 [Corporate Units] [Treasury Units].
________________________________
Name of Holder
________________________________
DTC Participant No.
________________________________
DTC Participant No. ____________
Signature
Signature Guarantee:____________
Date: __________________________
Please print name and address of Registered Holder:
______________________________________
Name
______________________________________
Social Security or other Taxpayer
Identification Number, if any
______________________________________
Address
EXHIBIT D
INSTRUCTION FROM HOLDER
TO PURCHASE CONTRACT AGENT
[ ]
as Purchase Contract Agent
___________________________
___________________________
Attention: _______________
Re: [Corporate Units] [Treasury Units] of Ohio Casualty Corporation
Reference is made to the Purchase Contract Agreement, dated as of
[DATE] (the "Purchase Contract Agreement"), between Ohio Casualty Corporation
(the "Company") and you, as Purchase Contract Agent and as Attorney-in-Fact
for the Holders of the Purchase Contracts. All capitalized terms that are used
but not defined herein have the meanings assigned to them in the Purchase
Contract Agreement.
The undersigned Holder hereby notifies you that in accordance with
Section [3.13] [3.14] of the Purchase Contract Agreement it has transferred to
_________________, as Securities Intermediary, for credit to the Collateral
Account, $______ aggregate principal amount of [Treasury Securities] [Debt
Securities] in exchange for the [Pledged Debt Securities] [Pledged Treasury
Securities] held in the Collateral Account, in accordance with the Purchase
Contract Agreement and the Pledge Agreement. The undersigned Holder has paid
all applicable fees relating to such exchange. The undersigned Holder hereby
requests that you to instruct the Collateral Agent to release to [you on
behalf of the undersigned Holder][the undersigned] the equivalent principal
amount of [Pledged Debt Securities] [Pledged Treasury Securities] related to
the above-captioned [Corporate Units] [Treasury Units].
___________________________
Name of Holder
___________________________
Signature
Signature Guarantee:__________________
Date: _____________________
Please print name and address of Registered Holder:
___________________________________________
Name
___________________________________________
[TRADES Account No.]
___________________________________________
Social Security or other Taxpayer
Identification Number, if any
___________________________________________
Address
EXHIBIT E
NOTICE FROM PURCHASE CONTRACT AGENT TO HOLDERS (Transfer of
Collateral upon Occurrence of a Termination Event)
[HOLDER]
Attention:
Fax: __________
Re: [Corporate Units] [Treasury Units] of Ohio Casualty Corporation
Reference is made to the Purchase Contract Agreement, dated as of
[DATE] (the "Purchase Contract Agreement"), between Ohio Casualty Corporation
(the "Company") and you, as Purchase Contract Agent and as Attorney-in-Fact
for the Holders of the Purchase Contracts. All capitalized terms that are used
but not defined herein have the meanings assigned to them in the Purchase
Contract Agreement.
We hereby notify you that a Termination Event has occurred and that
[the Debt Securities][Treasury Portfolio Interest][the Treasury Securities]
relating to your ownership interest in _____ [Corporate Units][Treasury
Portfolio Interest][Treasury Units] have been released and are being held by
us for your account pending receipt of transfer instructions with respect to
such [Debt Securities][Treasury Portfolio Interest][Treasury Securities] (the
"Released Securities").
Pursuant to Section 3.15 of the Purchase Contract Agreement, we
hereby request written transfer instructions with respect to the Released
Securities. Upon receipt of your instructions and upon transfer to us of your
[Corporate Units][Treasury Units] effected through book-entry transfer or by
delivery to us of your [Corporate Unit Certificate][Treasury Unit
Certificate], we shall transfer the Released Securities by book-entry
transfer, or other appropriate procedures, in accordance with your
instructions. In the event you fail to effect such transfer or delivery, the
Released Securities and any interest thereon, shall be held in our name or in
the name of our nominee in trust for your benefit, until the earlier of such
time as (A) such [Corporate Units][Treasury Units] are transferred or your
[Corporate Unit Certificate] [Treasury Unit Certificate] is surrendered or
satisfactory evidence is provided that your [Corporate Unit
Certificate][Treasury Unit Certificate] has been destroyed, lost or stolen,
together with any indemnification that we or the Company may require and (B)
the expiration of the time period specified in the abandoned property laws of
the relevant State.
By: ______________________,
as Purchase Contract Agent
___________________________
Name:
Title:
Date:
EXHIBIT F
NOTICE TO SETTLE BY CASH
[ ]
as Purchase Contract Agent
_______________________________
_______________________________
Attention: ___________________
Re: [Corporate Units] [Treasury Units] of Ohio Casualty Corporation
Reference is made to the Purchase Contract Agreement, dated as of
[DATE] (the "Purchase Contract Agreement"), between Ohio Casualty Corporation
(the "Company") and you, as Purchase Contract Agent and as Attorney-in-Fact
for the Holders of the Purchase Contracts. All capitalized terms that are used
but not defined herein have the meanings assigned to them in the Purchase
Contract Agreement.
The undersigned Holder hereby irrevocably notifies you in accordance
with Section 5.8 of the Purchase Contract Agreement, that such Holder has
elected to pay to the Securities Intermediary for deposit in the Collateral
Account, prior to 11:00 a.m. (New York City time), on the [fifth Business
Day][Business Day] immediately preceding the Purchase Contract Settlement Date
(in lawful money of the United States by certified or cashiers' check or wire
transfer, in immediately available funds), $______ as the Purchase Price for
the shares of Common Stock issuable to such Holder by the Company under the
related Purchase Contract on the Purchase Contract Settlement Date. The
undersigned Holder hereby instructs you to notify promptly the Collateral
Agent of the undersigned Holder's election to make such cash settlement with
respect to the Purchase Contracts related to such Holder's [Corporate Units]
[Treasury Units] and to release the related [Debt Securities] [Treasury
Securities] to such Holder upon such Cash Settlement.
___________________________
Signature
Date: _____________________
Signature Guarantee:_______
Please print name and address of Registered Holder:
______________________________________
Name
______________________________________
Social Security or other Taxpayer
Identification Number, if any
______________________________________
Address
EXHIBIT G
NOTICE FROM PURCHASE CONTRACT AGENT TO REMARKETING AGENT, COLLATERAL AGENT,
TRUSTEE AND THE COMPANY
(Initial, Subsequent or Final Remarketing)
_______________, as Remarketing Agent _______________, as Trustee
_______________ _______________
Attention: _______________ Attention: _______________
Fax: _______________ Fax: _______________
_______________, Collateral Agent Ohio Casualty Corporation
_______________ 0000 Xxxxxx Xxxx
_______________ Xxxxxxxxx, Xxxx 00000
Attention: _______________ Attention: _______________
Fax: _______________ Fax: _______________
Re: Corporate Units of Ohio Casualty Corporation
Reference is made to the Purchase Contract Agreement, dated as of
[DATE] (the "Purchase Contract Agreement"), between Ohio Casualty Corporation
(the "Company") and you, as Purchase Contract Agent and as Attorney-in-Fact
for the Holders of the Purchase Contracts. All capitalized terms that are used
but not defined herein have the meanings assigned to them in the Purchase
Contract Agreement.
In accordance with Section [5.3(b)] [5.3(c)] of the Purchase Contract
Agreement and based on [(A) the instructions received from Holders of
Corporate Units prior to 5:00 p.m. (New York City time), on the sixth Business
Day immediately preceding the Purchase Contract Settlement Date and notice
from the Securities Intermediary regarding Cash Settlements received prior to
11:00 a.m. (New York City time), on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date, in each case pursuant to
Section 5.8 of the Purchase Contract Agreement and (B)] the notices regarding
the election not to participate in the Remarketing received from Holders of
Corporate Units who complied with the procedures for creating Treasury Units
prior to 5:00 p.m. (New York City time), on the Election Date pursuant to
Section 5.3(e) of the Purchase Contract Agreement, we hereby notify you that
$___________ in aggregate principal amount of Pledged Debt Securities is to be
tendered for purchase in the Remarketing that is scheduled to take place [on
one or more occasions in the period commencing on [DATE] up to and including
[DATE]] [on [DATE], which is the third Business Day before the Purchase
Contract Settlement Date].
By: [ ]
as Purchase Contract Agent
------------------------------
Name:
Title:
Date:
