Exhibit 4(xv)
DOMINION RESOURCES, INC.
And
________________________,
As Agent
PURCHASE CONTRACT AGREEMENT
Dated as of __________ ____, ____
TABLE OF CONTENTS
ARTICLE I
Section 1.1 Definitions................................................................... 1
Section 1.2 Compliance Certificates and Opinions.......................................... 11
Section 1.3 Form of Documents Delivered to Agent.......................................... 12
Section 1.4 Acts of Holders; Record Dates................................................. 13
Section 1.5 Notices....................................................................... 14
Section 1.6 Notice to Holders; Waiver..................................................... 15
Section 1.7 Effect of Headings and Table of Contents...................................... 15
Section 1.8 Successors and Assigns........................................................ 15
Section 1.9 Separability Clause........................................................... 16
Section 1.10 Benefits of Agreement......................................................... 16
Section 1.11 Governing Law................................................................. 16
Section 1.12 Legal Holidays................................................................ 16
Section 1.13 Counterparts.................................................................. 16
Section 1.14 Inspection of Agreement....................................................... 17
ARTICLE II
Certificate Forms
Section 2.1 Forms of Certificates Generally............................................... 17
Section 2.2 Form of Agent's Certificate of Authentication................................. 18
ARTICLE III
The Securities
Section 3.1 Amount; Form and Denominations................................................ 18
Section 3.2 Rights and Obligations Evidenced by the Certificates.......................... 19
Section 3.3 Execution, Authentication, Delivery and Dating................................ 19
Section 3.4 Temporary Certificates........................................................ 20
Section 3.5 Registration; Registration of Transfer and Exchange........................... 21
Section 3.6 Book-Entry Interests.......................................................... 22
Section 3.7 Notices to Holders............................................................ 23
Section 3.8 Appointment of Successor Clearing Agency...................................... 23
Section 3.9 Definitive Certificates....................................................... 23
Section 3.10 Mutilated, Destroyed, Lost and Stolen Certificates............................ 24
Section 3.11 Persons Deemed Owners......................................................... 25
Section 3.12 Cancellation.................................................................. 25
Section 3.13 Creation of Treasury SPUS by Substitution of Treasury Securities............. 26
Section 3.14 Reestablishment of Corporate SPUS............................................. 27
Section 3.15 Transfer of Collateral upon Occurrence of Termination Event................... 28
Section 3.16 No Consent to Assumption...................................................... 29
ARTICLE IV
The Preferred Securities
Section 4.1 Interest Payments; Rights to Interest Payments Preserved....................... 29
Section 4.2 Notice and Voting.............................................................. 30
ARTICLE V
The Purchase Contracts
Section 5.1 Purchase of Shares of Common Stock............................................. 31
Section 5.2 Contract Adjustment Payments................................................... 33
Section 5.3 Deferral of Contract Adjustment Payments....................................... 33
Section 5.4 Payment of Purchase Price...................................................... 34
Section 5.5 Issuance of Shares of Common Stock............................................. 38
Section 5.6 Adjustment of Settlement Rate.................................................. 38
Section 5.7 Notice of Adjustments and Certain Other Events................................. 45
Section 5.8 Termination Event; Notice...................................................... 46
Section 5.9 Early Settlement............................................................... 46
Section 5.10 No Fractional Shares........................................................... 48
Section 5.11 Charges and Taxes.............................................................. 48
ARTICLE VI
Remedies
Section 6.1 Unconditional Right of Holders to Receive Contract Adjustment Payments
and to Purchase Shares of Common Stock......................................... 48
Section 6.2 Restoration of Rights and Remedies............................................. 49
Section 6.3 Rights and Remedies Cumulative................................................. 49
Section 6.4 Delay or Omission Not Waiver................................................... 49
Section 6.5 Undertaking for Costs.......................................................... 49
Section 6.6 Waiver of Stay or Extension Laws............................................... 50
ARTICLE VII
The Agent
Section 7.1 Certain Duties and Responsibilities............................................ 50
Section 7.2 Notice of Default.............................................................. 51
Section 7.3 Certain Rights of Agent........................................................ 51
Section 7.4 Not Responsible for Recitals or Issuance of Securities......................... 52
Section 7.5 May Hold Securities............................................................ 52
Section 7.6 Money Held in Custody.......................................................... 52
Section 7.7 Compensation and Reimbursement................................................. 53
Section 7.8 Corporate Agent Required; Eligibility.......................................... 53
Section 7.9 Resignation and Removal; Appointment of Successor.............................. 53
Section 7.10 Acceptance of Appointment by Successor......................................... 55
Section 7.11 Merger, Conversion, Consolidation or Succession to Business.................... 55
Section 7.12 Preservation of Information; Communications to Holders......................... 55
Section 7.13 No Obligations of Agent........................................................ 56
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Section 7.14 Tax Compliance.................................................................. 56
ARTICLE VIII
Supplemental Agreements
Section 8.1 Supplemental Agreements Without Consent of Holders.............................. 57
Section 8.2 Supplemental Agreements With Consent of Holders................................. 57
Section 8.3 Execution of Supplemental Agreements............................................ 58
Section 8.4 Effect of Supplemental Agreements............................................... 59
Section 8.5 Reference to Supplemental Agreements............................................ 59
ARTICLE IX
Consolidation, Merger, Sale or Conveyance
Section 9.1 Covenant Not to Consolidate, Merger, Sell or Convey Property Except
Under Certain Conditions........................................................ 59
Section 9.2 Rights and Duties of Successor Corporation...................................... 60
Section 9.3 Officers' Certificate and Opinion of Counsel Given to Purchase Contract
Agent........................................................................... 60
ARTICLE X
Covenants
Section 10.1 Performance Under Purchase Contracts............................................ 60
Section 10.2 Maintenance of Office or Agency................................................. 61
Section 10.3 Company to Reserve Common Stock................................................. 61
Section 10.4 Covenants as to Common Stock.................................................... 61
Section 10.5 Statements of Officers of the Company as to Default............................. 61
Section 10.6 ERISA........................................................................... 62
EXHIBIT A FORM OF CORPORATE SPUS CERTIFICATE
EXHIBIT B FORM OF TREASURY SPUS CERTIFICATE
EXHIBIT C INSTRUCTION TO PURCHASE CONTRACT AGENT
EXHIBIT D NOTICE FROM PURCHASE CONTRACT AGENT TO HOLDERS
EXHIBIT E NOTICE TO SETTLE BY SEPARATE CASH
EXHIBIT F NOTICE FROM PURCHASE CONTRACT AGENT TO COLLATERAL AGENT
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PURCHASE CONTRACT AGREEMENT, dated as of __________ ____, ____, between
DOMINION RESOURCES, INC., a Virginia corporation (the "Company"), and
________________________, a ____________________________, acting as purchase
contract agent for the Holders of Securities from time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Securities.
All things necessary to make the Purchase Contracts, when the Certificates
are executed by the Company and authenticated, executed on behalf of the Holders
and delivered by the Agent, as provided in this Agreement, the valid obligations
of the Company, and to constitute these presents a valid agreement of the
Company, in accordance with its terms, have been done. For and in consideration
of the premises and the purchase of the Securities by the Holders thereof, it is
mutually agreed as follows:
ARTICLE I
Definitions and Other Provisions of General Application
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 the
Remarketing Agreement: (i) Remarketing; and (ii) Reset Rate, and
(e) the following terms have the meanings given to them in this
Section 1.1(e):
"Act" has the meaning, with respect to any Holder, specified in Section
1.4.
"Adjusted Contract Adjustment Payment Rate," with respect to any Reset
Transaction, means the rate per annum that is the arithmetic average of the
rates quoted by two Reference Dealers selected by the Company or its successor
as the rate at which Contract Adjustment Payments should accrue so that the fair
market value, expressed in dollars, of a Corporate SPUS 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 SPUS for the 20
Trading Days immediately preceding the date of public announcement of such Reset
Transaction; provided that the Adjusted 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.
"Agent" means the Person named as the "Agent" in the first paragraph of
this Agreement until a successor Agent shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Agent" shall mean such
Person.
"Agreement" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more agreements supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning specified in Section 5.1.
"Articles of Amendment" means the Articles of Amendment of the Company
under which the Shares are issued.
"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 Global Certificate, a Person
who is the beneficial owner of such Book-Entry Interest as reflected on the
books of the Clearing Agency or on the books of a Person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company.
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"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 Clearing Agency 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 New York City are authorized or required by law or
executive order to remain closed or a day on which the Indenture Trustee or the
Property Trustee is closed for business; provided that for purposes of the
second paragraph of Section 1.12 only, the term "Business Day" shall also be
deemed to exclude any day on which trading on the New York Stock Exchange, Inc.
is closed or suspended.
"Cash Settlement" has the meaning specified in Section 5.4(a)(i).
"Certificate" means a Corporate SPUS Certificate or a Treasury SPUS
Certificate.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as a depositary for
the Securities 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 Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Price" has the meaning specified in Section 5.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning specified in Article I of the Pledge
Agreement.
"Collateral Account" has the meaning specified in Article I 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" has the meaning specified in Section 3.13.
"Common Stock" means the Dominion Resources, Inc. common stock, without par
value.
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"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.
"Company Resolution" means a resolution of the Company, in the form of a
resolution of the Board of Directors, in the form of a resolution of a duly
constituted committee of the Board of Directors, or in the form of a resolution
of two or more senior officers of the Company, authorizing, ratifying, setting
forth or otherwise validating agreements, execution and delivery of documents,
the issuance, form and terms of Securities, or any other actions or proceedings
pursuant or with respect to this Agreement.
"Contract Adjustment Payments" means, (a) if a Reset Transaction has not
occurred, the fee payable by the Company in respect of each Purchase Contract,
equal to ___% per annum of the Stated Amount, or (b) following the occurrence of
a Reset Transaction, the Adjusted Contract Adjustment Payment Rate related to
such Reset Transaction until any succeeding Reset Transaction shall occur,
computed (i) for any full quarterly period on the basis of a 360-day year of
twelve 30-day months and (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, for periods of less than a month, the actual number of days elapsed per 30-
day month.
"Corporate SPUS" means the collective rights and obligations of a Holder of
a Corporate SPUS Certificate in respect of Shares, subject to the Pledge
thereof, and the related Purchase Contract.
"Corporate SPUS Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Corporate SPUS specified on
such certificate, substantially in the form of Exhibit A hereto.
"Corporate SPUS Register" and "Corporate SPUS Registrar" have the
respective meanings specified in Section 3.5.
"Corporate Trust Office" means the principal corporate trust office of the
Agent at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at
________________________, ___________________, Attention: _______________.
"Current Market Price" has the meaning specified in Section 5.6(a)(8).
"Depositary" means DTC until another Clearing Agency becomes its successor.
"Dividend Rate" means the percentage rate per annum at which dividends will
be paid on each Share initially.
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"Dividend Yield," on any security for any period, means 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 Clearing Agency.
"Early Settlement" has the meaning specified in Section 5.9(a).
"Early Settlement Amount" has the meaning specified in Section 5.9(a).
"Early Settlement Date" has the meaning specified in Section 5.9(a).
"Early Settlement Rate" has the meaning specified in Section 5.9(b).
"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 specified in Section 1.4(e).
"Expiration Time" has the meaning specified in Section 5.6(a)(6).
"Global Certificate" means a Certificate that evidences all or part of the
Securities and is registered in the name of a Clearing Agency or a nominee
thereof.
"Holder" means, with respect to a Security, the Person in whose name the
Security evidenced by a Corporate SPUS Certificate and/or a Treasury SPUS
Certificate is registered in the related Corporate SPUS Register and/or the
Treasury SPUS Register, as the case may be; provided, however, that in
determining whether the Holders of the requisite number of Corporate SPUS and/or
Treasury SPUS have voted on any matter, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Security
remains in the form of one or more Global Certificates and if the Clearing
Agency which is the holder of such Global Certificate has sent an omnibus proxy
assigning voting rights to the Clearing Agency Participants to whose accounts
the Securities are credited on the record date, the term "Holder" shall mean
such Clearing Agency Participant acting at the direction of the Beneficial
Owners.
"Issuer Order" or "Issuer Request" means a written order or request signed
in the name of the Company by its Chairman of the Board, its President or one of
its Vice
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Presidents, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Agent.
"NYSE" has the meaning specified in Section 5.1.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, its President or one of its Vice Presidents, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Agent. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Agreement shall
include:
(i) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(ii) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(iii) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
to the Company (and who may be an employee of the Company), and who shall be
reasonably acceptable to the Agent. An opinion of counsel may rely on
certificates as to matters of fact.
"Outstanding Securities" means, with respect to any Corporate SPUS or
Treasury SPUS and as of the date of determination, all Corporate SPUS or
Treasury SPUS evidenced by Certificates theretofore authenticated, executed and
delivered under this Agreement, except:
(i) If a Termination Event has occurred, (i) Treasury SPUS and (ii)
Corporate SPUS for which the underlying Shares have been theretofore
deposited with the Agent in trust for the Holders of such Corporate SPUS;
(ii) Corporate SPUS and Treasury SPUS evidenced by Certificates
theretofore cancelled by the Agent or delivered to the Agent for
cancellation or deemed cancelled pursuant to the provisions of this
Agreement; and
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(iii) Corporate SPUS and Treasury SPUS 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 Agent proof satisfactory to it that such
Certificate is held by a bona fide purchaser in whose hands the Corporate
SPUS or Treasury SPUS 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 SPUS or Treasury SPUS
have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, Corporate SPUS or Treasury SPUS owned by the Company
or any Affiliate of the Company shall be disregarded and deemed not to be
Outstanding Securities, except that, in determining whether the Agent
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Corporate SPUS
or Treasury SPUS which a Responsible Officer of the Agent knows to be so
owned shall be so disregarded. Corporate SPUS or Treasury SPUS so owned
which have been pledged in good faith may be regarded as Outstanding
Securities if the pledgee establishes to the satisfaction of the Agent
the pledgee's right so to act with respect to such Corporate SPUS or
Treasury SPUS and that the pledgee is not the Company or any Affiliate of
the Company.
"Payment Date" means each ___________, ____, ___________, ____, __________
___ and ____________ ___, commencing _____________ ____, ____.
"Permitted Investments" has the meaning specified 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.
"SPUS" means the collective reference to the Corporate SPUS and the
Treasury SPUS.
"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 Shares or
the Treasury Securities in each case constituting a part of the Securities.
"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
7
Agent, on its own behalf and as attorney-in-fact for the Holders from time to
time of the Securities.
"Pledged Shares" has the meaning specified in the Pledge Agreement.
"Pledged Treasury Securities" has the meaning specified in the Pledge
Agreement.
"Predecessor Certificate" means a Predecessor Corporate SPUS Certificate or
a Predecessor Treasury SPUS Certificate.
"Predecessor Corporate SPUS Certificate" of any particular Corporate SPUS
Certificate means every previous Corporate SPUS Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder under the
Corporate SPUS evidenced thereby; and, for the purposes of this definition, any
Corporate SPUS Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Corporate SPUS
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
SPUS Certificate.
"Predecessor Treasury SPUS Certificate" of any particular Treasury SPUS
Certificate means every previous Treasury SPUS Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder under the
Treasury SPUS evidenced thereby; and, for the purposes of this definition, any
Treasury SPUS Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Treasury SPUS
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 SPUS
Certificate.
"Proceeds" has the meaning specified in Section 1 of the Pledge Agreement.
"Purchase Contract" means, with respect to any Security, the contract
forming a part of such Security and obligating the Company to (i) sell, and the
Holder of such Security to purchase, shares of Common Stock and (ii) pay the
Holder Contract Adjustment Payments, if any, in each case, on the terms and
subject to the conditions specified in Article Five hereof.
"Purchase Contract Settlement Date" means ______________.
"Purchase Contract Settlement Fund" has the meaning specified in Section
5.5.
"Purchase Price" has the meaning specified in Section 5.1.
"Purchased Shares" has the meaning specified in Section 5.6(a)(6).
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"Record Date" for the Contract Adjustment Payments payable on any Payment
Date means, as to any Global Certificate, the Business Day next preceding such
Payment Date, and as to any other Certificate, 15 Business Days prior to such
Payment Date.
"Reference Dealer" means a dealer engaged in trading of convertible
securities.
"Register" means the Corporate SPUS Register and the Treasury SPUS
Register.
"Registrar" means the Corporate SPUS Registrar and the Treasury SPUS
Registrar.
"Remarketing Agent" has the meaning specified in Section 5.4(b).
"Remarketing Agreement" means the Remarketing Agreement, dated as of
__________ ____, ____, between the Company and the Remarketing Agent.
"Reorganization Event" has the meaning specified in Section 5.6(b).
"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
shares or a distribution described in Section 5.6(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 common shares 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, with respect to the Agent, any officer of the
Agent assigned by the Agent to administer its corporate trust matters.
"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.
"Security" means a Corporate SPUS or a Treasury SPUS, as the case may be.
"Settlement Rate" has the meaning specified in Section 5.1.
"Shares" means the shares of Series [__] Preferred Stock to be issued by
the Company under the Articles of Amendment.
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"Stated Amount" means [$50] in cash.
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following events:
(i) at any time on or prior to the Purchase Contract
Settlement Date, a judgment, decree or court order shall have been
entered granting relief under the Bankruptcy Code, adjudicating the
Company to be insolvent, or approving as properly filed a petition
seeking reorganization or liquidation of the Company or any other
similar applicable federal or State law, 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;
(ii) 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 termination
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
(iii) 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 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 creditors, or shall admit in writing its inability to
pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in Section 5.1.
"TIA" means the Trust Indenture Act of 1939, as amended from time to time,
or any successor legislation.
"Trading Day" has the meaning specified in Section 5.1.
"Trading Price" of a security on any date of determination means (i) the
closing sale price (or, if no closing price is reported, the last reported sale
price) of a security
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(regular way) on the NYSE on such date, (ii) if such security is not listed for
trading on the NYSE 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, (iii) 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, Inc.; (iv) 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, (v) 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 (vi) if
such security is not so quoted, the average of the last bid and ask prices for
such security from a Reference Dealer.
"Treasury SPUS" means, following the substitution of one or more Treasury
Securities for Shares as collateral to secure a Holder's obligations under a
Purchase Contract, the collective rights and obligations of a Holder of a
Treasury SPUS Certificate in respect of such Treasury Securities, subject, in
each case, to the Pledge thereof, and the related Purchase Contract.
"Treasury SPUS Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Treasury SPUS specified on
such certificate, substantially in the form of Exhibit A hereto.
"Treasury SPUS Register" and "Treasury SPUS Registrar" have the respective
meanings specified in Section 3.5.
"Treasury Securities" means zero-coupon U.S. Treasury Securities (CUSIP No.
___________) which are the principal strip of the ____% U.S. Treasury Securities
which mature on _________________.
"Underwriting Agreement" means the Underwriting Agreement, dated as of the
date hereof, between the Company and ___________________.
"Vice President" means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president."
SECTION 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Agent to take any action in
accordance with any provision of this Agreement, the Company shall furnish to
the Agent an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Agreement relating to the proposed action have been
complied with and, if requested by the 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
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required by any provision of this Agreement relating to such particular
application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) 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;
(iii) 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
(iv) 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 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 its 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.
12
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 Agent and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 7.1) conclusive in favor of the Agent and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Agent deems
sufficient.
(c) The ownership of Securities shall be proved by the Corporate SPUS
Register or the Treasury SPUS 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 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 Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Securities. If any record date is set pursuant to this paragraph,
the Holders of the Outstanding Corporate SPUS and the Outstanding Treasury SPUS,
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 SPUS or the Treasury
SPUS, 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 Securities 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 Securities on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of
13
such record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Agent in writing and to each Holder of Securities in the
manner specified 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 Agent in writing, and to each Holder of Securities in the manner specified
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 Agent only upon receipt thereof:
If to the Agent:
______________________________
______________________________
______________________________
Telecopier No.: (___) ___-____
Attention: ___________________
If to the Company:
Dominion Resources, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (804) 819-____
Attention:
If to the Collateral Agent:
_______________________________
_______________________________
_______________________________
Telecopier No.: (___) ___-____
Attention: ___________________
14
If to the Securities Intermediary:
_______________________________
_______________________________
_______________________________
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
Agent, but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Agent shall constitute a
sufficient notification for every purpose hereunder.
SECTION 1.7 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.
15
SECTION 1.9 Separability Clause.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
SECTION 1.10 Benefits of Agreement.
Nothing contained in this Agreement or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and, 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 Securities
evidenced by their Certificates by their acceptance of delivery of such
Certificates.
SECTION 1.11 Governing Law.
This Agreement and the Securities shall be governed by, and construed in
accordance with, the laws of the State of New York.
SECTION 1.12 Legal Holidays.
In any case where any Payment Date shall not be a Business Day,
notwithstanding any other provision of this Agreement or the Corporate SPUS
Certificates or the Treasury SPUS Certificates, payment of the Contract
Adjustment Payments, if any, shall not be made on such date, but such payments
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 SPUS Certificates or the Treasury SPUS Certificates, the Purchase
Contracts shall not be performed on such date, but the Purchase Contracts shall
be performed 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.
16
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 SPUS Certificates (including the form of Purchase Contract
forming part of each Corporate SPUS evidenced thereby) shall be in substantially
the form specified 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 SPUS are listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of
the Company executing such Corporate SPUS Certificates, as evidenced by their
execution of the Corporate SPUS Certificates.
The definitive Corporate SPUS 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 SPUS
evidenced by such Corporate SPUS Certificates, consistent with the provisions of
this Agreement, as evidenced by their execution thereof.
The Treasury SPUS Certificates (including the form of Purchase Contract
forming part of the Treasury SPUS evidenced thereby) shall be in substantially
the form specified 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 SPUS may be listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Treasury SPUS Certificates, as evidenced by their
execution of the Treasury SPUS Certificates.
The definitive Treasury SPUS 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 SPUS
evidenced by such Treasury SPUS 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
17
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 FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REQUESTED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REGISTERED 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 Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the Corporate SPUS
shall be in substantially the form specified on the form of the Corporate SPUS
Certificates.
The form of the Agent's certificate of authentication of the Treasury SPUS
shall be in substantially the form specified on the form of the Treasury SPUS
Certificates.
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount; Form and Denominations.
The aggregate number of Securities evidenced by Certificates authenticated,
executed on behalf of the Holders and delivered hereunder is limited to
_____________, except for Certificates authenticated, executed and delivered
upon registration of transfer of, in exchange for, or in lieu of, other
Certificates pursuant to Section 3.4, 3.5, 3.10, 3.13, 3.14, 5.9 or 8.5.
18
The Certificates shall be issuable only in registered form and only in
denominations of a single Corporate SPUS or Treasury SPUS and any integral
multiple thereof.
SECTION 3.2 Rights and Obligations Evidenced by the Certificates.
Each Corporate SPUS Certificate shall evidence the number of Corporate SPUS
specified therein, with each such Corporate SPUS representing (1) the ownership
by the Holder thereof of a beneficial interest in a Share, subject to the Pledge
of that Share 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 Agent as attorney-in-fact for, and on behalf of, the Holder of
each Corporate SPUS shall pledge, pursuant to the Pledge Agreement, the Share
forming a part of such Corporate SPUS, to the Collateral Agent and grant to the
Collateral Agent a security interest in the right, title and interest of such
Holder in such Share for the benefit of the Company, to secure the obligation of
the Holder under each Purchase Contract to purchase Common Stock of the Company.
Prior to the purchase of shares of Common Stock, if any, under each Purchase
Contract, such Purchase Contract shall not entitle the Holder of a Corporate
SPUS 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.
Each Treasury SPUS Certificate shall evidence the number of Treasury SPUS
specified therein, with each such Treasury SPUS 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. Prior to the purchase of shares of Common Stock under each Purchase
Contract, such Purchase Contracts shall not entitle the Holder of a Treasury
SPUS 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 3.13 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
Agent for authentication, execution on behalf of the Holders and delivery,
together with its Issuer Order for authentication of such Certificates, and the
Agent in accordance with such Issuer Order shall authenticate, execute on behalf
of the Holders and deliver such Certificates.
19
The Certificates shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents. The signature of any
of these officers on the Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices 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 signatory of the Agent, as such Holder's attorney-in-fact. Such
signature by an authorized signatory of the Agent shall be conclusive evidence
that the Holder of such Certificate has entered into the 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 signatory of the 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 Agent, and the 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 specified 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 SPUS or Treasury SPUS, as the case
may be, are 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 Agent, and the 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 SPUS or Treasury SPUS, as
the case may be, as the temporary Certificate or Certificates so surrendered.
20
Until so exchanged, the temporary Certificates shall in all respects evidence
the same benefits and the same obligations with respect to the Corporate SPUS or
Treasury SPUS, as the case may be, evidenced thereby as definitive Certificates.
SECTION 3.5 Registration; Registration of Transfer and Exchange.
The Agent shall keep at the Corporate Trust Office a register (the
"Corporate SPUS Register") in which, subject to such reasonable regulations as
it may prescribe, the Agent shall provide for the registration of Corporate SPUS
Certificates and of transfers of Corporate SPUS Certificates (the Agent, in such
capacity, the "Corporate SPUS Registrar") and a register (the "Treasury SPUS
Register") in which, subject to such reasonable regulations as it may prescribe,
the Agent shall provide for the registration of the Treasury SPUS Certificates
and of transfers of Treasury SPUS Certificates (the Agent, in such capacity, the
"Treasury SPUS Registrar").
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Company shall execute and deliver to the Agent, and
the Agent shall authenticate, execute on behalf of the designated transferee or
transferees, and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of any authorized denominations, like
tenor, and evidencing a like aggregate number of Corporate SPUS or Treasury
SPUS, 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 SPUS or Treasury SPUS, 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 Agent, and the 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 SPUS or Treasury SPUS, as the case may be, and be entitled to the same
benefits and subject to the same obligations, under this Agreement as the
Corporate SPUS or Treasury SPUS, 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 Agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Agent duly executed, by the Holder thereof or its attorney duly
authorized in writing.
21
No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Company and the Agent may require payment
from the Holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates, other than any exchanges pursuant to Sections 3.10 and
8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder and deliver any 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 Agent shall:
(i) 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 Securities evidenced by such other
Certificate; or
(ii) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Shares 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
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 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:
(a) the provisions of this Section 3.6 shall be in full force and
effect;
(b) the Company shall be entitled to deal with the Clearing Agency for
all purposes of this Agreement (including making Contract Adjustment Payments,
if any, and receiving approvals, votes or consents hereunder) as the Holder of
the Securities and
22
the sole holder of the Global Certificate(s) and shall have no obligation to the
Beneficial Owners;
(c) 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
(d) the rights of the Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by law and
agreements between such Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants.
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 Securities
registered in the name of a Clearing Agency or the nominee of a Clearing Agency,
the Company or the Company's agent shall, except as specified herein, have no
obligations to the Beneficial Owners.
SECTION 3.8 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Securities, the Company may, in its sole
discretion, appoint a successor Clearing Agency with respect to the Securities.
SECTION 3.9 Definitive Certificates.
If:
(i) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities and a successor
Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 3.8; or
(ii) there shall have occurred and be continuing a default by the
Company in respect of its obligations under one or more Purchase
Contracts,
then upon surrender of the Global Certificates representing the Securities by
the Clearing Agency, accompanied by registration instructions, the Company shall
cause definitive Certificates to be delivered to Beneficial Owners in accordance
with the instructions of the Clearing Agency. The Company 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.
23
SECTION 3.10 Mutilated,Destroyed, Lost and Stolen Certificates.
(a) If any mutilated Certificate is surrendered to the Agent, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
a new Certificate, evidencing the same number of Corporate SPUS or Treasury
SPUS, as the case may be, and bearing a Certificate number not contemporaneously
outstanding.
(b) If there shall be delivered to the Company and the 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 the Agent that such Certificate has been acquired by a
bona fide purchaser, the Company shall execute and deliver to the Agent, and the
Agent shall authenticate, execute on behalf of the Holder, and deliver to the
Holder, in lieu of any such destroyed, lost or stolen Certificate, a new
Certificate, evidencing the same number of Corporate SPUS or Treasury SPUS, as
the case may be, and bearing a Certificate number not contemporaneously
outstanding.
(c) Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder, and deliver to the
Holder, a 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 Agent shall:
(i) 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 Securities evidenced by such
Certificate; or
(ii) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Shares 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.
(d) Upon the issuance of any new Certificate under this Section, the
Company and the Agent may require the payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Agent)
connected therewith.
24
(e) 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 Security evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Securities 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.
(f) 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 Agent, and any agent of the Company or the Agent, may treat the
Person in whose name such Certificate is registered as the owner of the
Corporate SPUS or Treasury SPUS evidenced thereby, for the purpose of receiving
dividend payments on the Shares, receiving payments of Contract Adjustment
Payments, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any dividend payments on the Shares, or Contract
Adjustment Payments payable in respect of the Purchase Contracts constituting a
part of the Corporate SPUS or Treasury SPUS evidenced thereby shall be overdue
and notwithstanding any notice to the contrary, and neither the Company nor the
Agent, nor any agent of the Company or the Agent, shall be affected by notice to
the contrary.
Notwithstanding the foregoing, with respect to any Global Certificate,
nothing contained herein shall prevent the Company, the Agent or any agent of
the Company or the Agent, from giving effect to any written certification, proxy
or other authorization furnished by any Clearing Agency (or its nominee), as a
Holder, with respect to such Global Certificate or impair, as between such
Clearing Agency and owners of beneficial interests in such Global Certificate,
the operation of customary practices governing the exercise of rights of such
Clearing Agency (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 Shares or
Treasury Securities, as the case may be, after the occurrence of a Termination
Event or pursuant to an Early Settlement, or upon the registration of a transfer
or exchange of a Security, or a Collateral Substitution or the reestablishment
of Corporate SPUS shall, if surrendered to any Person other than the Agent, be
delivered to the Agent and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Agent for
cancellation any Certificates previously authenticated, executed and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Certificates so
25
delivered shall, upon Issuer Order, be promptly cancelled by the 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 Agent shall be destroyed by the Agent unless otherwise
directed by Issuer Order.
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 Agent
cancelled or for cancellation.
SECTION 3.13 Substitution of Securities.
A Holder may separate the Shares from the related Purchase Contracts in
respect of a Corporate SPUS by substituting for such Shares, as applicable,
Treasury Securities in an aggregate principal amount equal to the aggregate
principal amount of such Shares (a "Collateral Substitution"), at any time from
and after the date of this Agreement and on or prior to the seventh Business Day
immediately preceding the Purchase Contract Settlement Date:
(a) depositing with the Securities Intermediary Treasury Securities
or securities entitlements thereto having an aggregate principal amount equal to
the aggregate liquidation preference of the Shares comprising part of such
Corporate SPUS; and
(b) transferring the related Corporate SPUS to the Agent accompanied
by a notice to the Agent, substantially in the form of Exhibit C hereto, (i)
stating that the Holder has transferred the relevant amount of Treasury
Securities to the Securities Intermediary and (ii) requesting that the Agent
instruct the Collateral Agent to release the Shares underlying such Corporate
SPUS, whereupon the Agent shall promptly give such instruction to the Collateral
Agent, substantially in the form of Exhibit A to the Pledge Agreement.
Upon receipt of the Treasury Securities described in clause (a) above and the
instruction described in clause (b) above, in accordance with the terms of the
Pledge Agreement, the Collateral Agent will cause the Securities Intermediary to
release from the Pledge to the Agent, on behalf of the Holder, Shares having a
corresponding aggregate principal amount, free and clear of the Company's
security interest therein, and upon receipt thereof, the Agent shall promptly:
(i) cancel the related Corporate SPUS;
(ii) transfer the Shares to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver
a Treasury SPUS 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 SPUS.
26
Holders who elect to separate the Shares from the related Purchase Contract
and to substitute Treasury Securities for such Shares 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.
Holders may make Collateral Substitutions only in integral multiples of 20
Corporate SPUS if Treasury Securities are being substituted for Shares.
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 SPUS or
fails to deliver Corporate SPUS Certificates to the Agent after depositing
Treasury Securities with the Collateral Agent, the Shares constituting a part of
such Corporate SPUS, any dividends on such Shares shall be held in the name of
the Agent or its nominee in trust for the benefit of such Holder, until such
Corporate SPUS are so transferred or the Corporate SPUS Certificate is so
delivered, as the case may be, or, with respect to a Corporate SPUS Certificate,
such Holder provides evidence satisfactory to the Company and the Agent that
such Corporate SPUS Certificate has been destroyed, lost or stolen, together
with any indemnity that may be required by the Agent and the Company.
Except as described in this Section 3.13, for so long as the Purchase
Contract underlying a Corporate SPUS remains in effect, such Corporate SPUS
shall not be separable into its constituent parts, and the rights and
obligations of the Holder in respect of the Shares and the Purchase Contract
comprising such Corporate SPUS may be acquired, and may be transferred and
exchanged, only as a Corporate SPUS.
Section 3.14 Reestablishment of Corporate SPUS.
A Holder of Treasury SPUS may recreate Corporate SPUS at any time, on or
prior to the seventh Business Day immediately preceding the Purchase Contract
Settlement Date, by:
(a) depositing with the Securities Intermediary Shares or security
entitlements thereto having an aggregate liquidation preference equal to the
aggregate principal amount at maturity of the Treasury Securities comprising
part of the Treasury SPUS; and
(b) transferring the related Treasury SPUS to the Agent accompanied
by a notice to the Agent, substantially in the form of Exhibit C hereto, (i)
stating that the Holder has transferred the relevant amount of Shares to the
Securities Intermediary and (ii) requesting that the Agent instruct the
Collateral Agent to release the Treasury Securities underlying such Treasury
SPUS, whereupon the Agent shall promptly give such instruction to the Collateral
Agent, substantially in the form of Exhibit C to the Pledge Agreement.
Upon receipt of the Shares described in clause (a) above and the instruction
described in clause (b) above, in accordance with the terms of the Pledge
Agreement, the Collateral
27
Agent will cause the Securities Intermediary to effect the release of the
Treasury Securities having a corresponding aggregate principal amount at
maturity from the Pledge, to the Agent free and clear of the Company's security
interest therein, and upon receipt thereof, the Agent shall promptly:
(i) cancel the related Treasury SPUS;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver
a Corporate SPUS 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 SPUS.
Holders who elect to recreate Corporate SPUS 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.
Holders of Treasury SPUS may reestablish Corporate SPUS in integral
multiples of 20 Treasury SPUS for 20 Corporate SPUS.
Except as provided in this Section 3.14, for so long as the Purchase
Contract underlying a Treasury SPUS remains in effect, such Treasury SPUS Unit
shall not be separable into its constituent parts and the rights and obligations
of the Holder of such Treasury SPUS in respect of the 1/20 of a Treasury
Security and the Purchase Contract comprising such Treasury SPUS may be
acquired, and may be transferred and exchanged, only as a Treasury SPUS.
Section 3.15 Transfer of Collateral upon Occurrence of Termination Event.
Upon the occurrence of a Termination Event and the transfer to the Agent of
the Shares or the Treasury Securities underlying the Corporate SPUS and the
Treasury SPUS, as the case may be, pursuant to the terms of the Pledge
Agreement, the Agent shall request transfer instructions with respect to such
Shares from each Holder by written request, substantially in the form of Exhibit
D hereto, mailed to such Holder at its address as it appears in the Corporate
SPUS Register or the Treasury SPUS Register, as the case may be.
Upon book-entry transfer of the Corporate SPUS or the Treasury SPUS or
delivery of a Corporate SPUS Certificate or Treasury SPUS Certificate to the
Agent with such transfer instructions, the Agent shall transfer the Shares
underlying such Corporate SPUS or Treasury SPUS, 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 SPUS or Treasury SPUS
fails to effect such transfer or delivery, the Shares or Treasury Securities, as
the case may be, underlying such Corporate SPUS or Treasury SPUS, as the case
may be, and any dividends or interest thereon, shall be held in the
28
name of the Agent or its nominee in trust for the benefit of such Holder, until
the earlier of:
(a) such Corporate SPUS or Treasury SPUS are transferred or the
Corporate SPUS Certificate or Treasury SPUS Certificate is surrendered or such
Holder provides satisfactory evidence that such Corporate SPUS Certificate or
Treasury SPUS Certificate has been destroyed, lost or stolen, together with any
indemnity that may be required by the Agent and the Company; and
(b) 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 Security, by acceptance thereof, shall be deemed expressly
to have withheld any consent to the assumption under Section 365 of the
Bankruptcy Code or otherwise, of the Purchase Contract by the Company or its
trustee, 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 SHARES
Section 4.1 Payment of Dividends; Rights to Dividends Preserved; Dividend Rate
Reset.
Dividends on any Share which are paid on any Payment Date shall, subject to
receipt thereof by the Agent from the Collateral Agent as provided by the terms
of the Pledge Agreement, be paid to the Person in whose name the Corporate SPUS
Certificate (or one or more Predecessor Corporate SPUS Certificates) of which
such Share is a part is registered at the close of business on the Record Date
for such Payment Date.
Each Corporate SPUS Certificate evidencing Shares delivered under this
Agreement upon registration of transfer of or in exchange for or in lieu of any
other Corporate SPUS Certificate shall carry the rights to accrued and unpaid
dividends, and to accrue dividends, which were carried by the Shares underlying
such other Corporate SPUS Certificate.
In the case of any Corporate SPUS with respect to which Cash Settlement of
the underlying Purchase Contract is effected on or prior to the fifth Business
Day immediately preceding the Purchase Contract Settlement Date pursuant to
prior notice, or with respect to which Early Settlement of the underlying
Purchase Contract is effected on an Early Settlement Date, or with respect to
which 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
29
Payment Date, dividends on the Shares underlying such Corporate SPUS otherwise
payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Cash Settlement or Early Settlement or Collateral
Substitution, and such dividends shall, subject to receipt thereof by the Agent,
be payable to the Person in whose name the Corporate SPUS Certificate (or one or
more Predecessor Corporate SPUS Certificates) was registered at the close of
business on the Record Date.
Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Corporate SPUS with respect to which Cash
Settlement or Early Settlement of the underlying Purchase Contract is effected
on or prior to the fifth Business Day immediately preceding the Purchase
Contract Settlement Date or an Early Settlement Date, as the case may be, or
with respect to which a Collateral Substitution has been effected, dividends on
the related Shares that would otherwise be payable after the Purchase Contract
Settlement Date or Early Settlement Date shall not be payable hereunder to the
Holder of such Corporate SPUS; provided, however, that to the extent that such
Holder continues to hold the separated Shares that formerly comprised a part of
such Holder's Corporate SPUS, such Holder shall be entitled to receive the
dividends on such separated Shares pursuant to their terms.
The applicable dividend rate borne by the Shares on and after the Purchase
Contract Settlement Date shall be established pursuant to the Remarketing on the
third Business Day immediately preceding the Purchase Contract Settlement Date
to equal to the Reset Rate (such Reset Rate to be in effect on and after the
Purchase Contract Settlement Date).
Section 4.2 Notice and Voting.
Under the terms of the Pledge Agreement, the Agent will be entitled to
exercise the voting and any other consensual rights pertaining to the Pledged
Shares, 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 Shares are
entitled to vote or upon any solicitation of consents, waivers or proxies of
holders of Shares, the Agent shall, as soon as practicable thereafter, mail to
the Holders of Corporate SPUS a notice:
(a) containing such information as is contained in the notice or
solicitation;
(b) stating that each Holder on the record date set by the Agent
therefor (which, to the extent possible, shall be the same date as the record
date for determining the holders of Shares entitled to vote) shall be entitled
to instruct the Agent as to the exercise of the voting rights pertaining to such
Shares underlying their Corporate SPUS; and
(c) stating the manner in which such instructions may be given.
Upon the written request of the Holders of Corporate SPUS on such record date
received by the Agent at least six days prior to such meeting, the Agent shall
endeavor insofar as
30
practicable to vote or cause to be voted, in accordance with the instructions
specified in such requests, the maximum liquidation preference of Shares, as to
which any particular voting instructions are received. In the absence of
specific instructions from the Holder of a Corporate SPUS, the Agent shall
abstain from voting the Shares underlying such Corporate SPUS. The Company
hereby agrees, if applicable, to solicit Holders of Corporate SPUS to timely
instruct the Agent in order to enable the Agent to vote such Shares.
ARTICLE V
THE PURCHASE CONTRACTS
Section 5.1 Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless an Early Settlement has occurred in
accordance with Section 5.9 hereof, obligate the Holder of the related Security
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 unless, on or prior
to the Purchase Contract Settlement Date, there shall have occurred a
Termination Event with respect to the Security of which such Purchase Contract
is a part. The "Settlement Rate" is equal to:
(a) if the Applicable Market Value (as defined below) is equal to or
greater than $___________ (the "Threshold Appreciation Price"), _____ shares of
Common Stock per Purchase Contract;
(b) if the Applicable Market Value is less than the Threshold
Appreciation Price but greater than $__________ (the "Reference Price"), the
number of shares of Common Stock equal to the Stated Amount divided by the
Applicable Market Value; and
(c) if the Applicable Market Value is less than or equal to the
$___________, ___________ shares of Common Stock per Purchase Contract, in each
case subject to adjustment as provided in Section 5.6 (and in each case rounded
upward or downward to the nearest 1/10,000th of a share). As provided in Section
5.10, no fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 Trading Days ending on the third Trading
Day immediately preceding the Purchase Contract Settlement Date.
The "Closing Price" per share of Common Stock on any date of determination
means:
31
(i) The closing sale price (or, if no closing price is
reported, the last reported sale price) per share on the New York
Stock Exchange, Inc. (the "NYSE") on such date;
(ii) if the Common Stock is not listed for trading on the NYSE
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;
(iii) 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 NYSE;
(iv) if the Common Stock is not so reported, the last quoted bid
price for the Common Stock in the over-the-counter market as reported
by the National Quotation Bureau or similar organization; or
(v) if such bid price is not available, the average of the mid-
point of the last bid and ask prices 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 over-the-
counter market that is the primary market for the trading of the Common Stock.
Each Holder of a Corporate SPUS or a Treasury SPUS, by its acceptance
thereof: irrevocably authorizes the 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); 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 hereof; irrevocably authorizes
the Agent to enter into and perform this Agreement and the Pledge Agreement on
its behalf as its attorney-in-fact; and consents to, and agrees to be bound by,
the Pledge of the Shares or the Treasury Securities pursuant to the Pledge
Agreement, provided that upon a Termination Event, the rights of the Holder of
--------
such Security under the Purchase Contract may be enforced without regard to any
other rights or obligations. Each Holder of a Corporate SPUS or a Treasury SPUS,
by its acceptance thereof, further covenants and agrees, that to the extent and
in the manner provided in Section 5.4 and the Pledge Agreement, but subject to
the terms thereof, Proceeds from the remarketing of the Shares or the Proceeds
of the Treasury Securities on the Purchase Contract Settlement Date, shall be
paid by the Collateral Agent to the Company in satisfaction of such Holder's
obligations under such Purchase Contract and such Holder shall acquire no right,
title or interest in such payments.
32
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 underlying such
Certificate, the Declaration and the Pledge Agreement and the transferor shall
be released from the obligations under this Agreement, the Purchase Contracts
underlying the Certificate 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 Contract Adjustment Payments.
The Company shall pay, on each Payment Date, the 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. The
Contract Adjustment Payments will be payable at the office of the Agent in New
York City maintained for that purpose or, at the option of the Company, by check
mailed to the address of the Person entitled thereto at such Person's address as
it appears on the Corporate SPUS Register or Treasury SPUS Register.
Upon the occurrence of a Termination Event, the Company's obligation to pay
Contract Adjustment Payments (including any accrued 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 reestablishment of Corporate SPUS) any other
Certificate shall carry the rights to Contract Adjustment Payments accrued and
unpaid, and the right to accrue Contract Adjustment Payments, which were carried
by the Purchase Contracts underlying such other Certificates.
Subject to Section 5.9, in the case of any Security with respect to which
Early Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date that is after any Record Date and on or prior to the next
succeeding Payment Date, Contract Adjustment Payments otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Early
Settlement, and such Contract Adjustment Payments shall be paid to the Person in
whose name the Certificate evidencing such Security (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 Security with respect to which Early Settlement of the underlying
Purchase Contract is effected on an Early Settlement Date, Contract Adjustment
Payments, if any, that would otherwise be payable after the Early Settlement
Date with respect to such Purchase Contract shall not be payable.
Section 5.3 [Intentionally Omitted].
33
Section 5.4 Payment of Purchase Price.
(a) (i) Unless a Holder of a Corporate SPUS settles the
underlying Purchase Contract Contract through the early delivery
of cash to the Purchase Contract Agent in the manner described in
Section 5.9, each Holder of a Corporate SPUS who intends to pay
in cash to satisfy such Holder's obligations under the Purchase
Contract shall notify the Agent by use of a notice in
substantially the form of Exhibit E hereto of its intention to
pay in cash (the "Cash Settlement") the Purchase Price for the
shares of Common Stock to be purchased pursuant to a Purchase
Contract. Such notice shall be given prior to 5:00 p.m. (New York
City time) on the seventh 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 Agent shall
notify the Collateral Agent of the receipt of such notices from
Holders intending to make a Cash Settlement.
(ii) A Holder of a Corporate SPUS who has so notified the
Agent of its intention to effect 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. 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 Agent when
received for payment to the Holder of the related Corporate SPUS
on the Purchase Contract Settlement Date.
(iii) If a Holder of a Corporate SPUS fails to notify the
Agent of its intention to make a Cash Settlement in accordance
with paragraph (a)(i) above, or does notify the 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 to the disposition of the Pledged Shares pursuant to
the remarketing as described in paragraph (b) below.
(iv) Not later than 15 calendar days nor more than 30
calendar days prior to the third Business Day immediately
preceding the Purchase Contract Settlement Date, the Company
shall request DTC (or any
34
successor Clearing Agency), to notify the Beneficial Owners or
Clearing Agency Participants holding Corporate SPUS or Treasury
SPUS of the procedures to be followed by Holders of Corporate
SPUS who intend to effect the settlement of their obligations
under the Purchase Contracts underlying such Corporate SPUS with
separate cash on or prior to the fifth Business Day prior to the
Purchase Contract Settlement Date.
(v) Promptly after 11:00 a.m., New York City time, on the
fifth Business Day preceding the Purchase Contract Settlement
Date, the Agent, based on notices received by the Agent pursuant
to Section 5.4(a)(i) hereof and notice from the Securities
Intermediary regardin cash received by it prior to such time,
shall notify the Collateral Agent of the liquidation preference
of Shares to be tendered for purchase in the Remarketing in a
notice substantially in the form of Exhibit F hereto.
(b) in order to dispose of the Shares, Corporate SPUS Holders
who have not notified the Agent of their intention to effect a Cash Settlement
as provided in paragraph (a)(i) above, or who have so notified the Agent but
fail to make such payment as required by paragraph (a)(ii) above, the Company
shall engage ___________________ (the "Remarketing Agent") pursuant to the
Remarketing Agreement to sell such Shares. In order to facilitate the
remarketing, the Agent, based on the notices specified in Section 5.4(a)(v),
shall notify the Remarketing Agent, promptly after 11:00 a.m. (New York City
time) on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, of the aggregate principal amount of Shares that are a
component of Corporate SPUS to be remarketed. Concurrently, the Collateral
Agent, pursuant to the terms of the Pledge Agreement, shall cause such Shares to
be presented to the Remarketing Agent for Remarketing. Upon receipt of such
notice from the Agent and such Shares, the Remarketing Agent shall, on the third
Business Day immediately preceding the Purchase Contract Settlement Date, use
commercially reasonable efforts to remarket such Shares on such date at a price
of [100.50%] of the aggregate principal amount at maturity of such Shares. The
proceeds equal to 100% of the aggregate principal amount at maturity of the
remarketed Shares shall automatically be applied by the Collateral Agent, in
accordance with the Pledge Agreement, to satisfy in full such Corporate SPUS
Holders' obligations to pay the Purchase Price for the shares of Common Stock
under the related Purchase Contracts on the Purchase Contract Settlement Date.
The proceeds equal to [.50%] of the aggregate principal amount at maturity of
the remarketed Shares shall automatically be applied, in accordance with the
Pledge Agreement, to pay the remarketing fee of the Remarketing Agent. Corporate
SPUS Holders whose Shares are so remarketed shall not be responsible for the
payment of any remarketing fee in connection therewith. If, in spite of using
their reasonable efforts, the Remarketing Agent cannot remarket the related
Shares of such Holders of Corporate SPUS at a price of [100.50%] of the
aggregate principal amount at maturity of such Shares, the remarketing shall be
deemed to have failed (a "Failed Remarketing") and in accordance with the terms
of the Pledge Agreement, the Collateral Agent, for the benefit of the Company,
shall be entitled to exercise its rights as a secured party with respect to such
Shares, including those actions specified in paragraph (c) below; provided, that
if upon a Failed Remarketing the
35
Collateral Agent exercises such rights for the benefit of the Company with
respect to such Shares, any accrued and unpaid dividends on such Shares shall
become payable by the Company to the Agent for payment to the Beneficial Owner
of the Corporate SPUS to which such Shares relate. The Company shall cause a
notice of such Failed Remarketing to be published no later than the Business Day
immediately preceding the Purchase Contract Settlement Date in a daily newspaper
in the English language of general circulation in New York City, which is
expected to be The Wall Street Journal.
(c) With respect to any Shares which are subject to a Failed
Remarketing, the Collateral Agent for the benefit of the Company reserves all of
its rights as a secured party with respect thereto and, subject to applicable
law and paragraph (g) below, may, among other things, (i) retain the Shares in
full satisfaction of the Holders' obligations under the Purchase Contracts or
(ii) sell the Shares in one or more public or private sales.
(d) (i) Unless a Holder of a Treasury SPUS settles the underlying
Purchase Contract through the early delivery of cash to the Agent in
the manner described in Section 5.9, each Holder of a Treasury SPUS
who intends to pay in cash shall notify the Agent by use of a notice
in substantially the form of Exhibit E hereto of its intention to pay
in cash the Purchase Price for the shares of Common Stock to be
purchased pursuant to the related Purchase Contract. Such notice shall
be given on or prior to 5:00 p.m. (New York City time) on the second
Business Day immediately preceding the Purchase Contract Settlement
Date.
(ii) A Holder of a Treasury SPUS who has so notified the Agent
of its intention to make a Cash Settlement in accordance with
paragraph (d)(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. 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 Agent when received for payment to the Holder.
(iii) If a Holder of a Treasury SPUS fails to notify the Agent of
its intention to make a Cash Settlement in accordance with paragraph
(d)(i) above, or does notify the Agent as provided in paragraph (d)(i)
above of its intention to pay the Purchase Price in cash, but fails to
make
36
such payment as required by paragraph (d)(ii) above, then upon the
maturity of the Pledged Treasury Securities held by the Securities
Intermediary on the Business Day immediately preceding the Purchase
Contract Settlement Date, 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. 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
Agent for the benefit of the Holder of the related Treasury SPUS when
received.
(e) Any distribution to Holders of excess funds and interest
described above shall be payable at the office of the Agent in New York City
maintained for that purpose or, at the option of the Holder, by check mailed to
the address of the Person entitled thereto at such address as it appears on the
Register.
(f) Upon Cash Settlement of any Purchase Contract:
(i) the Collateral Agent will in accordance with the terms of
the Pledge Agreement cause the Pledged Shares or the Pledged Treasury
Securities, as the case may be, underlying the relevant Security to be
released from the Pledge, free and clear of any security interest of
the Company, and transferred to the Agent for delivery to the Holder
thereof or its designee as soon as practicable; and
(ii) subject to the receipt thereof, the Agent shall, by book-
entry transfer or other appropriate procedures, in accordance with
written instructions provided by the Holder thereof, transfer such
Shares or such Treasury Securities, as the case may be (or, if no such
instructions are given to the Agent by the Holder, the Agent shall
hold such Shares or such Treasury Securities, as the case may be, and
any dividends or interest thereon, as the case may be, in the name of
the 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).
(g) The obligations of the Holders to pay the Purchase Price are non-
recourse obligations and, except to the extent satisfied by Early Settlement or
Cash Settlement, are payable solely out of the proceeds of any Collateral
pledged to secure the obligations of the Holders and in no event will Holders be
liable for any deficiency between the proceeds of the disposition of Collateral
and the Purchase Price.
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Section 5.5 Issuance of Shares of Common Stock.
Unless a Termination Event or an Early Settlement shall have occurred,
subject to Section 5.6(b), on the Purchase Contract Settlement Date upon receipt
of the aggregate Purchase Price payable on all Outstanding Securities, Contract
the Company shall issue and deposit with the Agent, for the benefit of the
Holders of the Outstanding Securities, one or more certificates representing the
newly issued shares of Common Stock registered in the name of the Agent (or its
nominee) as custodian for the Holders (such certificates for shares of Common
Stock, together with any dividends or distributions for which a record date and
payment date for such dividend or distribution has occurred after the Purchase
Contract Settlement Date, being hereinafter referred to as the "Purchase
Contract Settlement Fund") to which the Holders are entitled hereunder.
Subject to the foregoing, upon surrender of a Certificate to the Agent on
or after the Purchase Contract Settlement Date, together with settlement
instructions thereon duly completed and executed, the Holder of such Certificate
shall be entitled to receive forthwith in exchange therefor a certificate
representing that number of whole shares of Common Stock which such Holder is
entitled to receive pursuant to the provisions of this Article Five (after
taking into account all Securities then held by such Holder), together with cash
in lieu of fractional shares as provided in Section 5.10 and any dividends or
distributions with respect to such Shares constituting part of the Purchase
Contract Settlement Fund, but without any interest thereon, and the Certificate
so surrendered shall forthwith be cancelled. Such shares shall be registered in
the name of the Holder or the Holder's designee as specified in the settlement
instructions provided by the Holder to the 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 5.6 Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(i) In case the Company shall pay or make a dividend or other
distribution on Common Stock in Common Stock, the Settlement Rate in
effect at the opening of business on the 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:
(1) 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
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(2) 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 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.
(ii) In case the Company shall issue rights, warrants or options
to all holders of its Common Stock (not being available on an
equivalent basis to Holders of the Securities upon settlement of the
Purchase Contracts underlying such Securities) entitling them, for a
period expiring within 45 days after the record date for the
determination of shareholders entitled to receive such rights,
warrants or options, 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, warrants or options
(other than pursuant to a dividend reinvestment plan), the Settlement
Rate in effect at the opening of business on the day following the
date fixed for such determination shall be increased by dividing such
Settlement Rate by a fraction of which:
(1) 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
(2) 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 include any shares issuable in
respect of any scrip certificates issued in lieu of fractions of
shares of Common Stock.
39
(iii) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common Stock,
the Settlement Rate in effect at the opening of business on the day
following the day upon which such subdivision 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 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.
(iv) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness or assets (including securities, but excluding any
rights, warrants or options referred to in paragraph (2) of this
Section 5.6(a), any dividend or distribution paid exclusively in cash
and any dividend or distribution referred to in paragraph (1) of this
Section 5.6(a)), the Settlement Rate shall be adjusted so that the
same shall equal the rate determined by dividing the Settlement Rate
in effect immediately prior to the close of business on the date fixed
for the determination of shareholders entitled to receive such
distribution by a fraction of which:
(1) 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
(2) 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
5.6(a) shall not be applicable.
(v) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock (I) cash (excluding any
cash that is distributed in a Reorganization Event to which Section
5.6(b) applies or as part of a distribution referred to in paragraph
(iv) of this Section) in an aggregate amount that, combined together
with the aggregate amount of any other distributions to all holders of
its Common
40
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 (v) or paragraph (vi) of this Section has
been made and (II) the aggregate of any cash plus the fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) of
consideration payable in respect of any tender or exchange offer by
the Company or any of its subsidiaries for all or any portion of the
Common Stock concluded within the 12 months preceding the date of
payment of 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 has been made, exceeds
[15%] of the product of the Current Market Price per share of the
Common Stock on the date for the determination of holders of shares of
Common Stock entitled to receive such distribution times the number of
shares of Common Stock outstanding on such date, then, and in each
such case, immediately after the close of business on such date for
determination, the Settlement Rate shall be increased so that the same
shall equal the rate determined by dividing the Settlement Rate in
effect immediately prior to the close of business on the date fixed
for determination of the shareholders entitled to receive such
distribution by a fraction (i) the numerator of which shall be equal
to the Current Market Price per share of the Common Stock on the date
fixed for such determination less an amount equal to the quotient of
(x) the 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 of which shall be equal to the Current Market
Price per share of the Common Stock on such date for determination.
(vi) In case a tender or exchange offer made by the Company or
any subsidiary of the Company for all or any portion of the Common
Stock shall expire and such tender or exchange offer (as amended upon
the expiration thereof) shall require the payment to 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
41
paragraph (5) of this Section or this paragraph (6) has been made and
(II) the aggregate amount of any distributions to all holders of the
Company's Common Stock made exclusively in cash within 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 or this paragraph (6) has been made, exceeds [15%] of the
product of the Current Market Price per share of the Common Stock as
of the last time (the "Expiration Time") tenders could have been made
pursuant to such tender or exchange offer (as it may be amended) times
the number of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time, then, and in each such case,
immediately prior to the opening of business on the day after the date
of the Expiration Time, the Settlement Rate shall be adjusted so that
the same shall equal the rate determined by dividing the Settlement
Rate immediately prior to the close of business on the date of the
Expiration Time by a fraction (i) the numerator of which shall be
equal to (A) the product of (1) the Current Market Price per share of
the 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 of which shall
be equal to the product of (A) the Current Market Price per share of
the Common Stock as of the Expiration Time and (B) the number of
shares of Common Stock outstanding (including any tendered shares) as
of the Expiration Time less the number of all shares validly tendered
and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "Purchased
Shares").
(vii) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any
reclassification upon a Reorganization Event to which Section 5.6(b)
applies) shall be deemed to involve:
(1) 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); and
(2) 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
42
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).
(viii) 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 Common
Stock trades regular way on such exchange or in such market without
the right to receive such issuance or distribution.
(ix) All adjustments to the Settlement Rate shall be calculated
to the nearest 1/10,000th of a share of Common Stock (or if there is
not a nearest 1/10,000th of a share, to the next lower 1/10,000th of a
share). No adjustment in the Settlement Rate shall be required unless
such adjustment would require an increase or decrease of at least one
percent 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 pursuant to paragraph
(1), (2), (3), (4), (5), (6), (7) or (10) of this Section 5.6(a), an
adjustment shall also be made to the Applicable Market Value solely to
determine which of clauses (a), (b) or (c) of the definition of
Settlement Rate in Section 5.1 will apply on the Purchase Contract
Settlement Date. Such adjustment shall be made by multiplying the
Applicable Market Value by a fraction of which the numerator shall be
the Settlement Rate immediately after such adjustment pursuant to
paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section
5.6(a) and the denominator shall be the Settlement Rate immediately
prior to such adjustment; provided, however, that if such adjustment
to the Settlement Rate 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 5.6(a) during the period
taken into consideration for determining the Applicable Market Value,
appropriate and customary adjustments shall be made to the Settlement
Rate.
(x) The Company may make such increases in the Settlement
Rate, in addition to those required by this Section, as it considers
to be advisable in order to avoid or diminish any income tax to any
holders of shares of Common Stock resulting from any dividend or
distribution of stock or issuance of rights or warrants to purchase or
subscribe for stock
43
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);
(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 will be adjusted to provide that each Holder of Securities
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 its 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
44
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 or dissolution of the Company, the
Company or a liquidating trust created in connection therewith, shall execute
and deliver to the Agent an agreement supplemental hereto providing that the
Holders of each Outstanding Security shall have the rights provided by this
Section 5.6(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.
Section 5.7 Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided,
the Company shall:
(i) forthwith compute the adjusted Settlement Rate in accordance
with Section 5.6 and prepare and transmit to the Agent an Officers'
Certificate setting forth the Settlement Rate, the method of
calculation thereof in reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an event
that requires an adjustment to the Settlement Rate pursuant to Section
5.6 (or if the Company is not aware of such occurrence, as soon as
practicable after becoming so aware), provide a written notice to the
Holders of the Securities of the occurrence of such event and a
statement in reasonable detail setting forth the method by which the
adjustment to the Settlement Rate was determined and setting forth the
adjusted Settlement Rate.
(b) The Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts exist
which may require any adjustment of the Settlement Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed in making the same. The Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at the time
be issued or delivered with respect to any Purchase Contract; and the Agent
makes no representation with respect thereto. The Agent shall not be responsible
for any failure of the Company to issue, transfer or deliver any shares of
Common Stock pursuant to a Purchase Contract or to comply with any of the
duties, responsibilities or covenants of the Company contained in this Article.
45
Section 5.8 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 obligation of the Company to pay any Contract Adjustment
Payments (including any deferred or accrued and unpaid Contract Adjustment
Payments), if the Company shall have such obligation, and the rights and
obligations of Holders to purchase Common Stock, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Agent or the Company, if, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred.
Upon and after the occurrence of a Termination Event, the Securities shall
thereafter represent the right to receive the Shares forming a part of such
Securities in the case of Corporate SPUS, or Treasury Securities in the case of
Treasury SPUS, 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 Agent, the Collateral Agent and the Holders, at their addresses as
they appear in the Register.
Section 5.9 Early Settlement.
(a) Subject to and upon compliance with the provisions of this
Section 5.9, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early (an "Early Settlement") in the case of Corporate
SPUS on or prior to the seventh Business Day immediately preceding the Purchase
Contract Settlement Date and in the case of Treasury SPUS on or prior to the
second Business Day immediately preceding the Purchase Contract Settlement Date,
in each case, as provided herein. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts, the Holder of the Certificate
evidencing Securities shall deliver such Certificate to the Agent at the
Corporate Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early on the reverse thereof duly completed
and accompanied by payment (payable to the Company in immediately available
funds) in an amount (the "Early Settlement Amount") equal to:
(i) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement, plus
(ii) if such delivery is made with respect to any Purchase
Contracts during the period from the close of business on any Record
Date next preceding any Payment Date to the opening of business on
such Payment Date, an amount equal to the sum of (x) the Contract
Adjustment Payments payable on such Payment Date with respect to such
Purchase Contracts plus (y) in the case of a Corporate SPUS
Certificate, the distributions on the related Shares payable on such
Payment Date.
46
Except as provided in the immediately preceding sentence and subject to the last
paragraph of Section 5.2, no payment or adjustment shall be made upon Early
Settlement of any Purchase Contract on account of any 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 underlying any Securities
prior to or at 5:00 p.m. (New York City time) on a Business Day, such day shall
be the "Early Settlement Date" with respect to such Securities and if such
requirements are first satisfied after 5:00 p.m. (New York City time) on a
Business Day or on a day that is not a Business Day, the "Early Settlement Date"
with respect to such Securities shall be the next succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Company shall issue, and the Holder shall be entitled to
receive _______ shares of Common Stock on account of each Purchase Contract as
to which Early Settlement is effected (the "Early Settlement Rate"). The Early
Settlement Rate shall be adjusted in the same manner and at the same time as the
Settlement Rate is adjusted.
(c) No later than the third Business Day after the applicable Early
Settlement Date, the Company shall cause:
(i) the shares of Common Stock issuable upon Early Settlement of
Purchase Contracts to be issued and delivered, together with payment
in lieu of any fraction of a share, as provided in Section 5.11; and
(ii) the related Shares in the case of Corporate SPUS, or the
related Treasury Securities in the case of Treasury SPUS, to be
released from the Pledge by the Collateral Agent and transferred, in
each case, to the Agent for delivery to the Holder thereof or its
designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of shares of Common Stock from the Company and the Shares or Treasury
Securities, as the case may be, from the Securities Intermediary, as applicable,
the Agent shall, in accordance with the instructions provided by the Holder
thereof on the applicable form of Election to Settle Early on the reverse of the
Certificate evidencing the related Securities:
(i) transfer to the Holder the Shares or Treasury Securities, as
the case may be, forming a part of such Securities; and
(ii) deliver to the Holder a certificate or certificates for the
full number of shares of Common Stock issuable upon such Early
Settlement, together with payment in lieu of any fraction of a share,
as provided in Section 5.10.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities evidenced by a
Certificate,
47
upon such Early Settlement the Company shall execute and the Agent shall
authenticate, countersign and deliver to the Holder thereof, at the expense of
the Company, a Certificate evidencing the Securities as to which Early
Settlement was not effected.
Section 5.10 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 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, the Company, through
the Agent, shall make a cash payment in respect of such fractional interest in
an amount equal to the value of such fractional shares times the Applicable
Market Value. The Company shall provide the Agent from time to time with
sufficient funds to permit the Agent to make all cash payments required by this
Section 5.10 in a timely manner.
Section 5.11 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 Security 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 Securities evidenced thereby, other
than in the name of the Agent, as custodian for such Holder, and the Company
shall not be required to issue or deliver such share certificates or
Certificates unless or until the Person or Persons requesting the transfer or
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
ARTICLE VI
REMEDIES
Section 6.1 Unconditional Right of Holders to Receive Contract Adjustment
Payments and to Purchase Shares of Common Stock.
In the event that Contract Adjustment Payments shall constitute a component
of Corporate SPUS or Treasury SPUS, the Holder of any Corporate SPUS or Treasury
SPUS shall have the right, which is absolute and unconditional (subject to the
payment by a holder of Contract Adjustment Payments pursuant to Section 5.9(a)),
to receive
48
payment of each installment of the Contract Adjustment Payments with respect to
the Purchase Contract constituting a part of such Security on the respective
Payment Date for such Security and to purchase Common Stock pursuant to such
Purchase Contract and, in each such case, to institute suit for the enforcement
of any such payment and right to purchase Common Stock, and such rights shall
not be impaired without the consent of such Holder.
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 a Corporate SPUS or
a Treasury SPUS, by its acceptance of such Corporate SPUS or Treasury SPUS shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Agreement, or in any
suit against the Agent for any action taken, suffered or omitted by it as Agent,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided that the provisions of this Section shall not
apply to any suit instituted by the Company, to any suit instituted by the
Agent, to any suit instituted by any Holder, or group of Holders, holding in the
aggregate
49
more than [10%] of the Outstanding Securities, or to any suit instituted by any
Holder for the enforcement of dividends payable on any Shares or Contract
Adjustment Payments, if any, on any Purchase Contract on or after the respective
Payment Date therefor in respect of any Security held by such Holder, or for
enforcement of the right to purchase shares of Common Stock under the Purchase
Contracts constituting part of any Security 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 (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Agent or the Holders, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VII
THE AGENT
Section 7.1 Certain Duties and Responsibilities.
(a) The Agent:
(i) undertakes to perform, with respect to the Securities, such
duties and only such duties as are specifically specified 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 Agent; and
(ii) in the absence of bad faith or negligence on its part, may,
with respect to the Securities, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Agent and conforming to
the requirements of this Agreement 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
Agent, the Agent shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Agreement or the Pledge Agreement, as applicable.
(b) No provision of this Agreement or the Pledge Agreement shall be
construed to relieve the Agent from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
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(i) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(ii) the Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Agent was negligent in ascertaining the pertinent facts; and
(iii) no provision of this Agreement or the Pledge Agreement
shall require the Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
adequate indemnity is not provided to it.
(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 Agent shall be subject to the
provisions of this Section.
(d) The Agent is authorized to execute and deliver the Pledge
Agreement in its capacity as Agent.
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 Agent has actual knowledge, the Agent
shall transmit by mail to the Company and the Holders of Securities, 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 Agent.
Subject to the provisions of Section 7.1:
(a) the Agent may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement or the Pledge
Agreement the Agent shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Agent (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate of the
Company;
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(d) the Agent may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the Agent,
in its discretion, may make reasonable further inquiry or investigation into
such facts or matters related to the execution, delivery and performance of the
Purchase Contracts as it may see fit, and, if the Agent shall determine to make
such further inquiry or investigation, it shall be given a reasonable
opportunity to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(f) the 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 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.
Section 7.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Certificates shall be taken as the
statements of the Company, and the Agent assumes no responsibility for their
accuracy, other than for the Certificate of Authentication contained in the
Certificates. The Agent makes no representations as to the validity or
sufficiency of either this Agreement or of the Securities, or of the Pledge
Agreement or the Pledge. The Agent shall not be accountable for the use or
application by the Company of the proceeds in respect of the Purchase Contracts.
Section 7.5 May Hold Securities.
Any Registrar or any other agent of the Company, or the Agent and its
Affiliates, in their individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company, the Collateral
Agent or any other Person with the same rights it would have if it were not
Registrar or such other agent, or the Agent.
Section 7.6 Money Held in Custody.
Money held by the Agent in custody hereunder need not be segregated from
the other funds except to the extent required by law or provided herein. The
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.
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Section 7.7 Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Agent compensation for all services rendered by it
hereunder and under the Pledge Agreement as the Company and the Agent shall from
time to time agree in writing;
(b) except as otherwise expressly provided for herein, to reimburse
the Agent upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Agent in accordance with any provision of this
Agreement 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 negligence or bad
faith; and
(c) to indemnify the Agent and any predecessor Agent for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the acceptance or
administration of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
Section 7.8 Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be a corporation
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having (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, New York City, if there be
such a corporation in the Borough of Manhattan, New York City, qualified and
eligible under this Article and willing to act on reasonable terms. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of such 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 specified in its most
recent report of condition so published. If at any time the Agent shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 7.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 7.10.
53
(b) The Agent may resign at any time by giving written notice thereof
to the Company 60 days prior to the effective date of such resignation. If the
instrument of acceptance by a successor Agent required by Section 7.10 shall not
have been delivered to the Agent within 30 days after the giving of such notice
of resignation, the resigning Agent may petition any court of competent
jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Securities delivered to the Agent and the
Company.
(d) If at any time:
(i) the Agent fails to comply with Section 310(b) of the TIA,
as if the Agent were an indenture trustee under an indenture qualified
under the TIA, after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months;
(ii) the Agent shall cease to be eligible under Section 7.8 and
shall fail to resign after written request therefor by the Company or
by any such Holder; or
(iii) the Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent or of its
property shall be appointed or any public officer shall take charge or
control of the Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Agent, or (ii) any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Agent and
the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Agent and
shall comply with the applicable requirements of Section 7.10. If no successor
Agent shall have been so appointed by the Company and accepted appointment in
the manner required by Section 7.10, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to
give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage
54
prepaid, to all Holders as their names and addresses appear in the applicable
Register. Each notice shall include the name of the successor Agent and the
address of its Corporate Trust Office.
Section 7.10 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Agent, every
such successor Agent so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Agent shall become
effective and such successor Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers, agencies and duties of the
retiring Agent; but, on the request of the Company or the successor Agent, such
retiring Agent shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Agent all the rights, powers and
trusts of the retiring Agent and shall duly assign, transfer and deliver to such
successor Agent all property and money held by such retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies referred
to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the
time of such acceptance such successor Agent shall be qualified and eligible
under this Article.
Section 7.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Agent, shall be the successor of the Agent hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, with
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 Agent then in
office, any successor by merger, conversion or consolidation to such Agent may
adopt such authentication and execution and deliver the Certificates so
authenticated and executed with the same effect as if such successor Agent had
itself authenticated and executed such Securities.
Section 7.12 Preservation of Information; Communications to Holders.
(a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Agent in its
capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Agent, and furnish to the Agent reasonable proof that
each such
55
applicant has owned a Security for a period of at least six months preceding the
date of such application, and such application states that the applicants desire
to communicate with other Holders with respect to their rights under this
Agreement or under the Securities and is accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, then the
Agent shall mail to all the Holders copies of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the 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 Agent.
Except to the extent otherwise expressly provided in this Agreement, the
Agent assumes no obligations and shall not be subject to any liability under
this Agreement, the Pledge Agreement or any Purchase Contract in respect of the
obligations of the Holder of any Security thereunder. The Company agrees, and
each Holder of a Certificate, by its acceptance thereof, shall be deemed to have
agreed, that the 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
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 Agent or its officers, employees or agents be liable under this
Agreement to any third party for indirect, special, punitive, or consequential
loss or damage of any kind whatsoever, including lost profits, whether or not
the likelihood of such loss or damage was known to the Agent, incurred without
any act or deed that is found to be attributable to gross negligence or willful
misconduct on the part of the Agent.
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 Securities or
(ii) the issuance, delivery, holding, transfer, redemption or exercise of rights
under the Securities. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of all
amounts required to be withheld to the appropriate taxing authority or its
designated agent.
(b) The Agent shall comply in accordance with the terms hereof with
any 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 rely on any such direction
in accordance with the provisions of Section 7.1(a)(2) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available, on
written
56
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 and the Agent, at any time
and from time to time, may enter into one or more agreements supplemental
hereto, in form satisfactory to the Company and the Agent, to:
(a) 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;
(b) evidence and provide for the acceptance of appointment hereunder
by a successor Agent;
(c) add to the covenants of the Company for the benefit of the
Holders, or surrender any right or power herein conferred upon the Company;
(d) make provision with respect to the rights of Holders pursuant to
the requirements of Section 5.6(b); or
(e) except as provided for in Section 5.6, 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 such
Holders delivered to the Company and the Agent, the Company, when authorized by
a Board Resolution, and the Agent may enter into an agreement or agreements
supplemental hereto for the purpose of modifying in any manner the terms of the
Purchase Contracts, or the provisions of this Agreement or the rights of the
Holders in respect of the Securities; 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,
(a) change any Payment Date;
57
(b) 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 interest on the related
Collateral (except for the rights of Holders of Corporate SPUS to substitute
Treasury Securities for the Pledged Shares or the rights of Holders or Treasury
SPUS to substitute Shares for the Pledged Treasury Securities) or otherwise
adversely affect the Holder's rights in or to such Collateral or adversely alter
the rights in or to such Collateral;
(c) reduce any Contract Adjustment Payments or change any place
where, or the coin or currency in which, any Contract Adjustment Payment is
payable;
(d) impair the right to institute suit for the enforcement of any
Purchase Contract;
(e) 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
(f) 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 SPUS or the Treasury SPUS, then only the affected
class of Holders as of the record date for the Holders entitled to vote thereon
will be entitled to vote on such amendment or proposal, and such amendment or
proposal shall not be effective except with the 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 such class affected
thereby shall be required to approve any amendment or proposal specified in
clauses (a) through (f) 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 Agent shall be entitled to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Agreement. The Agent may, but shall not be
obligated to, enter into any such supplemental agreement which affects the
Agent's own rights, duties or immunities under this Agreement or otherwise.
58
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 Agent, bear a notation in form approved by the
Agent as to any matter provided for in such supplemental agreement. If the
Company shall so determine, new Certificates so modified as to conform, in the
opinion of the Agent and the Company, to any such supplemental agreement may be
prepared and executed by the Company and authenticated, executed on behalf of
the Holders and delivered by the Agent in exchange for Outstanding Certificates.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Covenant Not to Consolidate, Merge, Sell or Convey Property Except
Under Certain Conditions.
The Company covenants that it will not merge or consolidate with any other
Person or sell, assign, transfer, lease or convey all or substantially all of
its properties and assets to any Person or group of affiliated Persons in one
transaction or a series of related transactions, unless:
(a) either the Company shall be the continuing corporation, or the
successor (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof or
the District of Columbia and such corporation shall expressly assume all the
obligations of the Company under the Purchase Contracts, this Agreement and the
Pledge Agreement by one or more supplemental agreements in form reasonably
satisfactory to the Agent and the Collateral Agent, executed and delivered to
the Agent and the Collateral Agent by such corporation; and
(b) the Company or such successor corporation, as the case may be,
shall not, immediately after such consolidation, merger, sale, assignment,
transfer, lease or conveyance, be in default in the performance of any covenant
or condition hereunder, under any of the Securities or under the Pledge
Agreement.
59
Section 9.2 Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance and upon any such assumption by a successor corporation in
accordance with Section 9.1, such successor corporation shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the Company. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of Dominion Resources, Inc., any
or all of the Certificates evidencing Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Agent; and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Agreement prescribed, the 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 Agent for authentication and
execution, and any Certificate evidencing Securities which such successor
corporation thereafter shall cause to be signed and delivered to the 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 consolidation, merger, sale, assignment, transfer,
lease or conveyance such change in phraseology and form (but not in substance)
may be made in the Certificates evidencing Securities thereafter to be issued as
may be appropriate.
Section 9.3 Officers' Certificate and Opinion of Counsel Given to Agent.
The Agent, subject to Sections 7.1 and 7.3, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, assignment, transfer, lease or conveyance, and any
such assumption, complies with the provisions of this Article and that all
conditions precedent to the consummation of any such consolidation, merger,
sale, assignment, transfer, lease or conveyance have been met.
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 Securities that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
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SECTION 10.2 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, New York City an
office or agency where Certificates may be 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, where Certificates may be
surrendered for registration of transfer or exchange, for a Collateral
Substitution or reestablishment of Corporate SPUS and where notices and demands
to or upon the Company in respect of the Securities and this Agreement may be
served. The Company will give prompt written notice to the Agent of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Agent with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Company hereby appoints the Agent as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where 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, New York City for such purposes. The Company will give prompt written
notice to the Agent of any such designation or rescission and of any change in
the location of any such other office or agency. The Company hereby designates
as the place of payment for the Securities the Corporate Trust Office and
appoints the Agent at its Corporate Trust Office as paying agent in such city.
SECTION 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 Common Stock the full number of shares of Common Stock
issuable against tender of payment in respect of all Purchase Contracts
constituting a part of the Securities evidenced by Outstanding Certificates.
SECTION 10.4 Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be issued
against tender of payment in respect of any Purchase Contract constituting a
part of the Outstanding Securities will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable.
SECTION 10.5 Statements of Officers of the Company as to Default.
The Company will deliver to the Agent, within 140 days after the end of
each fiscal year of the Company (which as of the date hereof is December 31)
ending after the
61
date hereof, an Officers' Certificate (one of the signers of which shall be the
principal executive officer, principal financial officer or principal accounting
officer of the Company), stating whether or not to the 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.
SECTION 10.6 ERISA.
Each Holder from time to time of the Corporate SPUS which is a Plan hereby
represents that its acquisition of the Corporate SPUS and the holding of the
same satisfies the applicable fiduciary requirements of ERISA and that it is
entitled to exemption relief from the prohibited transaction provisions of ERISA
and the Code in accordance with one or more prohibited transaction exemptions or
otherwise will not result in a nonexempt prohibited transaction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
DOMINION RESOURCES, INC.
By:_____________________
Name:
Title:
_______________________,
As Agent
By:_____________________
Name:
Title:
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EXHIBIT A
FACE OF CORPORATE SPUS 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 FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
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."
NO. _______ CUSIP NO. [__________]
NUMBER OF CORPORATE SPUS ________
DOMINION RESOURCES, INC.
CORPORATE SPUS
This Corporate SPUS Certificate certifies that Cede & Co. is the registered
Holder of the number of Corporate SPUS set forth above. Each Corporate SPUS
consists of (i) the beneficial ownership by the Holder of one share of Series B
Preferred Stock (the "Share") of Dominion Resources, Inc., a Virginia
corporation (the "Company"), having a liquidation preference of $50, subject to
the Pledge of such Share by such Holder pursuant to the Pledge Agreement, and
(ii) the rights and obligations of the Holder under one Purchase Contract with
the Company. All capitalized terms used herein which are defined in the Purchase
Contract Agreement (as defined on the reverse hereof) have the meaning set forth
therein.
Pursuant to the Pledge Agreement, the Share constituting part of each
Corporate SPUS 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 SPUS.
The Pledge Agreement provides that all payments of the principal amount
with respect to any of the Pledged Shares or cash dividends on any Pledged
Shares (as defined in the Pledge Agreement) constituting part of the Corporate
SPUS received by the Securities Intermediary shall be paid by wire transfer in
same day funds (i) in the case of (A) cash dividends with respect to Pledged
Shares and (B) any payments of the liquidation preference with respect to any
Share or security entitlements thereto that have been released from the Pledge
pursuant to the Pledge Agreement, to the Agent to the account designated by the
Agent, no later than 12:00 p.m., New York City time, on the Business Day such
payment is received by the Securities Intermediary (PROVIDED that in the event
such payment is received by the Securities Intermediary on a day that is not a
Business Day or after 12:30 p.m., New York City time, on a Business Day, then
such payment shall be made no later than 10:30 a.m., New York City time, on the
next
succeeding Business Day) and (ii) in the case of Proceeds from the Remarketing
with respect to any of the Pledged Shares or security entitlements thereto, to
the Company on the Purchase Contract Settlement Date (as described herein) in
accordance with the terms of the Pledge Agreement, in full satisfaction of the
respective obligations of the Holders of the Corporate SPUS of which such
Pledged Shares are a part under the Purchase Contracts forming a part of such
Corporate SPUS. Dividends on any Share forming part of a Corporate SPUS
evidenced hereby, which is payable quarterly in arrears on [_______________],
[_______________], [_______________] and [_______________] of each year,
commencing [_______________], ____ (a "Payment Date"), shall, subject to receipt
thereof by the Agent from the Securities Intermediary, be paid to the Person in
whose name this Corporate SPUS Certificate (or a Predecessor Corporate SPUS
Certificate) is registered at the close of business on the Record Date for such
Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate SPUS Certificate to purchase, and the Company to sell, on
[__________], 2002 (the "Purchase Contract Settlement Date"), at a price equal
to $50 in cash (the "Stated Amount"), a number of Common Shares, par value $0.01
("Common Stock"), of the Company, equal to the Settlement Rate, unless on or
prior to the Purchase Contract Settlement Date there shall have occurred a
Termination Event or an Early Settlement with respect to the Corporate SPUS 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 separate cash or by application of payment
received, pursuant to the Remarketing, in respect of the liquidation preference
with respect to any Pledged Shares pledged to secure the obligations under such
Purchase Contract of the Holder of the Corporate SPUS of which such Purchase
Contract is a part.
The Company shall pay, on each Payment Date, in respect of each Purchase
Contract forming part of a Corporate SPUS evidenced hereby an amount (the
"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, the Adjusted Contract Adjustment Payment Rate related to
such Reset Transaction until any such succeeding Reset Transaction shall occur
(computed on the basis of (i) for any full quarterly period, a 360-day year of
twelve 30-day months and (ii) for any period shorter than a full quarterly
period, a 30-day month and for periods less than a month, the actual number of
days elapsed per 30-day period). Such Contract Adjustment Payments shall be
payable to the Person in whose name this Corporate SPUS Certificate (or a
Predecessor Corporate SPUS Certificate) is registered at the close of business
on the Record Date for such Payment Date.
Dividends on the Shares and Contract Adjustment Payments will be payable at
the office of the Agent in New York City or, at the option of the Company, by
check mailed to the address of the Person entitled thereto as such address
appears on the Corporate SPUS Register.
Reference is hereby made to the further provisions set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Agent by manual signature, this Corporate SPUS Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Purchase Contract Agreement or
be valid or obligatory for any purpose.
2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DOMINION RESOURCES, INC.
By: ________________________________
Name:
Title:
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:
Dated:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate SPUS Certificates referred to in the within
mentioned Purchase Contract Agreement.
By: [______________________________]
as Purchase Contract Agent
By: ________________________________
Authorized Officer
(FORM OF REVERSE OF CORPORATE SPUS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of _______ [___], ____ (as may be supplemented from time to
time, the "Purchase Contract Agreement"), between the Company and
[_______________________________], as Purchase Contract Agent (including its
successors hereunder, the "Agent"), to which Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Agent, the Company, and the Holders and of the terms upon
which the Corporate SPUS Certificates are, and are to be, executed and
delivered.
3
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate SPUS 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 of the Company equal to the
Settlement Rate, unless, on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to (a) if the Applicable Market Value
(as defined below) is equal to or greater than $[_______] (the "Threshold
Appreciation Price"), [__________] shares of Common Stock per Purchase Contract,
(b) if the Applicable Market Value is less than the Threshold Appreciation Price
but is greater than $[_______] the number of shares of Common Stock per Purchase
Contract equal to the Stated Amount divided by the Applicable Market Value and
(c) if the Applicable Market Amount is less than or equal to $[________],
[________] 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.
Each Purchase Contract evidenced hereby, which is settled either through
Early Settlement or Cash Settlement, shall obligate the Holder of the related
Corporate SPUS to purchase at the Purchase Price, and the Company to sell, a
number of newly issued shares of Common Stock equal to the Early Settlement Rate
or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 Trading Days ending on the third Trading
Day immediately preceding the Purchase Contract Settlement Date. The "Closing
Price" of the Common Stock on any date of determination means (i) the closing
sale price (or, if no closing price is reported, the last reported sale price)
of the Common Stock on the Nasdaq National Market on such date, (ii) if the
Common Stock is not listed for trading on the Nasdaq National Market on any such
date, the closing sale price as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, (iii) if the Common Stock is not so reported, the last quoted bid price
for the Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization or (iv) if such bid price is not
available, the average of the mid-point of the last bid and ask prices 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 (A) is not suspended from trading on
any national or regional securities exchange or association or over-the-counter
market at the close of business and (B) has traded at least once on the national
or regional securities exchange or association or over-the-counter market that
is the primary market for the trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the Holder
of this Corporate SPUS Certificate may pay the Purchase Price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby by
effecting a Cash Settlement or an Early Settlement or a remarketing of the
related Pledged Shares. A Holder of Corporate SPUS who does not effect, on or
prior to 11:00 a.m. New York City time on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date, an effective Cash Settlement or
an Early Settlement, shall pay the Purchase Price for the shares of Common Stock
to be issued under the related Purchase Contract from the proceeds of the sale
of the related Pledged Shares held by the Collateral Agent. Such sale will be
made by the Remarketing Agent pursuant to the terms of the Remarketing Agreement
on the third Business Day prior to the Purchase Contract Settlement Date. If, as
provided in the Purchase Contract Agreement, upon the occurrence of a Failed
Remarketing the Collateral Agent, for the benefit of the Company, exercises its
rights as a secured creditor with respect to the Pledged Shares related to this
Corporate SPUS certificate, any accrued and unpaid dividends on such Pledged
Shares will become payable by the Company to the holder of this Corporate SPUS
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 herein set
forth.
4
Each Purchase Contract evidenced hereby and all obligations and rights of
the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Agent and to the Holders, at their addresses as they
appear in the Corporate SPUS Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Share forming
a part of each Corporate SPUS from the Pledge. A Corporate SPUS shall thereafter
represent the right to receive the Share forming a part of such Corporate SPUS
in accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
Under the terms of the Pledge Agreement, the Agent will be entitled to
exercise the voting and any other consensual rights pertaining to the Pledged
Shares. Upon receipt of notice of any meeting at which holders of Shares are
entitled to vote or upon the solicitation of consents, waivers or proxies of
holders of Shares, the Agent shall, as soon as practicable thereafter, mail to
the Corporate SPUS Holders a notice (a) containing such information as is
contained in the notice or solicitation, (b) stating that each Corporate SPUS
Holder on the record date set by the Agent therefor (which, to the extent
possible, shall be the same date as the record date for determining the holders
of Shares entitled to vote) shall be entitled to instruct the Agent as to the
exercise of the voting rights pertaining to the Shares constituting a part of
such Holder's Corporate SPUS and (c) stating the manner in which such
instructions may be given. Upon the written request of the Corporate SPUS
Holders on such record date, the 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 Shares as to which any
particular voting instructions are received. In the absence of specific
instructions from the Holder of a Corporate SPUS, the Agent shall abstain from
voting the Shares evidenced by such Corporate SPUS.
The Corporate SPUS Certificates are issuable only in registered form and
only in denominations of a single Corporate SPUS and any integral multiple
thereof. The transfer of any Corporate SPUS Certificate will be registered and
Corporate SPUS Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Corporate SPUS Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company and
the Agent may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. A holder who elects to
substitute a Treasury Security for Shares, thereby creating Treasury SPUS, 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 underlying a Corporate SPUS remains in effect, such Corporate SPUS
shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Corporate SPUS in respect of the Share and
Purchase Contract constituting such Corporate SPUS may be transferred and
exchanged only as a Corporate SPUS. The holder of a Corporate SPUS may
substitute for the Pledged Shares securing its obligation under the related
Purchase Contract Treasury Securities in an aggregate principal amount equal to
the aggregate principal amount of the Pledged Shares in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement. From and
after such Collateral Substitution, the Security for which such Pledged Treasury
Securities secures the holder's obligation under the Purchase Contract shall be
referred to as a "Treasury SPUS." A Holder may make such Collateral Substitution
only in integral multiples of 20 Corporate SPUS for 20 Treasury SPUS. Such
Collateral Substitution may cause the equivalent aggregate principal amount of
this Certificate to be increased or decreased; PROVIDED, HOWEVER, this Corporate
SPUS Certificate shall not represent more than ____ Corporate SPUS. All such
adjustments to the equivalent aggregate principal amount of this Corporate SPUS
Certificate shall be duly recorded by placing an appropriate notation on the
Schedule attached hereto.
A Holder of Treasury SPUS may recreate Corporate SPUS by delivering to the
Securities Intermediary Shares with an aggregate liquidation preference equal to
the aggregate principal amount 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.
5
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Corporate SPUS Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Agent in New
York City or, at the option of the Company, by check mailed to the address of
the Person entitled thereto at such address as it appears on the Corporate SPUS
Register.
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 any Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Agent or the Company, if, on or prior
to the 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 Agent, the Collateral Agent and the Holders, at their addresses as they
appear in the Corporate SPUS Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Shares from the Pledge
in accordance with the provisions of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase Contract
Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early (an "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
SPUS Certificate, the Holder of this Corporate SPUS Certificate shall deliver
this Corporate SPUS Certificate to the Agent at the Corporate Trust Office duly
endorsed for transfer to the Company or in blank with the form of Election to
Settle Early set forth below duly completed and accompanied by payment in the
form of immediately available funds payable to the order of the Company in an
amount (the "Early Settlement Amount") equal to (i) the product of (A) the
Stated Amount times (B) the number of Purchase Contracts with respect to which
the Holder has elected to effect Early Settlement, plus (ii) 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 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 Securities, the
Pledged Shares underlying such Securities shall be released from the Pledge as
provided in the Pledge Agreement and the Holder shall be entitled to receive a
number of shares of Common Stock on account of each Purchase Contract forming
part of a Corporate SPUS 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 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.
Upon registration of transfer of this Corporate SPUS Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Corporate
SPUS 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 Holder of this Corporate SPUS Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Corporate SPUS 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
his obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the 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 Shares underlying this
Corporate SPUS Certificate pursuant to the Pledge Agreement. The Holder further
covenants and agrees that, to the extent and in the manner provided in the
Purchase
6
Contract Agreement and the Pledge Agreement, but subject to the terms thereof,
Proceeds from the Remarketing with respect to any of the Pledged Shares or
security entitlements thereto in respect of the aggregate liquidation preference
of the Pledged Shares on the Purchase Contract Settlement Date shall be paid by
the Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the Company or
the Agent may treat the Person in whose name this Corporate SPUS Certificate is
registered as the owner of the Corporate SPUS evidenced hereby for the purpose
of receiving payments of dividends payable quarterly on the Shares, receiving
payments of 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 Agent nor any such agent shall be affected by notice to the
contrary.
The Purchase Contracts shall not, prior to the settlement thereof, entitle
the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Agent.
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 rights of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- ____________________________________
Custodian for
(Cust)
____________________________________
(Minor)
Under Uniform Gifts to Minors Act of
____________________________________
(State)
Additional abbreviations may also be used though not on the above list.
__________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
7
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Corporate SPUS Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ________________________________________
attorney to transfer such Corporate SPUS Certificates on the books of Dominion
Resources, Inc. 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 SPUS 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 or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Corporate SPUS evidenced
by this Corporate SPUS Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: _______________________
________________________________________________
Signature
Signature Guarantee: ___________________________
(if assigned to another person)
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:
8
REGISTERED HOLDER
Please print name and address of Registered Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification
Number, if any ________________________
ELECTION TO SETTLE EARLY
The undersigned Holder of this Corporate SPUS Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Corporate SPUS evidenced by this Corporate
SPUS Certificate specified below. The undersigned Holder directs that a
certificate for shares of Common Stock deliverable upon such Early Settlement be
registered in the name of, and delivered, together with a check in payment for
any fractional share and any Corporate SPUS Certificate representing any
Corporate SPUS evidenced hereby as to which Early Settlement of the related
Purchase Contracts is not effected, to the undersigned at the address indicated
below unless a different name and address have been indicated below. Pledged
Shares deliverable upon such Early Settlement will be transferred in accordance
with the transfer instructions set forth below. If shares are to be registered
in the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
Dated: ______________________
___________________________________
Signature
Signature Guarantee: ___________________________
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
9
If shares of Common Stock or Corporate SPUS Certificates are to be registered in
the name of and delivered to, and Pledged Shares are to be transferred to, a
Person other than the Holder, please print such Person's name and address:
REGISTERED HOLDER
Please print name and address of Registered Holder:
_____________________________________ ____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification
Number, if any _______________________
Transfer Instructions for Pledged Shares Transferable Upon Early Settlement
or a Termination Event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[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 AMOUNT OF AMOUNT OF
SPUS DECREASE IN INCREASE IN
EVIDENCED BY NUMBER OF NUMBER OF
THIS SPUS SPUS
GLOBAL EVIDENCED BY EVIDENCED BY
CERTIFICATE THE THE
FOLLOWING SUCH GLOBAL GLOBAL
DECREASE OR CERTIFICATE CERTIFICATE
INCREASE
DATE:
__________________________________________________________________
SIGNATURE OF AUTHORIZED OFFICER OF SECURITIES TRUSTEE OR CUSTODIAN
10
EXHIBIT B
FACE OF TREASURY SPUS 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 FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
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."
NO. _____ CUSIP NO. [___________]
NUMBER OF TREASURY SPUS _________
DOMINION RESOURCES, INC.
TREASURY SPUS
This Treasury SPUS Certificate certifies that Cede & Co. is the registered
Holder of the number of Treasury SPUS set forth above. Each Treasury SPUS
consists of (i) a 1/20 undivided beneficial ownership interest of a Treasury
Security having a principal amount at maturity equal to $1,000, subject to the
Pledge of such Treasury Security by such Holder pursuant to the Pledge
Agreement, and (ii) the rights and obligations of the Holder under one Purchase
Contract with Dominion Resources, Inc., a Virginia corporation (the "Company").
All capitalized terms used herein which are defined in the Purchase Contract
Agreement (as defined on the reverse hereof) have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Treasury Securities constituting part
of each Treasury SPUS 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 SPUS.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury SPUS Certificate to purchase, and the Company, to sell, on
[____________], 2002 (the "Purchase Contract Settlement Date"), at a price equal
to $50 in cash (the "Stated Amount"), a number of Common Shares, par value $0.01
("Common Stock"), of the Company equal to the Settlement Rate, unless on or
prior to the Purchase Contract Settlement Date there shall have occurred a
Termination Event or an Early Settlement with respect to the Treasury SPUS of
which such Purchase Contract is a part, all as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof. The purchase price for
the shares of Common
1
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 pledged to secure the obligations
under such Purchase Contract in accordance with the terms of the Pledge
Agreement.
The Company shall pay on each Payment Date in respect of each Purchase
Contract evidenced hereby an amount (the "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, the Adjusted
Contract Adjustment Payment Rate related to such Reset Transaction until any
such succeeding Reset Transaction shall occur (computed on the basis of (i) for
any full quarterly period, a 360-day year of twelve 30-day months and (ii) for
any period shorter than a full quarterly period, a 30-day month and for periods
less than a month, the actual number of days elapsed per 30-day period), as the
case may be. Such Contract Adjustment Payments shall be payable to the Person in
whose name this Treasury SPUS Certificate (or a Predecessor Treasury SPUS
Certificate) is registered at the close of business on the Record Date for such
Payment Date.
Contract Adjustment Payments will be payable at the office of the Agent in
New York City or, at the option of the Company, by check mailed to the address
of the Person entitled thereto as such address appears on the Treasury SPUS
Register.
Reference is hereby made to the further provisions set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Agent by manual signature, this Treasury SPUS Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Purchase Contract Agreement or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DOMINION RESOURCES, INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts)
2
By: [___________________________],
not individually but solely as
Attorney-in-Fact of such Holder
By: ______________________________
Name:
Title:
Dated:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Treasury SPUS referred to in the within-mentioned Purchase
Contract Agreement.
By: [_______________________], as
Purchase Contract Agent
By: ____________________________
Authorized Officer
(REVERSE OF TREASURY SPUS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of _______ [___], ____ (as may be supplemented from time to
time, the "Purchase Contract Agreement") between the Company and
[_____________________], as Purchase Contract Agent (including its successors
thereunder, herein called the "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 Agent, the Company and the Holders and of the terms
upon which the Treasury SPUS Certificates are, and are to be, executed and
delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury SPUS 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 of the Company equal to the
Settlement Rate, unless on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to (a) if the Applicable Market Value
(as defined below) is equal to or greater than $[_________] (the "Threshold
Appreciation Price"), [_________] shares of Common Stock per Purchase Contract,
(b) if the Applicable Market Value is less than the Threshold Appreciation Price
but is greater than $[_________], the number of shares of Common Stock per
Purchase Contract equal to the Stated Amount divided by the Applicable Market
Value and (c) if the Applicable Market Amount is less than or equal to
$[_________], 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.
3
Each Purchase Contract evidenced hereby, which is settled either through
Early Settlement or Cash Settlement, shall obligate the Holder of the related
Corporate SPUS to purchase at the Purchase Price, and the Company to sell, a
number of newly issued shares of Common Stock equal to the Early Settlement Rate
or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 Trading Days ending on the third Trading
Day immediately preceding the Purchase Contract Settlement Date. The "Closing
Price" of the Common Stock on any date of determination means (i) the closing
sale price (or, if no closing price is reported, the last reported sale price)
of the Common Stock on the Nasdaq National Market on such date, (ii) if the
Common Stock is not listed for trading on the Nasdaq National Market on any such
date, the closing sale price as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, (iii) if the Common Stock is not so reported, the last quoted bid price
for the Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization or (iv) if such bid price is not
available, the average of the mid-point of the last bid and ask prices 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 (A) is not suspended from trading on
any national or regional securities exchange or association or over-the-counter
market at the close of business and (B) has traded at least once on the national
or regional securities exchange or association or over-the-counter market that
is the primary market for the trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the Holder
of this Corporate SPUS Certificate may pay the Purchase Price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby by
effecting a Cash Settlement or an Early Settlement or a remarketing of the
related Pledged Shares. A Holder of Corporate SPUS who does not effect, on or
prior to 11:00 a.m. New York City time on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date, an effective Cash Settlement or
an Early Settlement, shall pay the Purchase Price for the shares of Common Stock
to be issued under the related Purchase Contract from the proceeds of the sale
of the Pledged Treasury Securities.
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.
Each Purchase Contract evidenced hereby and all obligations and rights of
the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Agent and to the Holders, at their addresses as they
appear in the Corporate SPUS Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Share forming
a part of each Corporate SPUS from the Pledge. A Corporate SPUS shall thereafter
represent the right to receive the Share forming a part of such Corporate SPUS
in accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Treasury SPUS Certificates are issuable only in registered form and
only in denominations of a single Treasury SPUS and any integral multiple
thereof. The transfer of any Treasury SPUS Certificate will be registered and
Treasury SPUS Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Treasury SPUS Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents permitted by the
Purchase Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. A Holder who elects to substitute Shares for
Treasury Securities, thereby recreating Corporate SPUS, shall be responsible for
any fees or expenses associated therewith. Except as provided in the Purchase
Contract Agreement, for so long as the Purchase Contract underlying a Treasury
SPUS remains in effect, such Treasury SPUS shall not be separable into its
constituent parts, and the rights and obligations of
4
the Holder of such Treasury SPUS in respect of the Treasury Security and the
Purchase Contract constituting such Treasury SPUS may be transferred and
exchanged only as a Treasury SPUS. A Holder of Treasury SPUS may recreate
Corporate SPUS by delivering to the Collateral Agent Shares with a liquidation
preference 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. From and after such substitution, the Holder's Security
shall be referred to as an "Corporate SPUS." Such substitution may cause the
equivalent aggregate principal amount of this Certificate to be increased or
decreased; PROVIDED, HOWEVER, this Treasury SPUS Certificate shall not represent
more than ____ Treasury SPUS. All such adjustments to the equivalent aggregate
principal amount of this Treasury SPUS Certificate shall be duly recorded by
placing an appropriate notation on the Schedule attached hereto.
A Holder of a Corporate SPUS may recreate a Treasury SPUS by delivering to
the Collateral Agent Treasury Securities in an aggregate principal amount equal
to the aggregate liquidation preference of the Pledged Shares in exchange for
the release of such Pledged Shares in accordance with the terms of the Purchase
Contract Agreement and the Pledge Agreement. Any such recreation of a Treasury
SPUS may be effected only in multiples of 20 Corporate SPUS for 20 Treasury
SPUS.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Treasury SPUS Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Agent in New
York City or, at the option of the Company, by check mailed to the address of
the Person entitled thereto at such address as it appears on the Treasury SPUS
Register.
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 Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Agent or the Company, if, on or prior
to the 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 Agent, the Collateral Agent and the Holders, at their addresses as they
appear in the Treasury SPUS 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.
Subject to and upon compliance with the provisions of the Purchase Contract
Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early (an "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
SPUS the Holder of this Treasury SPUS Certificate shall deliver this Treasury
SPUS Certificate to the Agent at the Corporate Trust Office duly endorsed for
transfer to the Company or in blank with the form of Election to Settle Early
set forth below duly completed and accompanied by payment in the form of
immediately available funds payable to the order of the Company in an amount
(the "Early Settlement Amount") equal to (i) the product of (A) $50 times (B)
the number of Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement, plus (ii) 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 Contract Adjustment Payments payable, if any, on such
Payment Date with respect to such Purchase Contracts. Upon Early Settlement of
Purchase Contracts by a Holder of the related Securities, the Pledged Treasury
Securities underlying such Securities shall be released from the Pledge as
provided in the Pledge Agreement and the Holder shall be entitled to receive a
number of shares of Common Stock on account of each Purchase Contract forming
part of a Treasury SPUS as to which Early Settlement is effected equal to
[_________] shares of Common Stock per Purchase Contract (the "Early Settlement
Rate"). The Early Settlement Rate 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.
5
Upon registration of transfer of this Treasury SPUS Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Treasury
SPUS 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 Holder of this Treasury SPUS Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Treasury SPUS 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 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
underlying this Treasury SPUS 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 on the Purchase Contract Settlement
Date shall be paid by the Collateral Agent to the Company in satisfaction of
such Holder's obligations under such Purchase Contract and such Holder shall
acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the Company or
the Agent may treat the Person in whose name this Treasury SPUS Certificate is
registered as the owner of the Treasury SPUS evidenced hereby for the purpose of
receiving payments of interest on the Treasury Securities, receiving payments of
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 Agent nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof, entitle
the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Agent.
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 rights of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- ________________________________
6
Custodian for
(Cust)
____________________________________
(Minor)
Under Uniform Gifts to Minors Act of
____________________________________
(State)
Additional abbreviations may also be used though not on the above list.
______________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Treasury SPUS Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ________________________________________
attorney to transfer such Treasury SPUS Certificates on the books of Dominion
Resources, Inc. 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 SPUS 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 or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Treasury SPUS evidenced
by this Treasury SPUS 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
7
indicated below unless a different name and address have been indicated below.
If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated: _______________________
_______________________________________
Signature
Signature Guarantee: __________________
(if assigned to another person)
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:
REGISTERED HOLDER
Please print name and address of Registered Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification
Number, if any _______________________
8
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury SPUS Certificate irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Treasury SPUS evidenced by this Treasury SPUS
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Treasury SPUS with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Treasury SPUS Certificate representing any Treasury SPUS evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Treasury Securities deliverable upon such
Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: ______________________
______________________________________
Signature
Signature Guarantee: _____________________________________
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock of Treasury SPUS Certificates are to be registered in
the name of and delivered to and Pledged Treasury Securities are to be
transferred to a Person other than the Holder, please print such Person's name
and address:
REGISTERED HOLDER
Please print name and address of Registered Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
9
Social Security or other Taxpayer Identification Number, if any
_____________________________________
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement or a Termination Event:
[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 AMOUNT OF AMOUNT OF
SPUS DECREASE IN INCREASE IN
EVIDENCED BY NUMBER OF NUMBER OF
THIS SPUS SPUS
GLOBAL EVIDENCED BY EVIDENCED BY
CERTIFICATE THE THE
FOLLOWING SUCH GLOBAL GLOBAL
DECREASE OR CERTIFICATE CERTIFICATE
INCREASE
DATE:
__________________________________________________________________
SIGNATURE OF AUTHORIZED OFFICER OF SECURITIES TRUSTEE OR CUSTODIAN
10
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
[____________________________]
Attention:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company")
The undersigned Holder hereby notifies you that it has delivered to
[_________________], as Securities Intermediary, for credit to the Collateral
Account, $______ aggregate liquidation preference of [Shares] [Treasury
Securities] in exchange for the [Pledged Shares] [Pledged Treasury Securities]
held in the Collateral Account, in accordance with the Pledge Agreement, dated
as of _______ [___], ____ (the "Pledge Agreement"; unless otherwise defined
herein, terms defined in the Pledge Agreement are used herein as defined
therein), among you, the Company, the Collateral Agent and the Securities
Intermediary. The undersigned Holder has paid all applicable fees relating to
such exchange. The undersigned Holder hereby instructs you to instruct the
Collateral Agent to release to you on behalf of the undersigned Holder the
[Pledged Shares] [Pledged Treasury Securities] related to such [Corporate SPUS]
[Treasury SPUS].
Date: ________________
______________________________________
Signature
Signature Guarantee:__________________
Please print name and address of Registered Holder:
______________________________________
Name
______________________________________
Social Security or other Taxpayer
Identification Number, if any
Address
______________________________________
______________________________________
______________________________________
1
EXHIBIT D
NOTICE FROM PURCHASE CONTRACT AGENT
TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
____________________
____________________
Attention:
Telecopy: __________
Re: __________ SPUS of DOMINION RESOURCES, INC. (the "Company")
Please refer to the Purchase Contract Agreement, dated as of _______ [___],
____ (the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
among the Company and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of SPUS from time to time.
We hereby notify you that a Termination Event has occurred and that [the
Shares][the Treasury Securities] underlying your ownership interest in _____
[Corporate SPUS][Treasury SPUS] have been released and are being held by us for
your account pending receipt of transfer instructions with respect to such
[Shares][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
SPUS][Treasury SPUS] effected through book-entry or by delivery to us of your
[Corporate SPUS Certificate][Treasury SPUS 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 [dividends] [interest] thereon,
shall be held in our name, or a nominee in trust for your benefit, until such
time as such [Corporate SPUS][Treasury SPUS] are transferred or your [Corporate
SPUS Certificate][Treasury SPUS Certificate] is surrendered or satisfactory
evidence is provided that your [Corporate SPUS Certificate][Treasury SPUS
Certificate] has been destroyed, lost or stolen, together with any
indemnification that we or the Company may require.
Date: ________________________
By: [______________________________]
______________________________
Name:
Title:
1
EXHIBIT E
NOTICE TO SETTLE BY SEPARATE CASH
[_________________________]
Attention:
Re: ________ SPUS of Dominion Resources, Inc. (the "Company")
The undersigned Holder hereby irrevocably notifies you in accordance with
Section 5.4 of the Purchase Contract Agreement, dated as of _______ [___], ____
(the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and yourselves, as Purchase Contract Agent and as Attorney-
in-Fact for the Holders of the Purchase Contracts, that such Holder has elected
to pay to the Securities Intermediary for deposit in the Collateral Account, on
or 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 SPUS] [Treasury SPUS].
Date: _______________________
________________________________________
Signature
Signature Guarantee:____________________
Please print name and address of Registered Holder:
1
EXHIBIT F
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Payment of Purchase Contract Settlement Price)
[____________________________
Attention:
Telecopy:
[____________________________
Attention:
Telecopy:
Re: __________ SPUS of Dominion Resources, Inc. (the "Company")
Please refer to the Purchase Contract Agreement dated as of _______ [___],
____ (the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of SPUS from time to time.
In accordance with Section 5.4 of the Purchase Contract Agreement and,
based on instructions and Cash Settlements received from Holders of Corporate
SPUS as of 11:00 a.m, [DATE (FIFTH BUSINESS DAY IMMEDIATELY PRECEDING THE
PURCHASE CONTRACT SETTLEMENT DATE)], we hereby notify you that [_____ Shares]
are to be tendered for purchase in the Remarketing.
Date: ______________________
By: [___________________________]
____________________________
Name:
Title:
1
