EXHIBIT 4(c)
AMERICAN ELECTRIC POWER COMPANY, INC.
AND
THE BANK OF NEW YORK
AS FORWARD PURCHASE CONTRACT AGENT
FORWARD PURCHASE CONTRACT AGREEMENT
Dated as of June 11, 2002
Table of Contents
. Page
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........... 1
Section 1.1 Definitions.................................................. 1
Section 1.2 Compliance Certificates and Opinions.........................13
Section 1.3 Form of Documents Delivered to Agent.........................14
Section 1.4 Acts of Holders; Record Dates................................14
Section 1.5 Notices......................................................16
Section 1.6 Notice to Holders; Waiver....................................16
Section 1.7 Effect of Headings and Table of Contents.....................17
Section 1.8 Successors and Assigns.......................................17
Section 1.9 Separability Clause..........................................17
Section 1.10 Benefits of Agreement........................................17
Section 1.11 Governing Law................................................17
Section 1.12 Legal Holidays...............................................17
Section 1.13 Counterparts.................................................18
Section 1.14 Inspection of Agreement......................................18
ARTICLE II. CERTIFICATE FORMS................................................18
Section 2.1 Forms of Certificates Generally..............................18
Section 2.2 Form of Agent's Certificate of Authentication................19
ARTICLE III. THE EQUITY UNITS................................................20
Section 3.1 Title and Terms; Denominations...............................20
Section 3.2 Rights and Obligations Evidenced by the Certificates.........20
Section 3.3 Execution, Authentication, Delivery and Dating...............21
Section 3.4 Temporary Certificates.......................................22
Section 3.5 Registration; Registration of Transfer and Exchange..........22
Section 3.6 Book-Entry Interests.........................................24
Section 3.7 Notices To Holders...........................................24
Section 3.8 Appointment of Successor Clearing Agency.....................24
Section 3.9 Definitive Certificates......................................24
Section 3.10 Mutilated, Destroyed, Lost and Stolen Certificates...........25
Section 3.11 Persons Deemed Owners........................................26
Section 3.12 Cancellation.................................................27
Section 3.13 Establishment of Stripped Units..............................27
Section 3.14 Reestablishment of Equity Units..............................28
Section 3.15 Transfer of Collateral Upon Occurrence of Termination Event..30
Section 3.16 No Consent to Assumption.....................................30
ARTICLE IV. THE NOTES........................................................30
Section 4.1 Payment of Interest; Rights to Interest Payments
Preserved; Notice....................................30
Section 4.2 Notice and Voting............................................31
Section 4.3 Tax Event Redemption.........................................32
ARTICLE V. THE FORWARD PURCHASE CONTRACTS; THE REMARKETING...................32
Section 5.1 Purchase of Shares of Common Stock...........................32
Section 5.2 Contract Adjustment Payments...................................
Section 5.3 Deferral of Contract Adjustment Payments.....................35
Section 5.4 Payment of Purchase Price; Remarketing.......................37
Section 5.5 Issuance of Shares of Common Stock...........................42
Section 5.6 Adjustment of Settlement Rate................................42
Section 5.7 Notice of Adjustments and Certain Other Events...............49
Section 5.8 Termination Event; Notice....................................50
Section 5.9 Early Settlement.............................................50
Section 5.10 Early Settlement Upon Merger.................................52
Section 5.11 Charges and Taxes............................................53
Section 5.12 No Fractional Shares.........................................54
Section 5.13 Tax Treatment................................................54
ARTICLE VI. REMEDIES.........................................................54
Section 6.1 Unconditional Right of Holders to Purchase Common Stock......54
Section 6.2 Restoration of Rights and Remedies...........................55
Section 6.3 Rights and Remedies Cumulative...............................55
Section 6.4 Delay or Omission Not Waiver.................................55
Section 6.5 Undertaking For Costs........................................55
Section 6.6 Waiver of Stay or Extension Laws.............................56
ARTICLE VII. THE AGENT.......................................................56
Section 7.1 Certain Duties, Rights and Immunities........................56
Section 7.2 Notice of Default............................................58
Section 7.3 Certain Rights of Agent......................................58
Section 7.4 Not Responsible For Recitals, Etc............................59
Section 7.5 May Hold Equity Units and Stripped Units and Other Dealings..60
Section 7.6 Money Held In Custody........................................60
Section 7.7 Compensation and Reimbursement...............................60
Section 7.8 Corporate Agent Required; Eligibility........................61
Section 7.9 Resignation and Removal; Appointment of Successor............61
Section 7.10 Acceptance of Appointment By Successor.......................62
Section 7.11 Merger, Conversion, Consolidation or Succession to Business..63
Section 7.12 Preservation of Information; Communications to Holders.......63
Section 7.13 Failure to Act...............................................63
Section 7.14 No Obligations of Agent......................................64
Section 7.15 Tax Compliance...............................................64
ARTICLE VIII. SUPPLEMENTAL AGREEMENTS........................................65
Section 8.1 Supplemental Agreements Without Consent of Holders...........65
Section 8.2 Supplemental Agreements With Consent of Holders..............65
Section 8.3 Execution of Supplemental Agreements.........................67
Section 8.4 Effect of Supplemental Agreements............................67
Section 8.5 Reference to Supplemental Agreements.........................67
ARTICLE IX. CONSOLIDATION, MERGER, SALE OR CONVEYANCE........................67
Section 9.1 Company May Consolidate, Etc., Only on Certain Terms.........67
Section 9.2 Successor Substituted........................................68
ARTICLE X. COVENANTS.........................................................68
Section 10.1 Performance Under Forward Purchase Contracts.................68
Section 10.2 Maintenance of Office or Agency..............................68
Section 10.3 Company to Reserve Common Stock..............................69
Section 10.4 Covenants as to Common Stock.................................69
Section 10.5 Statements of Officer of the Company as to Default...........69
Section 10.6 ERISA........................................................70
EXHIBITS
Exhibit A...Form of Equity Units Certificate
Exhibit B...Form of Stripped Units Certificate
Exhibit C...Instruction from Forward Purchase Contract Agent to Collateral Agent
Exhibit D...Instruction to Forward Purchase Contract Agent
Exhibit E...Notice to Settle by Cash
FORWARD PURCHASE CONTRACT AGREEMENT, dated as of June 11, 2002, between
American Electric Power Company, Inc., a New York corporation (the "Company"),
and The Bank of New York, a New York banking corporation, acting as Forward
Purchase Contract Agent for the Holders of Equity Units and Stripped Units from
time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Equity Units and Stripped Units.
All things necessary to make the Forward 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 this Agreement a valid
agreement of the Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the Equity
Units by the Holders thereof, the Company and the Agent mutually agree as
follows:
ARTICLE .
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 or other subdivision; and
(d) the following terms have the meanings given to them in this
Section 1.1(d):
"Act" when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Agent" means the Person named as the "Agent" in the first paragraph
of this instrument until a successor Agent shall have become such
pursuant to the applicable provisions of this Agreement, and
thereafter "Agent" shall mean such Person.
"Agent-purchased Treasury Consideration" has the meaning specified in
Section 5.4(d).
"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(c).
"Applicable Ownership Interest" means, with respect to an Equity Unit
and the U.S. Treasury Securities in the Treasury Portfolio, (A) for
the principal amount of a Note, a 1/20, or 5.0%, undivided beneficial
ownership interest in a $1,000 principal or interest amount of a
principal or interest strip in a U.S. Treasury security included in
such Treasury Portfolio which matures on or prior to the Stock
Purchase Date and (B) for the scheduled interest Payment Date on the
Notes that occurs on the Stock Purchase Date, in the case of a
successful remarketing, or for each scheduled interest Payment Date on
the Notes that occurs after the Tax Event Redemption Date and on or
before the Stock Purchase Date, in the case of a Tax Event Redemption,
a 0.071875% undivided beneficial ownership interest in a $1,000
principal or interest amount of a principal or interest strip in a
U.S. Treasury security included in the Treasury Portfolio that matures
on or prior to that interest Payment Date or Dates.
"Applicants" has the meaning specified in Section 7.12(b).
"Bankruptcy Code" means Title 11 of the United States Code, or any
other law of the United States that from time to time provides a
uniform system of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry Interest, a
Person who is the beneficial owner of such Book-Entry Interest as
reflected on the books of the 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 either the Board of Directors of the
Company or any other committee of such Board duly authorized to act
generally or in any particular respect for such Board hereunder.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect
on the date of such certification or (ii) a copy of a unanimous
written consent of the Board of Directors.
"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, Sunday or any
other day on which banking institutions and trust companies in the
State of New York or at a place of payment are authorized or required
by law, regulation or executive order to be closed.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interests in (however designated, whether voting or non-voting)
corporate stock or similar interests in other types of entities.
"Cash Merger" has the meaning specified in Section 5.10(a).
"Cash Settlement" has the meaning specified in Section 5.4(a).
"Certificate" means an Equity Units Certificate or a Stripped Units
Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as
a Depository for the Equity Units and Stripped Units and in whose
name, or in the name of a nominee of that organization, shall be
registered a Global Certificate and which shall undertake to effect
book-entry transfers and pledges of the Equity Units and Stripped
Units.
"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(c).
"Code" means Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated thereunder.
"Collateral" has the meaning specified in Section 2.1(a) of the Pledge
Agreement.
"Collateral Agent" means The Bank of New York, 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(a).
"Common Stock" means the common stock, par value $6.50 per share, of
the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such
pursuant to the applicable provisions of this Agreement, and
thereafter "Company" shall mean such successor.
"Constituent Person" has the meaning specified in Section 5.6(b).
"Contract Adjustment Payments" means, in the case of Equity Units and
Stripped Units, the amount payable by the Company in respect of each
Forward Purchase Contract constituting a part of such Equity Units or
Stripped Units, equal to 3.50% per year of the Stated Amount, in each
case computed (1) for any full quarterly period on the basis of a
360-day year of twelve 30-day months, and (2) for any period shorter
than a full quarterly period, on the basis of a 30-day month and (3)
for periods of less than a month, on the basis of the actual number of
days elapsed per 30-day month, plus any Deferred Contract Adjustment
Payments accrued pursuant to Section 5.3.
"Corporate Trust Office" means the office of the Agent at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at The Bank
of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Coupon Rate" means the percentage rate per annum at which each Note
will bear interest initially.
"Current Market Price" has the meaning specified in Section 5.6(a)(8).
"Custodial Agent" means The Bank of New York, as Custodial Agent under
the Pledge Agreement until a successor Custodial Agent shall have
become such pursuant to the applicable provisions of the Pledge
Agreement, and thereafter "Custodial Agent" shall mean the Person who
is then the Custodial Agent thereunder.
"Deferred Contract Adjustment Payments" has the meaning specified in
Section 5.3.
"Depository" means, initially, DTC, until another Clearing Agency
becomes its successor, and thereafter "Depository" shall mean such
successor.
"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).
"Equity Units" means the collective rights and obligations of a Holder
of an Equity Units Certificate in respect of a Note or the appropriate
Treasury Consideration or Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, subject in each case to the
Pledge thereof, and the related Forward Purchase Contract.
"Equity Units Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Equity Units
specified on such certificate, substantially in the form of Exhibit A
hereto.
"Equity Units Register" and "Equity Units Registrar" have the
respective meanings specified in Section 3.5(a).
"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(f).
"Expiration Time" has the meaning specified in Section 5.6(a)(6).
"Failed Remarketing" has the meaning specified in Section 5.4(e).
"Fair Market Value" with respect to securities distributed in a
Spin-Off means (a) in the case of any Spin-Off that is effected
simultaneously with an Initial Public Offering of such securities, the
Initial Public Offering price of those securities, and (b) in the case
of any other Spin-Off, the average of the Sale Prices of those
securities over the first 10 Trading Days after the effective date of
such Spin-Off.
"Forward Purchase Contract," when used with respect to any Equity
Units or Stripped Units, means the contract forming a part of such
Equity Unit or Stripped Unit and obligating the Company to sell and
the Holder of such Equity Unit or Stripped Unit to purchase Common
Stock on the terms and subject to the conditions set forth in Article
Five.
"Forward Purchase Contract Settlement Fund" has the meaning specified
in Section 5.5.
"Global Certificate" means a Certificate that evidences all or part of
the Units and is registered in the name of a Depository or a nominee
thereof.
"Holder" means the Person in whose name the Units evidenced by an
Equity Units Certificate or a Stripped Units Certificate is registered
in the Equity Units Register or the Stripped Units Register, as the
case may be.
"Indenture" means the Indenture, dated as of May 1, 2001, between the
Company and the Trustee as supplemented by any officers' certificate
or supplemental indenture.
"Initial Public Offering," with respect to any Spin-Off, means the
first time securities of the same class or type as the securities
being distributed in the Spin-Off are bone fide offered to the public
for cash.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Company by the Chief Executive Officer, the
Chief Financial Officer, the President, any Vice-President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary (or other officer performing similar functions) of the
Company and delivered to the Agent.
"Last Failed Remarketing" has the meaning specified in Section
5.4(e)(i).
"Merger Early Settlement" has the meaning specified in Section 5.10.
"Merger Early Settlement Amount" has the meaning specified in Section
5.10.
"Merger Early Settlement Date" has the meaning specified in Section
5.10.
"Non-electing Share" has the meaning specified in Section 5.6(b).
"Notes" means the series of senior debt securities of the Company
designated the 5.75% Senior Notes Due August 16, 2007, to be issued
under the Indenture.
"NYSE" has the meaning specified in Section 5.1(c).
"Office of the Agent in The City of New York" means an office where
Certificates may be presented or surrendered for acquisition of shares
of Common Stock, transfer or exchange, Notes may be presented for
payment or surrendered for transfer or exchange, and where notices and
demands to or upon the Company in respect of Units may be served, such
office being located initially at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
"Officer's Certificate" means a certificate signed by the Chief
Executive Officer, the Chief Financial Officer, the President, any
Vice-President, the Treasurer, any Assistant Treasurer, the Secretary
or any Assistant Secretary (or other officer performing similar
functions) of the Company and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company or an
Affiliate of the Company.
"Opt-out Treasury Consideration" has the meaning specified in Section
5.4(g).
"Outstanding Units" means, as of the date of determination, all Equity
Units or Stripped Units evidenced by Certificates theretofore
authenticated, executed and delivered under this Agreement, except:
(i) If a Termination Event has occurred, (A) Stripped Units and (B)
Equity Units for which the related Note or the appropriate
Treasury Consideration or Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, has been theretofore
deposited with the Agent in trust for the Holders of such Equity
Units;
(ii) Equity Units and Stripped Units 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
(iii)Equity Units and Stripped Units evidenced by Certificates in
exchange for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered
pursuant to this Agreement, other than any such Certificate in
respect of which there shall have been presented to the Agent
proof satisfactory to it that such Certificate is held by a bona
fide purchaser in whose hands the Equity Units or Stripped Units
evidenced by such Certificate are valid obligations of the
Company;
provided, that in determining whether the Holders of the requisite
number of the Equity Units or Stripped Units have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Equity Units or Stripped Units owned by the Company or any Affiliate
of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Agent shall be protected in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Equity Units or Stripped Units which a
Responsible Officer of the Agent actually knows to be so owned shall
be so disregarded. Equity Units or Stripped Units so owned which have
been pledged in good faith may be regarded as Outstanding Units if the
pledgee establishes to the satisfaction of the Agent the pledgee's
right so to act with respect to such Equity Units or Stripped Units
and that the pledgee is not the Company or any Affiliate of the
Company.
"Payment Date" means each February 16, May 16, August 16 and November
16, commencing August 16, 2002.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Plan" means an employee benefit plan that is subject to Title I of
ERISA, a plan, individual retirement account or other arrangement that
is subject to Section 4975 of the Code or any similar law or any
entity whose underlying assets are considered to include "plan assets"
of any such plan, account or arrangement.
"Pledge" means the pledge under the Pledge Agreement of the Notes, the
Treasury Securities or the appropriate Treasury Consideration or
Applicable Ownership Interest in the Treasury Portfolio, in each case
constituting a part of the Equity Units or Stripped Units, property,
cash, securities, financial assets and security entitlements of the
Collateral Account (as defined in Section 1.1 of the Pledge Agreement)
and any proceeds of any of the foregoing.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, by and among the Company, the Collateral Agent, the Custodial
Agent, the Securities Intermediary and the Agent, on its own behalf
and as attorney-in-fact for the Holders from time to time of the
Equity Units and Stripped Units.
"Pledged Applicable Ownership Interest in the Treasury Portfolio" has
the meaning specified in Section 2.1(c) of the Pledge Agreement.
"Pledged Notes" has the meaning specified in Section 2.1(c) of the
Pledge Agreement.
"Pledged Treasury Consideration" has the meaning specified in Section
2.1(c) of the Pledge Agreement.
"Pledged Treasury Securities" has the meaning specified in Section
2.1(c) of the Pledge Agreement.
"Predecessor Certificate" means a Predecessor Equity Units Certificate
or a Predecessor Stripped Units Certificate.
"Predecessor Equity Units Certificate" of any particular Equity Units
Certificate means every previous Equity Units Certificate evidencing
all or a portion of the rights and obligations of the Company and the
Holder under the Equity Units evidenced thereby; and, for the purposes
of this definition, any Equity Units Certificate authenticated and
delivered under Section 3.10 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Equity Units Certificate shall be
deemed to evidence the same rights and obligations of the Company and
the Holder as the mutilated, destroyed, lost or stolen Equity Units
Certificate.
"Predecessor Stripped Units Certificate" of any particular Stripped
Units Certificate means every previous Stripped Units Certificate
evidencing all or a portion of the rights and obligations of the
Company and the Holder under the Stripped Units evidenced thereby;
and, for the purposes of this definition, any Stripped Units
Certificate authenticated and delivered under Section 3.10 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Stripped
Units Certificate shall be deemed to evidence the same rights and
obligations of the Company and the Holder as the mutilated, destroyed,
lost or stolen Stripped Units Certificate.
"Purchase Price" has the meaning specified in Section 5.1(a).
"Purchased Shares" has the meaning specified in Section 5.6(a)(6).
"Quotation Agent" means X.X. Xxxxxx Securities Inc. or its successor
or any other primary U.S. government securities dealer in New York
City selected by the Company.
"Record Date" for the distribution 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, the 15th day preceding
such Payment Date.
"Redemption Amount" means, (A) in the case of a Tax Event Redemption
occurring prior to the earlier of a successful remarketing of the
Notes or the Stock Purchase Date, for each Note the product of (i) the
Stated Amount of such Note and (ii) a fraction whose numerator is the
applicable Treasury Portfolio Purchase Price and whose denominator is
the aggregate principal amount of Notes outstanding on the Tax Event
Redemption Date, and (B) in the case of a Tax Event Redemption
occurring after the earlier of a successful remarketing of the Notes
or the Stock Purchase Date, for each Note the Stated Amount of the
Note.
"Redemption Price" means the redemption price per Note equal to the
Redemption Amount.
"Register" means the Equity Units Register and the Stripped Units
Register, as applicable.
"Registrar" means the Equity Units Registrar and the Stripped Units
Registrar, as applicable.
"Remarketing Agent" means Xxxxxxx Xxxxx Barney Inc. or its successor
under the Remarketing Agreement.
"Remarketing Agreement" means the Remarketing Agreement dated June 11,
2002 by and among the Company, the Remarketing Agent and the Agent.
"Remarketing Date" means the third Business Day preceding May 16,
2005.
"Remarketing Fee" has the meaning specified in Section 5.4(d).
"Remarketing Period" means the three Business Day period either: (i)
beginning on the Remarketing Date and ending after the two immediately
following Business Days; (ii) immediately preceding June 16, 2005;
(iii) immediately preceding July 16, 2005; or (iv) immediately
preceding August 12, 2005.
"Remarketing Value" means
(1) the value at the Remarketing Date or any Subsequent Remarketing
Date, as the case may be, of either (a) U.S. Treasury securities
that will pay, on or prior to the Payment Date falling on the
Stock Purchase Date, an amount of cash equal to the aggregate
interest payment that is scheduled to be payable on that Payment
Date, on (x) the Notes which are included in Equity Units and are
participating in the remarketing and (y) the Separate Notes which
are to be remarketed pursuant to Section 4.5(d) of the Pledge
Agreement and Section 1.6 of the Supplemental Indenture, assuming
for that purpose that the interest rate on the Notes is equal to
the Coupon Rate, if the remarketing occurs prior to the fourth
Business Day preceding the Stock Purchase Date, or (b) an amount
of cash equal to the aggregate interest payment that is scheduled
to be payable on that Payment Date, on (x) the Notes which are
included in Equity Units and are participating in the remarketing
and (y) the Separate Notes which are to be remarketed pursuant to
Section 4.5(d) of the Pledge Agreement, assuming for that purpose
that the interest rate on the Notes is equal to the Coupon Rate,
if the remarketing occurs on or after the fourth Business Day
preceding the Stock Purchase Date; and
(2) the value at the Remarketing Date or any Subsequent Remarketing
Date, as the case may be, of either (a) U.S. Treasury securities
that will pay, on or prior to the Stock Purchase Date, an amount
of cash equal to the Stated Amount of (x) such Notes which are
included in Equity Units and are participating in the remarketing
and (y) the Separate Notes which are to be remarketed pursuant to
Section 4.5(d) of the Pledge Agreement and Section 1.6 of the
Supplemental Indenture, if the remarketing occurs prior to the
fourth Business Day preceding the Stock Purchase Date, or (b) an
amount of cash equal to the Stated Amount of (x) such Notes which
are included in Equity Units and are participating in the
remarketing and (y) the Separate Notes which are to be remarketed
pursuant to Section 4.5(d) of the Pledge Agreement, if the
remarketing occurs on or after the fourth Business Day preceding
the Stock Purchase Date
provided that for purposes of clauses (1) and (2) above, the
Remarketing Value shall be calculated on the assumptions that (x) the
U.S. Treasury securities are highly liquid and mature on or within 35
days prior to the Stock Purchase Date, as determined in good faith by
the Remarketing Agent in a manner intended to minimize the cash value
of the U.S. Treasury securities, and (y) the U.S. Treasury securities
are valued based on the ask-side price of the U.S. Treasury securities
at a time between 9:00 a.m. and 11:00 a.m., New York City time,
selected by the Remarketing Agent, on the Remarketing Date or any
Subsequent Remarketing Date, as the case may be, as determined on a
third-day settlement basis by reasonable and customary means selected
in good faith by the Remarketing Agent, plus accrued interest to that
date.
"Reorganization Event" has the meaning specified in Section 5.6(b).
"Reset Rate" has the meaning specified in Section 5.4(c).
"Responsible Officer" means, when used with respect to the Agent, any
officer within the corporate trust department of the Agent (or any
successor of the Agent), including any Vice-President, any assistant
Vice-President, any assistant secretary, any assistant treasurer, any
trust officer, any senior trust officer or any other officer of the
Agent who customarily performs functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or
to whom any corporate trust matter is referred because of such
Person's knowledge of and familiarity with the particular subject and
who, in each of the above cases, shall have direct responsibility for
the administration of this Agreement.
"Sale Price" of the Common Stock or any securities distributed in a
Spin-Off, as the case may be, on any Trading Day means the closing
sale price per share (or if no closing sale price is reported, the
average of the bid and asked prices or, if more than one in either
case, the average of the average bid and the average asked prices) on
such Trading Day as reported in composite transactions for the
principal U.S. securities exchange on which the Common Stock or such
securities are traded or, if the Common Stock or such securities are
not listed on a U.S. national or regional securities exchange, as
reported by NASDAQ.
"Securities Act" means the Securities Act of 1933, and any statute
successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Securities Intermediary" means The Bank of New York, in its capacity
as securities intermediary under the Pledge Agreement, together with
its successors in such capacity.
"Separate Notes" has the meaning specified in Section 1.1 of the
Pledge Agreement.
"Settlement Date" means any Early Settlement Date or Merger Early
Settlement Date or the Stock Purchase Date.
"Settlement Rate" has the meaning specified in Section 5.1(a).
"Spin-Off" means a dividend or other distribution of shares of Capital
Stock of any class or series, or similar equity interests, of or
relating to a subsidiary or other business unit of the Company.
"Stated Amount" means, with respect to any one Note, Equity Unit or
Stripped Unit, $50.
"Stock Purchase Date" means August 16, 2005.
"Stripped Units" means the collective rights and obligations of a
holder of a Stripped Units Certificate in respect of a 1/20 undivided
beneficial interest in a Treasury Security, subject in each case to
the Pledge thereof, and the related Forward Purchase Contract.
"Stripped Units Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Stripped Units
specified on such certificate, substantially in the form of Exhibit B
hereto.
"Stripped Units Register" and "Stripped Units Registrar" have the
respective meanings specified in Section 3.5(a).
"Subsequent Remarketing Date" means, provided there has been one or
more Failed Remarketings, the date on which the Remarketing Agent has
consummated a remarketing in accordance with Section 5.4 hereof and
Section 1.6 of the Indenture, such date to be no later than the third
Business Day immediately preceding the Stock Purchase Date.
"Supplemental Indenture" means a supplemental indenture dated as of
June 11, 2002, between the Company and the Trustee to the indenture
dated as of May 1, 2001, between the Company and the Trustee.
"Tax Event" means the receipt by the Company of an opinion of
nationally recognized independent tax counsel experienced in such
matters, which may be Xxxxxxx Xxxxxxx & Xxxxxxxx, to the effect that
there is more than an insubstantial risk that interest payable by the
Company on the Notes would not be deductible, in whole or in part, by
the Company for United States federal income tax purposes, as a result
of (a) any amendment to, or change (including any announced proposed
change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or
therein affecting taxation, (b) any amendment to or change in an
official interpretation or application of such laws or regulations by
any legislative body, court, governmental agency or regulatory
authority or (c) any interpretation or pronouncement that provides for
a position with respect to such laws or regulations that differs from
the generally accepted position on June 11, 2002, which amendment,
change or proposed change is effective or which interpretation or
pronouncement is announced on or after June 11, 2002.
"Tax Event Redemption" means, if a Tax Event shall occur, the
redemption of the Notes, at the option of the Company, in whole but
not in part, on not less than 30 days' nor more than 60 days' written
notice.
"Tax Event Redemption Date" means the date upon which a Tax Event
Redemption is to occur.
"Termination Date" means the date, if any, on which a Termination
Event occurs.
"Termination Event" means the occurrence of any of the following
events, at any time on or prior to the Stock Purchase Date:
(i) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company in an
involuntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or a decree
or order adjudging the Company to be insolvent, or approving
a petition seeking reorganization, arrangement, adjustment
or composition of the Company and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive
days; or
(b) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar
official of the Company or of any substantial part of the
property of the Company ordering the winding up or
liquidation of the affairs of the Company; or
(ii) the commencement by the Company of a voluntary proceeding under
any applicable bankruptcy, insolvency, reorganization or other
similar law or of a voluntary proceeding seeking to be
adjudicated insolvent or the consent by the Company to the entry
of a decree or order for relief in an involuntary proceeding
under any applicable bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any insolvency
proceedings against it, or the filling by the Company of a
petition or answer or consent seeking organization or relief
under any applicable law, or the consent by the Company to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee or similar official of the or any substantial part of the
property of the Company or the making by the Company of an
assignment for the benefit of creditors, or the taking of
corporate action by the Company or any in furtherance of any such
action.
"Threshold Appreciation Price" has the meaning specified in Section
5.1(a)(i).
"TIA" means the Trust Indenture Act of 1939, and any statute successor
thereto, in each case as amended from time to time, and the rules and
regulations promulgated thereunder.
"Trading Day" has the meaning specified in Section 5.1(c).
"Transaction Documents" has the meaning specified in Section 7.1(a).
"Treasury Consideration" means the Agent-purchased Treasury
Consideration or the Opt-out Treasury Consideration.
"Treasury Portfolio" means: (i) if a Tax Event Redemption occurs prior
to a successful remarketing of the Notes or the Stock Purchase Date, a
portfolio of zero-coupon U.S. Treasury Securities consisting of
principal or interest strips of U.S. Treasury Securities that mature
on or prior to the Stock Purchase Date in an aggregate amount equal to
the aggregate principal amount of the Notes included in the Equity
Units on the Tax Event Redemption Date and, with respect to each
scheduled interest Payment Date on the Notes that occurs after the Tax
Event Redemption Date and on or before the Stock Purchase Date,
interest or principal strips of U.S. Treasury Securities that mature
on or prior to such Payment Date in an aggregate amount equal to the
aggregate interest payment that would be due on the aggregate
principal amount of the Notes included in the Equity Units on such
Payment Date if the interest rate of the Notes were not reset on the
applicable Remarketing Date, and (ii) solely for purposes of
determining the Treasury Portfolio Purchase Price in the case of a Tax
Event Redemption Date occurring prior to a successful remarketing of
the Notes, a portfolio of zero-coupon U.S. Treasury Securities
consisting of principal or interest strips of U.S. Treasury Securities
that mature on or prior to the Stock Purchase Date in an aggregate
amount equal to the aggregate principal amount of the Notes
outstanding on the Tax Event Redemption Date and with respect to each
scheduled interest Payment Date on the Notes outstanding that occurs
after the Tax Event Redemption Date and on or before the Stock
Purchase Date, interest or principal strips of U.S. Treasury
Securities that mature on or prior to such interest Payment Date in an
aggregate amount equal to the aggregate interest payment that would be
due on the aggregate principal amount of the Notes outstanding on the
Tax Event Redemption Date.
"Treasury Portfolio Purchase Price" means the lowest aggregate price
quoted by a primary U.S. government securities dealer in New York City
to the Quotation Agent on the third Business Day immediately preceding
the Tax Event Redemption Date for the purchase of the Treasury
Portfolio for settlement on the Tax Event Redemption Date.
"Treasury Security" means a zero-coupon U.S. Treasury security (CUSIP
Number 000000XX0) maturing on August 15, 2005 that will pay $1,000 on
such maturity date.
"Trustee" means The Bank of New York, a New York banking corporation,
as trustee under the Indenture, or any successor thereto.
"Underwriting Agreement" means the Underwriting Agreement relating to
the Equity Units dated June 5, 2002 between the Company and the
underwriters named therein.
"Vice-President" means any vice-president, whether or not designated
by a number or a word or words added before or after the title
"vice-president."
Section 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 under any
provision of this Agreement, the Company shall furnish to the Agent an Officer's
Certificate stating that all conditions precedent, if any, provided for in this
Agreement relating to the proposed action have been complied with and, 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 required by any provision of this
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement (other than the Officer's Certificate
provided for in Section 10.5) shall include:
(a) a statement that the individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of 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
(d) a statement as to whether, in the opinion of such individual, such
condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Agent.
-------------------------------------------------
(a) 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.
(b) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 1.4 Acts of Holders; Record Dates.
------------------------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
of such Holders 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 Equity Units or Stripped Units shall be proved by
the Equity Units Register or the Stripped Units Register, as the case may
be.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or suffered to be done
by the Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Units entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Agreement to be given, made or
taken by Holders of Equity Units and Stripped Units. If any record date is
set pursuant to this paragraph, the Holders of the Outstanding Units on
such record date, and no other Holders, shall be entitled to take the
relevant action with respect to the Equity Units or the Stripped Units, as
the case may be, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of
the requisite number of Outstanding Units on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite number of
Outstanding Units on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Agent in
writing and to each Holder of Equity Units and Stripped Units in the manner
set forth in Section 1.6.
(f) 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
Equity Units and Stripped Units in the manner set forth in Section 1.6, on
or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section,
the Company shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the
180th day after the applicable record date.
Section 1.5 Notices.
--------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Agreement to be
made upon, given or furnished to, or filed with:
(a) the Agent by any Holder or by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered,
mailed, first-class postage prepaid, telecopied or delivered by overnight
air courier guaranteeing next day delivery, to the Agent at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (000) 000-0000,
Attention: Corporate Trust Department, or at any other address furnished in
writing by the Agent to the Holders and the Company; or
(b) the Company by the Agent or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered,
mailed, first-class postage prepaid, telecopied or delivered by overnight
air courier guaranteeing next day delivery, to the Company at American
Electric Power Company, Inc., 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000,
telecopy number: (000) 000-0000, Attention: General Counsel, or at any
other address furnished in writing to the Agent and the Holders by the
Company; or
(c) the Collateral Agent by the Agent, the Company or any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered, mailed, first-class postage prepaid, telecopied or
delivered by overnight air courier guaranteeing next day delivery,
addressed to the Collateral Agent at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, telecopy number: (000) 000-0000, Attention: Corporate Trust
Department, or at any other address furnished in writing by the Collateral
Agent to the Agent, the Company and the Holders; or
(d) the Trustee by the Company shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if made, given,
furnished or filed in writing and personally delivered, mailed, first-class
postage prepaid, telecopied or delivered by overnight air courier
guaranteeing next day delivery, addressed to the Trustee at The Bank of New
York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopy number: (212)
328-8243, Attention: Corporate Trust Department, or at any other address
furnished in writing by the Trustee to the Company.
Section 1.6 Notice to Holders; Waiver.
--------------------------------------
(a) 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.
(b) 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.
Section 1.9 Separability Clause.
--------------------------------
In case any provision in this Agreement or in the Equity Units or
Stripped Units shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions hereof and thereof
shall not in any way be affected or impaired thereby.
Section 1.10 Benefits of Agreement.
-----------------------------------
Nothing in this Agreement or in the Equity Units or Stripped Units, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and, to the extent provided hereby, the Holders, any
benefits or any legal or equitable right, remedy or claim under this Agreement.
The Holders from time to time shall be beneficiaries of this Agreement and shall
be bound by all of the terms and conditions hereof and of the Equity Units and
Stripped Units evidenced by their Certificates by their acceptance of delivery
of such Certificates.
Section 1.11 Governing Law.
---------------------------
This Agreement and the Equity Units and Stripped Units shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to its principles of conflicts of laws.
Section 1.12 Legal Holidays.
----------------------------
(a) In any case where any Payment Date shall not be a Business Day,
then (notwithstanding any other provision of this Agreement or the Equity
Units Certificates) payments on the Notes 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 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 Business Day immediately preceding the Payment Date with the same force
and effect as if made on such Payment Date.
(b) If any date on which Contract Adjustment Payments are to be made
on the Forward Purchase Contracts is not a Business Day, then payment of
the Contract Adjustment Payments payable on that date will be made on the
next succeeding day which is a Business Day, and no interest or additional
payment will be paid in respect of the delay. However, if that Business Day
is in the next succeeding calendar year, the payment will be made on the
Business Day immediately preceding the Payment Date with the same force and
effect as if made on that Payment Date.
(c) In any case where the Stock Purchase Date shall not be a Business
Day, then (notwithstanding any other provision of this Agreement or the
Certificates), the Forward Purchase Contracts shall not be performed on
such date, but the Forward Purchase Contracts shall be performed on the
immediately following Business Day with the same force and effect as if
performed on the Stock Purchase Date.
Section 1.13 Counterparts.
--------------------------
This Agreement may be executed in any number of counterparts by the parties
hereto, each of which, when so executed and delivered, shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
Section 1.14 Inspection of Agreement.
-------------------------------------
A copy of this Agreement shall be available at all reasonable times during
normal business hours at the Corporate Trust Office for inspection by any
Holder.
ARTICLE II.
CERTIFICATE FORMS
Section 2.1 Forms of Certificates Generally.
--------------------------------------------
(a) The Equity Units Certificates (including the form of Forward
Purchase Contract forming part of the Equity Units evidenced thereby) shall
be in substantially the form set forth in Exhibit A hereto, with such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed thereon, as may be required by the rules of
any securities exchange or quotation system on which the Equity Units are
listed or quoted for trading or any Depository therefor, or as may,
consistently herewith, be determined by the officers of the Company
executing such Equity Units Certificates, as evidenced by their execution
of the Equity Units Certificates.
(b) The definitive Equity Units Certificates shall be printed or may
be produced in any other manner, all as determined by the officers of the
Company executing such Equity Units Certificates, consistent with the
provisions of this Agreement, as evidenced by their execution thereof.
(c) The Stripped Units Certificates (including the form of Forward
Purchase Contracts forming part of the Stripped Units evidenced thereby)
shall be in substantially the form set forth in Exhibit B hereto, with such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed thereon as may be required by the rules of
any securities exchange or quotation system on which the Stripped Units may
be listed or quoted for trading or any Depository therefor, or as may,
consistently herewith, be determined by the officers of the Company
executing such Stripped Units Certificates, as evidenced by their execution
of the Stripped Units Certificates.
(d) The definitive Stripped Units Certificates shall be printed or may
be produced in any other manner, all as determined by the officers of the
Company executing such Stripped Units Certificates, consistent with the
provisions of this Agreement, as evidenced by their execution thereof.
(e) 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 FORWARD
PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN THE
NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF
THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE FORWARD PURCHASE CONTRACT AGREEMENT."
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the Company or
its agent for registration of transfer, exchange or payment, and any Certificate
issued is registered in the name of Cede & Co., or such other name as requested
by an authorized representative of The Depository Trust Company, and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein."
Section 2.2 Form of Agent's Certificate of Authentication.
----------------------------------------------------------
(a) The form of the Agent's certificate of authentication of the
Equity Units shall be in substantially the form set forth on the form of
the Equity Units Certificates.
(b) The form of the Agent's certificate of authentication of the
Stripped Units shall be in substantially the form set forth on the form of
the Stripped Units Certificates.
ARTICLE III.
THE EQUITY UNITS
Section 3.1 Title and Terms; Denominations.
-------------------------------------------
(a) The aggregate number of Equity Units and Stripped Units, if any,
evidenced by Certificates authenticated, executed on behalf of the Holders
and delivered hereunder is limited to 6,000,000 (6,900,000 if the
Underwriters' (as defined in the Underwriting Agreement) over-allotment
option pursuant to the Underwriting Agreement is exercised in full), except
for Certificates authenticated, executed and delivered upon registration of
transfer of, in exchange for, or in lieu of other Certificates pursuant to
Section 3.4, 3.5, 3.10, 3.13, 3.14, 5.9, 5.10 or 8.5.
(b) The Certificates shall be issuable only in registered form and
only in denominations of a single Equity Unit and any integral multiple
thereof.
Section 3.2 Rights and Obligations Evidenced by the Certificates.
-----------------------------------------------------------------
(a) Each Equity Units Certificate shall evidence the number of Equity
Units specified therein, with each such Equity Units Certificate
representing the ownership by the Holder thereof of a beneficial interest
in a Note or the appropriate Treasury Consideration or Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, subject to the
Pledge of such Note or such Treasury Consideration or Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, by such Holder
pursuant to the Pledge Agreement, and the rights and obligations of the
Holder thereof and the Company under one Forward Purchase Contract. The
Agent as attorney-in-fact for, and on behalf of, the Holder of each Equity
Unit shall pledge, pursuant to the Pledge Agreement, the Note or the
appropriate Treasury Consideration or Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, forming a part of such Equity
Units, to the Collateral Agent and grant to the Collateral Agent a security
interest in the right, title, and interest of such Holder in such Note or
such Treasury Consideration or Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, for the benefit of the Company, to
secure the obligation of the Holder under each Forward Purchase Contract to
purchase the Common Stock of the Company. Prior to the purchase of shares
of Common Stock under each Forward Purchase Contract, such Forward Purchase
Contracts shall not entitle the Holders of Equity Units Certificates to any
of the rights of a holder of shares of Common Stock, including, without
limitation, the right to vote or receive any dividends or other payments or
to consent or to receive notice as stockholders in respect of the meetings
of stockholders or for the election of directors of the Company or for any
other matter, or any other rights whatsoever as stockholders of the
Company.
(b) Each Stripped Units Certificate shall evidence the number of
Stripped Units specified therein, with each such Stripped Units Certificate
representing the ownership by the Holder thereof of a 1/20 undivided
beneficial interest in a Treasury Security, subject to the Pledge of such
interest in such Treasury Security by such Holder pursuant to the Pledge
Agreement, and the rights and obligations of the Holder thereof and the
Company under one Forward Purchase Contract. The Agent as attorney-in-fact
for, and on behalf of, the Holder of each Stripped Unit shall pledge,
pursuant to the Pledge Agreement, the Treasury Security, forming a part of
such Stripped Unit, to the Collateral Agent and grant to the Collateral
Agent a security interest in the right, title and interest of such Holder
in such Treasury Security for the benefit of the Company, to secure the
obligation of the Holder under each Forward Purchase Contract to purchase
shares of Common Stock pursuant to this Agreement and the related Forward
Purchase Contract. Prior to the purchase of shares of Common Stock under
each Forward Purchase Contract, such Forward Purchase Contracts shall not
entitle the Holders of Stripped Units Certificates to any of the rights of
a holder of shares of Common Stock, including, without limitation, the
right to vote or receive any dividends or other payments or to consent or
to receive notice as stockholders in respect of the meetings of
stockholders or for the election of directors of the Company or for any
other matter, or any other rights whatsoever as stockholders of the
Company.
Section 3.3 Execution, Authentication, Delivery and Dating.
-----------------------------------------------------------
(a) Subject to the provisions of Sections 3.13 and 3.14, 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.
(b) The Certificates shall be executed on behalf of the Company by the
Chief Executive Officer, the Chief Financial Officer, the President, any
Vice-President, the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary (or other officer performing similar functions) of
the Company and delivered to the Agent. The signature of any of these
officers on the Certificates may be manual or by facsimile.
(c) 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.
(d) No Forward 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 Forward Purchase Contracts evidenced by such Certificate.
(e) Each Certificate shall be dated the date of its authentication.
(f) 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.
-----------------------------------
(a) 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
set forth in Exhibit A or Exhibit B hereto, as the case may be, with such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the Equity Units
or Stripped Units, as the case may be, are listed, or as may, consistent
herewith, be determined by the officers of the Company executing such
Certificates, as evidenced by their execution of the Certificates.
(b) 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 number
of Equity Units or Stripped Units, as the case may be, as the temporary
Certificate or Certificates so surrendered. Until so exchanged, the
temporary Certificates shall in all respects evidence the same benefits and
the same obligations with respect to the Equity Units or Stripped Units, as
the case may be, evidenced thereby as definitive Certificates.
Section 3.5 Registration; Registration of Transfer and Exchange.
----------------------------------------------------------------
(a) The Agent shall keep at the Corporate Trust Office a register (the
"Equity Units Register") in which, subject to such reasonable regulations
as it may prescribe, the Agent shall provide for the registration of Equity
Units Certificates and of transfers of Equity Units Certificates (the
Agent, in such capacity, the "Equity Units Registrar") and a register (the
"Equity Units Register") in which, subject to such reasonable regulations
as it may prescribe, the Agent shall provide for the registration of the
Equity Units Certificates and transfers of Equity Units Certificates (the
Agent, in such capacity, the "Equity Units Registrar").
(b) 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 like
tenor and denominations, and evidencing a like number of Equity Units or
Stripped Units, as the case may be.
(c) At the option of the Holder, Certificates may be exchanged for
other Certificates, of like tenor and denominations and evidencing a like
number of Equity Units or Stripped Units, as the case may be, upon
surrender of the Certificates to be exchanged at the Corporate Trust
Office. Whenever any Certificates are so surrendered for exchange, the
Company shall execute and deliver to the 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.
(d) All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same number
of Equity Units or Stripped Units, as the case may be, and be entitled to
the same benefits and subject to the same obligations, under this Agreement
as the Equity Units or Stripped Units, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
(e) 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.
(f) 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 3.4, 3.6, 3.9 and 8.5 not involving any transfer.
(g) 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 presented or surrendered for registration of transfer or for
exchange on or after the Business Day immediately preceding the earlier of
the Stock Purchase 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 Stock Purchase Date has occurred, deliver the shares
of Common Stock issuable in respect of the Forward Purchase
Contracts forming a part of the Equity Units or Stripped
Units, as the case may be, evidenced by such Certificate,
(ii) in the case of Equity Units, if a Termination Event shall
have occurred prior to the Stock Purchase Date, transfer the
Notes or the appropriate Treasury Consideration or
Applicable Ownership Interest in the Treasury Portfolio, as
applicable, relating to such Equity Units, or
(iii)in the case of Stripped Units, if a Termination Event shall
have occurred prior to the Stock Purchase Date, transfer the
Treasury Securities relating to such Stripped Units,
in each case subject to the applicable conditions and in accordance with
the applicable provisions of Article V.
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 Depository or
its custodian by, or on behalf of, the Company. Such Global Certificate shall
initially be registered in the applicable Register in the name of Cede & Co.,
the nominee of the Depository, 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 Depository 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 receiving approvals, votes or
consents hereunder) as the Holder of the Equity Units and Stripped Units
and 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. The Clearing Agency will make
book-entry transfers among 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 Equity Units or Stripped Units 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 set forth 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
Depository with respect to the Equity Units and Stripped Units or ceases to be
eligible as a "clearing agency" under the Exchange Act, the Company may, in its
sole discretion, appoint a successor Clearing Agency with respect to the Equity
Units and Stripped Units.
Section 3.9 Definitive Certificates.
------------------------------------
If
(i) a Clearing Agency elects to discontinue its services as
securities Depository with respect to the Equity Units and
Stripped Units or ceases to be eligible as a "clearing agency"
under the Exchange Act and a successor Clearing Agency is not
appointed within 90 days after such discontinuance pursuant to
Section 3.8,
(ii) the Company elects to terminate the book-entry system through the
Clearing Agency with respect to the Equity Units and Stripped
Units, or
(iii)there shall have occurred and be continuing a default by the
Company in respect of its obligations under one or more Forward
Purchase Contracts, this Agreement, the Indenture, the Notes, the
Equity Units, the Pledge Agreement or any other principal
agreements or instruments executed in connection with the
offering of Equity Units
then upon surrender of the Global Certificates representing the Book-Entry
Interests with respect to the Equity Units and Stripped Units by the Clearing
Agency, accompanied by registration instructions, the Company shall cause
definitive Certificates to be delivered to Clearing Agency Participants in
accordance with the instructions of the Clearing Agency. The Company and the
Agent shall not be liable for any delay in delivery of such instructions and may
conclusively rely on and shall be protected in relying on such instructions.
Section 3.10 Mutilated, Destroyed, Lost and Stolen Certificates.
----------------------------------------------------------------
(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 at the cost of the Holder, evidencing the same
number of Equity Units or Stripped Units, 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 at the cost of the Holder
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 Equity Units or Stripped Units,
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 Stock Purchase 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 Stock Purchase Date has occurred, deliver the shares of Common Stock
issuable in respect of the Forward Purchase Contracts forming a part of the
Equity Units or Stripped Units evidenced by such Certificate, or (ii) if a
Termination Event shall have occurred prior to the Stock Purchase Date,
transfer the Notes, the appropriate Treasury Consideration or Applicable
Ownership Interest in the Treasury Portfolio, or the Treasury Securities,
as the case may be, evidenced thereby, in each case subject to the
applicable conditions and in accordance with the applicable provisions of
Article V.
(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.
(e) Every new Certificate issued pursuant to this Section in lieu of
any destroyed, lost or stolen Certificate shall constitute an original
contractual obligation of the Company and of the Holder in respect of the
Equity Units or Stripped Units, as the case may be, evidenced thereby,
whether or not the destroyed, lost or stolen Certificate (and the Equity
Units and Stripped Units evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be
subject to all the obligations of this Agreement equally and
proportionately with any and all other Certificates delivered hereunder.
(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.
-----------------------------------
(a) 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 Equity Units or Stripped Units, as the case may be,
evidenced thereby, for the purpose of receiving interest payments on the
Notes, receiving payment of Contract Adjustment Payments, performance of
the Forward Purchase Contracts and for all other purposes whatsoever
(subject to Section 4.1(a) and 5.2(a)), whether or not any such payments
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.
(b) Notwithstanding the foregoing, with respect to any Global
Certificate, nothing herein shall prevent the Company, the Agent or any
agent of the Company or the Agent from giving effect to any written
certification, proxy or other authorization furnished by any 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. None of the Company, the
Agent, or any agent of the Company or the Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global
Certificate or maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Section 3.12 Cancellation.
--------------------------
(a) All Certificates surrendered (i) for delivery of shares of Common
Stock on or after any Settlement Date; (ii) upon the transfer of Notes, the
appropriate Treasury Consideration or Applicable Ownership Interest in the
Treasury Portfolio, or Treasury Securities, as the case may be, after the
occurrence of a Termination Event; or (iii) upon the registration of a
transfer or exchange of Equity Units or Stripped Units, as the case may be,
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 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
disposed of by the Agent in accordance with its customary procedures.
(b) 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 cancelled or delivered to
the Agent for cancellation.
Section 3.13 Establishment of Stripped Units.
---------------------------------------------
(a) Unless a successful remarketing or a Tax Event Redemption has
occurred, a Holder may separate the Pledged Notes from the related Forward
Purchase Contracts in respect of the Equity Units held by such Holder by
substituting for such Pledged Notes Treasury Securities that will pay, on
the Stock Purchase Date, an amount equal to the aggregate principal amount
of such Notes (a "Collateral Substitution"), at any time from and after the
date of this Agreement and on or prior to the tenth Business Day
immediately preceding the Stock Purchase Date, by (i) depositing with the
Collateral Agent Treasury Securities having an aggregate principal amount
equal to the aggregate Stated Amount of such Equity Units, and (ii)
transferring the related Equity Units to the Agent accompanied by a notice
to the Agent, substantially in the form of Exhibit D hereto, stating that
the Holder has transferred the relevant amount of Treasury Securities to
the Collateral Agent and requesting that the Agent instruct the Collateral
Agent to release the Pledged Notes underlying such Equity Units, whereupon
the Agent shall promptly give such instruction to the Collateral Agent,
substantially in the form of Exhibit C hereto. Notwithstanding the
foregoing, a Holder may not separate the Pledged Notes from the related
Forward Purchase Contracts in respect of the Equity Units held by such
Holder during the periods beginning on the fourth Business Day prior to any
Remarketing Period and ending on the third Business Day after the end of
such Remarketing Period. Upon receipt of the Treasury Securities described
in clause (i) above and the instruction described in clause (ii) above, in
accordance with the terms of the Pledge Agreement, the Collateral Agent
will release to the Agent, on behalf of the Holder, such Pledged Notes from
the Pledge, free and clear of the Company's security interest therein, and
upon receipt thereof the Agent shall promptly:
(i) cancel the related Equity Units;
(ii) transfer the Pledged Notes to the Holder; and
(iii)authenticate, execute on behalf of such Holder and deliver
to such Holder a Stripped Units Certificate executed by the
Company in accordance with Section 3.3 evidencing the same
number of Forward Purchase Contracts as were evidenced by
the cancelled Equity Units.
(b) Holders who elect to separate the Pledged Notes from the related
Forward Purchase Contract and to substitute Treasury Securities for such
Pledged Notes 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.
(c) Holders may make Collateral Substitutions if Treasury Securities
are being substituted for Pledged Notes, only in integral multiples of 20
Equity Units.
(d) In the event a Holder making a Collateral Substitution pursuant to
this Section 3.13 fails to effect a book-entry transfer of the Equity Units
or fails to deliver an Equity Units Certificate to the Agent after
depositing Treasury Securities with the Collateral Agent, the Pledged Notes
constituting a part of such Equity Units, and any distributions on such
Pledged Notes shall be held in the name of the Agent or its nominee in
trust for the benefit of such Holder, until such Equity Units are so
transferred or the Equity Units Certificate is so delivered, as the case
may be, or, with respect to an Equity Units Certificate, such Holder
provides evidence satisfactory to the Company and the Agent that such
Equity Units Certificate has been destroyed, lost or stolen, together with
any indemnity that may be required by the Agent and the Company.
(e) Except as described in this Section 3.13, for so long as the
Forward Purchase Contract underlying an Equity Unit remains in effect, such
Equity Unit shall not be separable into its constituent parts, and the
rights and obligations of the Holder of such Equity Unit in respect of the
Note or the appropriate Treasury Consideration or Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, and the Forward
Purchase Contract comprising such Equity Unit may be acquired, and may be
transferred and exchanged, only as an Equity Unit.
Section 3.14 Reestablishment of Equity Units.
---------------------------------------------
(a) Unless a successful remarketing or a Tax Event Redemption has
occurred, a Holder of Stripped Units may reestablish Equity Units at any
time from and after the date of this Agreement and on or prior to the tenth
Business Day immediately preceding the Stock Purchase Date, by (i)
depositing with the Collateral Agent the Notes then comprising such number
of Equity Units as is equal to such Stripped Units and (ii) transferring
such Stripped Units to the Agent accompanied by a notice to the Agent,
substantially in the form of Exhibit D hereto, stating that the Holder has
transferred the relevant amount of Notes to the Collateral Agent and
requesting that the Agent instruct the Collateral Agent to release the
Pledged Treasury Securities underlying such Stripped Units, whereupon the
Agent shall promptly give such instruction to the Collateral Agent,
substantially in the form of Exhibit C hereto. Notwithstanding the
foregoing, a Holder may not reestablish Equity Units during the periods
beginning on the fourth Business Day prior to any Remarketing Period and
ending on the third Business Day after the end of such Remarketing Period.
Upon receipt of the Notes described in clause (i) above and the instruction
described in clause (ii) above, in accordance with the terms of the Pledge
Agreement, the Collateral Agent will release to the Agent, on behalf of the
Holder, such Pledged Treasury Securities from the Pledge, free and clear of
the Company's security interest therein, and upon receipt thereof the Agent
shall promptly:
(i) cancel the related Stripped Units;
(ii) transfer the Pledged Treasury Securities to the Holder; and
(iii)authenticate, execute on behalf of such Holder and deliver
an Equity Units Certificate executed by the Company in
accordance with Section 3.3 evidencing the same number of
Forward Purchase Contracts as were evidenced by the
cancelled Stripped Units.
(b) Holders of Stripped Units may reestablish Equity Units only in
integral multiples of 20 Stripped Units for 20 Equity Units.
(c) Except as provided in this Section 3.14, for so long as the
Forward Purchase Contract underlying a Stripped Unit remains in effect,
such Stripped Unit shall not be separable into its constituent parts, and
the rights and obligations of the Holder of such Stripped Unit in respect
of the Treasury Security and Forward Purchase Contract comprising such
Stripped Unit may be acquired, and may be transferred and exchanged, only
as a Stripped Unit.
(d) Holders of Stripped Units who reestablish Equity Units shall be
responsible for any fees or expenses payable to the Collateral Agent for
its services as Collateral Agent in respect of the substitution, and the
Company shall not be responsible for any such fees or expenses.
(e) In the event a Holder who reestablishes Equity Units pursuant to
this Section 3.14 fails to effect a book-entry transfer of the Stripped
Units or fails to deliver a Stripped Units Certificate to the Agent after
depositing Pledged Notes with the Collateral Agent, the Treasury Securities
constituting a part of such Stripped Units, and any distributions on such
Treasury Securities shall be held in the name of the Agent or its nominee
in trust for the benefit of such Holder, until such Stripped Units are so
transferred or the Stripped Units Certificate is so delivered, as the case
may be, or, with respect to a Stripped Units Certificate, such Holder
provides evidence satisfactory to the Company and the Agent that such
Stripped Units Certificate has been destroyed, lost or stolen, together
with any indemnity that may be required by the Agent and the Company.
Section 3.15 Transfer of Collateral Upon Occurrence of Termination Event.
-------------------------------------------------------------------------
Upon the occurrence of a Termination Event and the transfer to the Agent by
the Collateral Agent of the Notes, the appropriate Treasury Consideration or
Applicable Ownership Interest in the Treasury Portfolio, or the Treasury
Securities, as the case may be, underlying the Equity Units or the Stripped
Units, as the case may be, pursuant to the terms of the Pledge Agreement, the
Agent shall request transfer instructions with respect to such Notes or the
appropriate Treasury Consideration or Applicable Ownership Interest in the
Treasury Portfolio, or Treasury Securities, as the case may be, from each Holder
by written request mailed to such Holder at its address as it appears in the
Equity Units Register or the Stripped Units Register, as the case may be. Upon
book-entry transfer of the Equity Units or Stripped Units or delivery of an
Equity Units Certificate or Stripped Units Certificate to the Agent with such
transfer instructions, the Agent shall transfer the Notes, the appropriate
Treasury Consideration or Applicable Ownership Interest in the Treasury
Portfolio, or Treasury Securities, as the case may be, underlying such Equity
Units or Stripped Units, as the case may be, to such Holder by book-entry
transfer, or other appropriate procedures, in accordance with such instructions.
In the event a Holder would be entitled to receive less than $1,000 principal
amount at maturity of any Treasury security, the Agent shall dispose of such
Treasury security for cash and deliver such cash to the Holder. In the event a
Holder of Equity Units or Stripped Units fails to effect such transfer or
delivery, the Notes, the appropriate Treasury Consideration or Applicable
Ownership Interest in the Treasury Portfolio or Treasury Securities, as the case
may be, underlying such Equity Units or Stripped Units, as the case may be, and
any distributions thereon, shall be held in the name of the Agent or its nominee
in trust for the benefit of such Holder, until (i) such Equity Units or Stripped
Units are transferred or the Equity Units Certificate or Stripped Units
Certificate is surrendered or such Holder provides satisfactory evidence that
such Equity Units Certificate or Stripped Units Certificate has been destroyed,
lost or stolen, together with any indemnity that may be required by the Agent
and the Company; and (ii) 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 Equity Units or Stripped Units, as the case may be, 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
Forward Purchase Contract by the Company, any receiver, liquidator or person or
entity performing similar functions or its trustee 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 NOTES
Section 4.1 Payment of Interest; Rights to Interest Payments Preserved; Notice.
-------------------------------------------------------------------------------
(a) A payment on any Note, Treasury Consideration or Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, which is
paid on any Payment Date other than a Payment Date with respect to the
Stated Amount due on Treasury Consideration or Applicable Ownership
Interest in the Treasury Portfolio shall, subject to receipt thereof by the
Agent from the Collateral Agent (if the Collateral Agent is the registered
owner thereof) as provided by the terms of the Pledge Agreement, be paid to
the Person in whose name the Equity Units Certificate (or one or more
Predecessor Equity Units Certificates) of which such Note or the
appropriate Treasury Consideration or Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, is a part is registered at the
close of business on the Record Date for such Payment Date.
(b) Each Equity Units Certificate evidencing Notes delivered under
this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Equity Units Certificate shall carry the rights to
interest accrued and unpaid which were carried by the Notes and Treasury
Consideration or Applicable Ownership Interest in the Treasury Portfolio,
as the case may be, underlying such other Equity Units Certificate.
(c) In the case of any Equity Units with respect to which Early
Settlement of the underlying Forward Purchase Contract is effected on an
Early Settlement Date, Merger Early Settlement of the underlying Forward
Purchase Contract is effected on a Merger Early Settlement Date, Cash
Settlement is effected on the seventh Business Day immediately preceding
the Stock Purchase Date, or a Collateral Substitution is effected, in each
case on a date that is after any Record Date and on or prior to the next
succeeding Payment Date, payments on the Note or the appropriate Treasury
Consideration or Applicable Ownership Interest in the Treasury Portfolio,
as the case may be, underlying such Equity Units otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such
Early Settlement, Merger Early Settlement, Cash Settlement or Collateral
Substitution, as the case may be, and such payments shall, subject to
receipt thereof by the Agent, be payable to the Person in whose name the
Equity Units Certificate (or one or more Predecessor Equity Units
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 Equity Units with respect to which Early
Settlement, Merger Early Settlement or Cash Settlement of the underlying
Forward Purchase Contract is effected, or with respect to which a
Collateral Substitution has been effected, payments on the related Notes or
payments on the appropriate Treasury Consideration or Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, that would
otherwise be payable after the applicable Settlement Date or after such
Collateral Substitution, as the case may be, shall not be payable hereunder
to the Holder of such Equity Units; provided, that to the extent that such
Holder continues to hold the Separate Notes that formerly comprised a part
of such Holder's Equity Units, such Holder shall be entitled to receive the
payments on such Separate Notes.
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
Notes but only to the extent instructed by the Holders as described below. Upon
receipt of notice of any meeting at which holders of Notes are entitled to vote
or upon any solicitation of consents, waivers or proxies of holders of Notes,
the Agent shall, as soon as practicable thereafter, mail to the Holders of
Equity Units 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 Notes entitled to vote) shall be
entitled to instruct the Agent as to the exercise of the voting rights
pertaining to the Pledged Notes underlying their Equity Units and (c) stating
the manner in which such instructions may be given. Upon the written request of
the Holders of Equity Units 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 number of Pledged Notes as
to which any particular voting instructions are received. In the absence of
specific instructions from the Holder of an Equity Unit, the Agent shall abstain
from voting the Pledged Note underlying such Equity Units. The Company hereby
agrees, if applicable, to solicit Holders of Equity Units to timely instruct the
Agent in order to enable the Agent to vote such Pledged Notes.
Section 4.3 Tax Event Redemption.
---------------------------------
Upon the occurrence of a Tax Event Redemption prior to the earlier of a
successful remarketing of the Notes or the Stock Purchase Date, the Company may
elect to instruct in writing the Collateral Agent to apply, and upon such
written instruction, the Collateral Agent shall apply, out of the aggregate
Redemption Price for the Notes that are components of Equity Units, an amount
equal to the aggregate Redemption Amount for the Notes that are components of
Equity Units to purchase on behalf of the Holders of Equity Units the Treasury
Portfolio and promptly remit the remaining portion of such aggregate Redemption
Price to the Agent for payment to the Holders of such Equity Units. The Treasury
Portfolio will be substituted for the Pledged Notes, and will be pledged to the
Collateral Agent in accordance with the terms of the Pledge Agreement to secure
the obligation of each Holder of an Equity Units to purchase the Common Stock
under the Forward Purchase Contract constituting a part of such Equity Units.
Following the occurrence of a Tax Event Redemption prior to the earlier of a
successful remarketing of the Notes or the Stock Purchase Date, the Holders of
Equity Units and the Collateral Agent shall have such security interests, rights
and obligations with respect to the Treasury Portfolio as the Holder of Equity
Units and the Collateral Agent had in respect of the Notes, as the case may be,
subject to the Pledge thereof as provided in Articles II, III, IV, V and VI of
the Pledge Agreement, and any reference herein or in the Certificates to the
Note shall be deemed to be a reference to such Treasury Portfolio and any
reference herein or in the Certificates to interest on the Notes shall be deemed
to be a reference to corresponding distributions on the Treasury Portfolio. The
Company may cause to be made in any Equity Units Certificates thereafter to be
issued such change in phraseology and form (but not in substance) as may be
appropriate to reflect the substitution of the Treasury Portfolio for Notes as
collateral.
The Company shall cause notice of any Tax Event Redemption to be mailed, at
least 30 calendar days but not more than 60 calendar days before such Tax Event
Redemption Date, to each Holder of Equity Units including Notes to be redeemed
at its registered address.
Upon the occurrence of a Tax Event Redemption after the earlier of a
successful remarketing of the Notes or the Stock Purchase Date, the Redemption
Price will be payable in cash to the holders of the Notes.
ARTICLE V.
THE FORWARD PURCHASE CONTRACTS; THE REMARKETING
Section 5.1 Purchase of Shares of Common Stock.
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(a) Each Forward Purchase Contract shall, unless an Early Settlement
has occurred in accordance with Section 5.9, or a Merger Early Settlement
has occurred in accordance with Section 5.10, obligate the Holder of the
related Equity Units or Stripped Units, as the case may be, to purchase,
and the Company to sell, on the Stock Purchase Date at a price equal to $50
(the "Purchase Price"), a number of newly issued shares of Common Stock
equal to the Settlement Rate unless, on or prior to the Stock Purchase
Date, there shall have occurred a Termination Event with respect to the
Units of which such Forward Purchase Contract is a part. The "Settlement
Rate" is equal to,
(i) if the Applicable Market Value (as defined below) is greater
than or equal to $49.08 (the "Threshold Appreciation
Price"), 1.0187 shares of Common Stock per Forward Purchase
Contract,
(ii) if the Applicable Market Value is less than the Threshold
Appreciation Price, but is greater than $40.90, the number
of shares of Common Stock per Forward Purchase Contract
equal to $50 divided by the Applicable Market Value, and
(iii)if the Applicable Market Value is equal to or less than
$40.90, 1.2225 shares of Common Stock per Forward 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 5.12, no fractional shares of Common Stock will
be issued upon settlement of Forward Purchase Contracts.
Promptly after the calculation of the Settlement Rate and the
Applicable Market Value, the Company shall give the Agent notice thereof.
All calculations and determinations of the Settlement Rate and the
Applicable Market Value shall be made by the Company or its agents based on
their good faith calculations, and the Agent shall have no responsibility
with respect thereto.
(b) The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Stock Purchase
Date. The "Closing Price" of the Common Stock on any date of determination
means the closing sale price (or, if no closing price is reported, the last
reported sale price) of the Common Stock on the New York Stock Exchange
(the "NYSE") on such date or, if the Common Stock is not listed for trading
on the NYSE on any such date, as reported in the composite transactions for
the principal United States securities exchange on which the Common Stock
is so listed, or if the Common Stock is not so listed on a United States
national or regional securities exchange, as reported by The NASDAQ Stock
Market, or, if the Common Stock is not so reported, the last quoted bid
price for the Common Stock in the over-the-counter market as reported by
the National Quotation Bureau or similar organization, or, if such bid
price is not available, the market value of the Common Stock on such date
as determined by a nationally recognized independent investment banking
firm retained for this purpose by the Company. A "Trading Day" means a day
on which the Common Stock (A) is not suspended from trading on any national
or regional securities exchange or association or over-the-counter market
at the close of business and (B) has traded at least once on the national
or regional securities exchange or association or over-the-counter market
that is the primary market for the trading of the Common Stock.
(c) Each Holder of Equity Units or Stripped Units, as the case may be,
by its acceptance thereof, irrevocably authorizes the Agent to enter into
and perform the related Forward 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 Forward Purchase
Contracts, and consents to the provisions hereof, irrevocably authorizes
the Agent as its attorney-in-fact to enter into and perform the Pledge
Agreement on its behalf as its attorney-in-fact, and consents to and agrees
to be bound by the Pledge of the Notes, the appropriate Treasury
Consideration or Applicable Ownership Interest in the Treasury Portfolio,
or the Treasury Securities pursuant to the Pledge Agreement; provided that
upon a Termination Event, the rights of the Holder of such Equity Units or
Stripped Units, as the case may be, under the Forward Purchase Contract may
be enforced without regard to any other rights or obligations. Each Holder
of Equity Units or Stripped Units, as the case may be, 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, payments in respect of the Notes, the appropriate Treasury
Consideration or Applicable Ownership Interest in the Treasury Portfolio,
or the Treasury Securities, to be paid upon settlement of such Holder's
obligations to purchase Common Stock under the Forward Purchase Contract,
shall be paid on the Stock Purchase Date by the Collateral Agent to the
Company in satisfaction of such Holder's obligations under such Forward
Purchase Contract and such Holder shall acquire no right, title or interest
in such payment.
(d) 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) under the terms of this Agreement, the Forward Purchase
Contracts underlying such Certificate and the Pledge Agreement, and the
transferor shall be released from the obligations under this Agreement, the
Forward Purchase Contracts underlying the Certificates so transferred and
the Pledge Agreement. The Company covenants and agrees, and each Holder of
a Certificate, by its acceptance thereof, likewise covenants and agrees, to
be bound by the provisions of this paragraph.
Section 5.2 Contract Adjustment Payments.
-----------------------------------------
(a) Contract Adjustment Payments shall accrue on each Forward Purchase
Contract constituting a part of an Equity Unit or Stripped Unit at 3.50%
per year of the Stated Amount of such Equity Unit or Stripped Unit, from
June 11, 2002 through and including the Stock Purchase Date, provided that
no Contract Adjustment Payment shall accrue after an Early Settlement or
Merger Early Settlement. Subject to Section 5.3 herein, the Company shall
pay, on each Payment Date, the Contract Adjustment Payments, if any,
payable in respect of each Forward 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 immediately preceding such
Payment Date in such coin or currency of the United States as at the time
of payment shall be legal tender for payments. The Contract Adjustment
Payments, if any, will be payable at the office in New York, New York,
maintained for that purpose or, at the option of the Company, by check
mailed to the address of the Person entitled thereto at such Person's
address as it appears on the Register or by wire transfer to the account
designated to the Agent by a prior written notice by such Person delivered
at least five Business Days prior to the applicable Payment Date.
(b) Upon the occurrence of a Termination Event, the Company's
obligation to pay Contract Adjustment Payments (including any accrued
Deferred Contract Adjustment Payments), if any, shall cease.
(c) 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 re-establishment of an Equity Unit) any
other Certificate shall carry the rights to Contract Adjustment Payments,
if any, accrued and unpaid, and to accrue Contract Adjustment Payments, if
any, which were carried by the Forward Purchase Contracts underlying such
other Certificates.
(d) Subject to Sections 5.9 and 5.10, in the case of any Equity Units
or Stripped Units, as the case may be, with respect to which Early
Settlement or Merger Early Settlement of the underlying Forward Purchase
Contract is effected on an Early Settlement Date or a Merger Early
Settlement Date, respectively, or in respect of which Cash Settlement of
the underlying Forward Purchase Contract is effected on the seventh
Business Day immediately preceding the Stock Purchase Date, or with respect
to which a Collateral Substitution or an establishment or re-establishment
of an Equity Units pursuant to Section 3.14 is effected, in each case on a
date that is after any Record Date and on or prior to the next succeeding
Payment Date, Contract Adjustment Payments on the Forward Purchase Contract
underlying such Equity Units or Stripped Units, as the case may be,
otherwise payable on such Payment Date shall be payable on such Payment
Date notwithstanding such Cash Settlement, Early Settlement, Merger Early
Settlement, Collateral Substitution or establishment or re-establishment of
Equity Units, and such Contract Adjustment Payments shall be paid to the
Person in whose name the Certificate evidencing such Equity Units or
Stripped Units (or one or more Predecessor Certificates) is registered at
the close of business on such Record Date. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any Equity
Units or Stripped Units with respect to which Cash Settlement, Early
Settlement, Merger Early Settlement of the underlying Forward Purchase
Contract is effected on the seventh Business Day immediately preceding the
Stock Purchase Date, an Early Settlement Date or Merger Early Settlement
Date, as the case may be, or with respect to which a Collateral
Substitution or an establishment or re-establishment of an Equity Unit has
been effected, Contract Adjustment Payments, if any, that would otherwise
be payable after the Early Settlement Date, or Merger Early Settlement
Date, Collateral Substitution or such establishment or re-establishment
with respect to such Forward Purchase Contract shall not be payable.
Section 5.3 Deferral of Contract Adjustment Payments.
-----------------------------------------------------
(a) The Company shall have the right, at any time prior to the Stock
Purchase Date, to defer the payment of any or all of the Contract
Adjustment Payments otherwise payable on any Payment Date, but only if the
Company shall give the Holders and the Agent written notice of its election
to defer each such deferred Contract Adjustment Payment (specifying the
amount to be deferred) at least ten Business Days prior to the earlier of
(i) the next succeeding Payment Date or (ii) the date the Company is
required to give notice of the Record Date or Payment Date with respect to
payment of such Contract Adjustment Payments to the NYSE or other
applicable self-regulatory organization or to Holders of the Equity Units
and Stripped Units, but in any event not less than one Business Day prior
to such Record Date. Any Contract Adjustment Payments so deferred shall, to
the extent permitted by law, bear additional Contract Adjustment Payments
thereon at the rate of 5.75% per year (computed on the basis of a 360-day
year of twelve 30-day months), compounding on each succeeding Payment Date,
until paid in full (such deferred installments of Contract Adjustment
Payments, if any, together with the additional Contract Adjustment Payments
accrued thereon, being referred to herein as the "Deferred Contract
Adjustment Payments"). Deferred Contract Adjustment Payments, if any, shall
be due on the next succeeding Payment Date except to the extent that
payment is deferred pursuant to this Section 5.3. No Contract Adjustment
Payments may be deferred to a date that is after the Stock Purchase Date
and no such deferral period may end other than on a Payment Date. If the
Forward Purchase Contracts are terminated upon the occurrence of a
Termination Event, the Holder's right to receive Contract Adjustment
Payments, if any, and Deferred Contract Adjustment Payments, will
terminate. If Deferred Contract Adjustment Payments are deferred until the
Stock Purchase Date, all payments in respect thereof shall be made in cash
on the Stock Purchase Date.
(b) In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Forward Purchase Contracts until a
Payment Date prior to the Stock Purchase Date, then all Deferred Contract
Adjustment Payments, if any, shall be payable to the registered Holders as
of the close of business on the Record Date immediately preceding such
Payment Date.
(c) In the event the Company exercises its option to defer the payment
of Contract Adjustment Payments then, until the Deferred Contract
Adjustment Payments have been paid, the Company shall not declare or pay
dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of the
Company's Common Stock other than:
(i) purchases, redemptions or acquisitions of shares of Common
Stock in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of
employees, officers or directors or a stock purchase or
dividend reinvestment plan, or the satisfaction by the
Company of its obligations pursuant to any contract or
security outstanding on the date the Company exercises its
right to defer the Contract Adjustment Payments;
(ii) as a result of a reclassification of the Company's Capital
Stock or the exchange or conversion of one class or series
of the Company's Capital Stock for another class or series
of the Company's Capital Stock;
(iii)the purchase of fractional interests of the Common Stock
pursuant to the conversion or exchange provisions of such
Common Stock or the security being converted or exchanged;
(iv) dividends or distributions in any series of the Company's
Common Stock (or rights to acquire Common Stock) or
repurchases, acquisitions or redemptions of Common Stock in
connection with the issuance or exchange of the Common Stock
(or securities convertible into or exchangeable for shares
of the Company's Common Stock); or
(v) redemptions, exchanges or repurchases of any rights
outstanding under a shareholder rights plan or the
declaration or payment thereunder of a dividend or
distribution of or with respect to rights in the future.
Section 5.4 Payment of Purchase Price; Remarketing.
---------------------------------------------------
(a) Unless a Tax Event Redemption, successful remarketing, Termination
Event, Merger Early Settlement or Early Settlement has occurred, each
Holder of an Equity Unit may pay in cash ("Cash Settlement") the Purchase
Price for the shares of Common Stock to be purchased pursuant to a Forward
Purchase Contract if such Holder notifies the Agent by use of a notice in
substantially the form of Exhibit E hereto of its intention to make a Cash
Settlement. Such notice shall be made on or prior to 5:00 p.m., New York
City time, on the tenth Business Day immediately preceding the Stock
Purchase Date. The Agent shall promptly notify the Collateral Agent of the
receipt of such a notice from a Holder intending to make a Cash Settlement.
(i) A Holder of an Equity Unit who has so notified the Agent of
its intention to make a Cash Settlement is required to pay
the Purchase Price to the Collateral Agent prior to 11:00
a.m., New York City time, on the seventh Business Day
immediately preceding the Stock Purchase Date in lawful
money of the United States by certified or cashiers' check
or wire transfer, in each case payable to or upon the order
of the Company. Any cash received by the Collateral Agent
will be paid to the Company on the Stock Purchase Date in
settlement of the Forward Purchase Contract in accordance
with the terms of this Agreement and the Pledge Agreement.
(ii) If a Holder of an Equity Unit fails to notify the Agent of
its intention to make a Cash Settlement in accordance with
this paragraph (a), the Holder shall be deemed to have
consented to the disposition of the Pledged Notes pursuant
to the remarketing as described in paragraph 5.4(b) below.
If a Holder of an Equity Unit does notify the Agent as
provided in this paragraph (a) of its intention to pay the
Purchase Price in cash, but fails to make such payment as
required by paragraph (a)(i) above, the Holder shall be
deemed to have consented to the disposition of the Pledged
Notes pursuant to the remarketing as described in paragraph
5.4 (b) below.
(b) The Company has engaged the Remarketing Agent to sell the Notes of
(A) Holders of Equity Units, other than Holders that have elected not to
participate in the remarketing pursuant to the procedures set forth in
subsection (g) below, and (B) holders of Separate Notes that have elected
to participate in the remarketing pursuant to the procedures set forth in
Section 4.5(d) of the Pledge Agreement. On the seventh Business Day prior
to the Remarketing Date, the Agent shall give Holders of Equity Units and
holders of Separate Notes notice of the remarketing (the form of which
notice to be provided by the Company) in a daily newspaper in the English
language of general circulation in The City of New York, which is expected
to be The Wall Street Journal, including the specific U.S. Treasury
security or securities (including the CUSIP number and/or the principal
terms of such Treasury security or securities) described in subsection (g)
below, that must be delivered by Holders of Equity Units that elect not to
participate in the remarketing pursuant to subsection (g) below, no later
than 10:00 a.m., New York City time, on the fourth Business Day preceding
the Remarketing Date or the first day of any Subsequent Remarketing Period,
as applicable. The Agent shall notify, by 10:00 a.m., New York City time,
on the third Business Day preceding the Remarketing Date or the first day
of any subsequent Remarketing Period, as applicable, the Remarketing Agent
and the Collateral Agent of the aggregate number of Notes of Equity Units
Holders to be remarketed. On the third Business Day immediately preceding
the Remarketing Date or the first day of any subsequent Remarketing Period,
as applicable, no later than by 10:00 a.m. New York City time, pursuant to
the terms of the Pledge Agreement, the Custodial Agent will notify the
Remarketing Agent of the aggregate number of Separate Notes to be
remarketed. On the third Business Day immediately preceding the Remarketing
Date or the first day of any subsequent Remarketing Period, as applicable,
the Collateral Agent and the Custodial Agent, pursuant to the terms of the
Pledge Agreement, will deliver for remarketing to the Remarketing Agent all
Notes to be remarketed.
(c) Upon receipt of such notice from the Agent and the Custodial Agent
and such Notes from the Collateral Agent and the Custodial Agent, the
Remarketing Agent will, on the Remarketing Date, use its commercially
reasonable best efforts to (i) establish a rate of interest that, in the
opinion of the Remarketing Agent, will, when applied to the outstanding
Notes, enable the then current aggregate market value of the Notes to have
a value equal to approximately, but not less than, 100.25% of the
Remarketing Value as of the Remarketing Date or as of any Subsequent
Remarketing Date, as the case may be (the "Reset Rate") and (ii) sell such
Notes on such date at a price equal to approximately, but not less than,
100.25% of the Remarketing Value.
(d) If the remarketing occurs prior to the fourth Business Day
preceding the Stock Purchase Date, the Remarketing Agent will use the
proceeds from a successful remarketing to purchase the appropriate U.S.
Treasury securities (the "Agent-purchased Treasury Consideration") with the
CUSIP numbers, if any, selected by the Remarketing Agent, described in
clauses (1) and (2) of the definition of Remarketing Value related to the
Notes of Holders of Equity Units or that were remarketed. On or prior to
the third Business Day following the Remarketing Date or any Subsequent
Remarketing Date the Remarketing Agent shall deliver such Agent-purchased
Treasury Consideration to the Agent, which shall thereupon deliver such
Agent-purchased Treasury Consideration to the Collateral Agent. The
Collateral Agent, for the benefit of the Company, will thereupon apply such
Agent-purchased Treasury Consideration, in accordance with the Pledge
Agreement, to secure such Holders' obligations under the Forward Purchase
Contracts. If the remarketing occurs on or after the fourth Business Day
preceding the Stock Purchase Date, the proceeds of the remarketing will not
be used to purchase the Agent-purchased Treasury Consideration, but such
proceeds will be paid to the Agent in direct settlement of the obligations
of the Holders under the related Forward Purchase Contracts to purchase
Common Stock of the Company. The Remarketing Agent will deduct as a
remarketing fee an amount not exceeding 25 basis points (0.25%) of the
total proceeds from the remarketing (the "Remarketing Fee"). The
Remarketing Agent will remit (1) the remaining portion of the proceeds from
the remarketing attributable to the Separate Notes to the Custodial Agent
for the benefit of the holders of Separate Notes that were remarketed and
(2) the remaining portion of the proceeds, less those proceeds used to
purchase the Agent-purchased Treasury Consideration or to pay the Company
in direct settlement of the Holders' obligations under the Forward Purchase
Contracts, to the Agent for payment to the Holders of the Equity Units that
were remarketed, all determined on a pro rata basis, in each case, on or
prior to the third Business Day following such Remarketing Date or
Subsequent Remarketing Date. Holders whose Notes are so remarketed will not
otherwise be responsible for the payment of any Remarketing Fee in
connection therewith.
(e)
(i) If, in spite of using its commercially reasonable best
efforts, the Remarketing Agent cannot establish the Reset
Rate and remarket the Notes included in the remarketing at a
price equal to approximately, but not less than, 100.25% of
the Remarketing Value, the Remarketing Agent will again
attempt to establish the Reset Rate and remarket the Notes
included in the remarketing at a price equal to
approximately, but not less than, 100.25% of the Remarketing
Value on each of the two immediately following Business
Days. If the Remarketing Agent cannot remarket the Notes
included in the remarketing at a price equal to
approximately, but not less than, 100.25% of the Remarketing
Value on either of those days, it will attempt to establish
the Reset Rate and remarket the Notes included in the
remarketing at a price equal to approximately, but not less
than, 100.25% of the Remarketing Value on each of the three
Business Days immediately preceding June 16, 2005. If the
Remarketing Agent cannot remarket the Notes included in the
remarketing at a price equal to approximately, but not less
than, 100.25% of the Remarketing Value on any of those days,
it will attempt to establish the Reset Rate and remarket the
Notes included in the remarketing at a price equal to
approximately, but not less than, 100.25% of the Remarketing
Value on each of the three Business Days immediately
preceding July 16, 2005. If the Remarketing Agent cannot
establish the Reset Rate and remarket the Notes included in
the remarketing at a price equal to approximately, but not
less than, 100.25% of the Remarketing Value either on any of
the two Business Days immediately following the Remarketing
Date or on any of the three Business Days immediately
preceding June 16, 2005 or on any of the three Business Days
immediately preceding July 16, 2005, the remarketing in each
period will be deemed to have failed (each, a "Failed
Remarketing"). If the Remarketing Agent cannot establish the
Reset Rate and remarket the Notes included in the
remarketing at a price equal to approximately, but not less
than, 100.25% of the Remarketing Value on any of the three
Business Days immediately preceding July 16, 2005, the
Remarketing Agent will further attempt to establish the
Reset Rate and remarket the Notes included in the
remarketing at a price equal to approximately, but not less
than, 100.25% of the Remarketing Value on each of the three
Business Days immediately preceding August 12, 2005. If, in
spite of using its commercially reasonable best efforts, the
Remarketing Agent fails to remarket the Notes underlying the
Equity Units at a price equal to approximately, but not less
than, 100.25% of the Remarketing Value in accordance with
the terms of the Pledge Agreement by 4:00 p.m., New York
City time, on the third Business Day immediately preceding
the Stock Purchase Date, a "Last Failed Remarketing" will be
deemed to have occurred.
(ii) Within three Business Days following the end of the Last
Failed Remarketing, the Remarketing Agent shall return any
Notes delivered to it to the Collateral Agent and the
Custodial Agent, as applicable, together with written notice
from the Remarketing Agent of such Last Failed Remarketing.
The Collateral Agent, for the benefit of the Company, may
exercise its rights as a secured party with respect to such
Notes, including those actions specified in Section 5.4(f)
below, and the Holders of Equity Units, by their acceptance
of the Equity Units shall be deemed to have agreed to such
exercise by the Collateral Agent in such case; provided,
that if upon the Last Failed Remarketing, the Collateral
Agent delivers any Notes to the Company in full satisfaction
of the Holder's obligation under the related Forward
Purchase Contracts, any accumulated and unpaid interest on
such Notes will become payable by the Company to the Agent
for payment to the Holder of the Equity Units to which such
Notes relate. Such payment will be made by the Company on or
prior to 11:00 a.m., New York City time, on the Stock
Purchase Date in lawful money of the United States by
certified or cashier's check or wire transfer in immediately
available funds payable to or upon the order of the Agent.
The Company will publish notice by means of Bloomberg and
Reuters newswires of any Remarketing Period during which no
successful remarketing occurred, such notice to be published
not later than the fourth Business Day following the end of
such Remarketing Period. The Company will also cause a
notice of the Last Failed Remarketing to be published on the
fourth Business Day following the date of the Last Failed
Remarketing in a daily newspaper in the English language of
general circulation in The City of New York, which is
expected to be The Wall Street Journal.
(f) With respect to any Notes which constitute part of Equity Units
which are subject to the Last 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 Section 5.4 (j)
below, may, among other things, permit the Company to cause the Notes to be
sold or to retain and cancel such Notes, in either case, in full
satisfaction of the Holders' obligations under the Forward Purchase
Contracts and the Holders of the Equity Units, by their acceptance of the
Equity Units shall be deemed to have agreed to such action by the
Collateral Agent.
(g) A Holder of Equity Units may elect not to participate in the
remarketing and retain the Notes underlying such Equity Units by notifying
the Agent of such election and delivering the specific U.S. Treasury
security or securities (including the CUSIP number and/or the principal
terms of such security or securities) identified by the Agent that
constitute the U.S. Treasury securities described in clauses (1) and (2) of
the definition of Remarketing Value relating to the retained Notes (as if
only such Notes were being remarketed) (the "Opt-out Treasury
Consideration") to the Agent not later than 10:00 a.m. on the fourth
Business Day prior to the Remarketing Date (or, in the case of a Failed
Remarketing, not later than 10:00 a.m. on the fourth Business Day
immediately prior to the subsequent Remarketing Period). Upon receipt
thereof by the Agent, the Agent shall deliver such Opt-out Treasury
Consideration to the Collateral Agent, which will, for the benefit of the
Company, thereupon apply such Opt-out Treasury Consideration to secure such
Holder's obligations under the Forward Purchase Contracts. On the first
Business Day immediately preceding the Remarketing Date (or, in the case of
a Failed Remarketing, the subsequent Remarketing Period), the Collateral
Agent, pursuant to the terms of the Pledge Agreement, will deliver the
Pledged Notes of such Holder to the Agent. Within three Business Days
following any Remarketing Period, (A) if the remarketing was successful,
the Agent shall distribute such Notes to the new holders thereof, and (B)
if there was a Failed Remarketing, the Agent will deliver such Notes to the
Collateral Agent, which will, for the benefit of the Company, thereupon
apply such Notes to secure such Holders' obligations under the Forward
Purchase Contracts and return the Opt-out Treasury Consideration delivered
by such Holders to such Holders. A Holder that does not so deliver the
Opt-out Treasury Consideration pursuant to this clause (g) shall be deemed
to have elected to participate in the remarketing.
(h) Upon the maturity of the Pledged Treasury Securities underlying
the Stripped Units and the Pledged Treasury Consideration or Pledged
Applicable Ownership Interest in the Treasury Portfolio, as the case may
be, underlying the Equity Units, on the Stock Purchase Date, the Collateral
Agent shall remit to the Company an amount equal to the aggregate Purchase
Price applicable to such Units, as payment for the Common Stock issuable
upon settlement thereof without receiving any instructions from the Holders
of such Units. In the event the payments in respect of the Pledged Treasury
Securities, Pledged Treasury Consideration or Pledged Applicable Ownership
Interest in the Treasury Portfolio underlying a Unit are in excess of the
Purchase Price under the Forward Purchase Contract being settled thereby,
the Collateral Agent will distribute such excess to the Agent for the
benefit of the Holder of such Units when received.
(i) Any distribution to Holders of excess funds and interest
described in Section 5.4(c) and (d) above shall be payable
at the Office of the Agent in The City of New York
maintained for that purpose or, at the option of the Holder
or the holder of Separate Notes, as applicable, by check
mailed to the address of the Person entitled thereto at such
address as it appears on the relevant Register or by wire
transfer to an account specified by the Holder or the holder
of Separate Notes, as applicable.
(j) The obligations of each Holder to pay the Purchase Price are
non-recourse obligations and except to the extent paid by Cash Settlement,
Early Settlement or Merger Early Settlement, are payable solely out of the
proceeds of any Collateral pledged to secure the obligations of the Holder,
and in no event will any Holder be liable for any deficiency between such
proceeds and the Purchase Price.
(k) Notwithstanding anything to the contrary herein, the Company shall
not be obligated to issue any Common Stock in respect of a Forward Purchase
Contract or deliver any certificates therefor to the Holder of the related
Equity Units or Stripped Units, as the case may be, unless the Company
shall have received payment in full for the shares of Common Stock to be
purchased thereunder by such Holder in the manner herein set forth.
(l) In the event of a successful remarketing, the interest rate on all
of the outstanding Notes (whether or not included in the remarketing) shall
be adjusted to the Reset Rate.
Section 5.5 Issuance of Shares of Common Stock.
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Unless a Termination Event shall have occurred on or prior to the Stock
Purchase Date or an Early Settlement or a Merger Early Settlement shall have
occurred with respect to all of the outstanding Units, on the Stock Purchase
Date, upon its receipt of payment for the shares of Common Stock purchased by
the Holders pursuant to the provisions of this Article and subject to Section
5.4, the Company shall issue and deposit with the Agent, for the benefit of the
Holders of the Outstanding Units, one or more certificates or book-entry
interests 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 or book-entry interests 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 Stock Purchase Date, being
hereinafter referred to as the "Forward 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 Stock Purchase Date,
together with settlement instructions thereon duly completed and executed, the
Holder of such Certificate shall be entitled to receive in exchange therefor a
certificate or book-entry interest representing that number of whole shares of
Common Stock which such Holder is entitled to receive pursuant to the provisions
of this Article V (after taking into account all Equity Units and Stripped Units
then held by such Holder) together with cash in lieu of fractional shares as
provided in Section 5.12 and any dividends or distributions with respect to such
shares constituting part of the Forward 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
Forward Purchase Contract are to be registered to a Person other than the Person
in whose name the Certificate evidencing such Forward 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 such
Certificate 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.
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(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) Stock Dividends. In case the Company shall pay or make a
dividend or other distribution on the Common Stock in Common Stock,
the Settlement Rate or Early Settlement Rate, as applicable, as in
effect at the opening of business on the day following the date fixed
for the determination of stockholders entitled to receive such
dividend or other distribution shall be increased by dividing such
Settlement Rate or Early Settlement Rate by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination.
For the purposes of this paragraph (1), the number of shares of Common
Stock at the time outstanding shall not include shares held in the
treasury of the Company but shall include any shares issuable in
respect of any scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make
any distribution on shares of Common Stock held in the treasury of the
Company.
(2) Stock Purchase Rights. In case the Company shall issue
rights, options or warrants to all holders of its Common Stock (not
being available on an equivalent basis to Holders of the Equity Units
and Stripped Units upon settlement of the Forward Purchase Contracts
underlying such Equity Units and Stripped Units) entitling them to
subscribe for or purchase shares of Common Stock at a price per share
less than the Current Market Price per share of the Common Stock on
the date fixed for the determination of stockholders entitled to
receive such rights, options or warrants (other than pursuant to a
dividend reinvestment, share purchase or similar plan), the Settlement
Rate or Early Settlement Rate, as applicable, in effect at the opening
of business on the day following the date fixed for such determination
shall be increased by dividing such Settlement Rate or Early
Settlement Rate, as applicable, by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the number
of shares of Common Stock which the aggregate of the offering price of
the total number of shares of Common Stock so offered for subscription
or purchase would purchase at such Current Market Price and the
denominator of which shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such increase to become effective
immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this paragraph
(2), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall
include any shares issuable in respect of any scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company
shall not issue any such rights, options or warrants in respect of
shares of Common Stock held in the treasury of the Company.
(3) Stock Splits; Reverse Splits. In case outstanding shares of
Common Stock shall be subdivided or split into a greater number of
shares of Common Stock, the Settlement Rate or Early Settlement Rate,
as applicable, in effect at the opening of business on the day
following the day upon which such subdivision or split becomes
effective shall be proportionately increased, and, conversely, in case
outstanding shares of Common Stock shall be combined into a smaller
number of shares of Common Stock, the Settlement Rate or Early
Settlement Rate, as applicable, in effect at the opening of business
on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such
subdivision, split or combination becomes effective.
(4) Debt or Asset Distributions.
(i) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of
its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in paragraph
(2) of this Section, any dividend or distribution paid
exclusively in cash and any dividend, shares of capital
stock of any class or series, or similar equity interests,
of or relating to a subsidiary or other business unit in the
case of a Spin-Off referred to in the next paragraph, or
distribution referred to in paragraph (1) of this Section),
the Settlement Rate or Early Settlement Rate, as applicable,
shall be adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate or Early
Settlement Rate, as applicable, in effect immediately prior
to the close of business on the date fixed for the
determination of stockholders entitled to receive such
distribution by a fraction, the numerator of which shall be
the Current Market Price per share of the Common Stock on
the date fixed for such determination less the then fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of
Common Stock and the denominator of which shall be such
Current Market Price per share of the Common Stock, such
adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for
the determination of stockholders entitled to receive such
distribution. In any case in which this paragraph (4) is
applicable, paragraph (2) of this Section shall not be
applicable.
(ii) In the case of a Spin-Off, the Settlement Rate or Early
Settlement Rate, as applicable, in effect immediately before
the close of business on the record date fixed for
determination of stockholders entitled to receive that
distribution will be increased by multiplying the Settlement
Rate or Early Settlement Rate, as applicable, by a fraction,
the numerator of which is the Current Market Price per share
of the Common Stock plus the Fair Market Value of the
portion of those shares of Capital Stock or similar equity
interests so distributed applicable to one share of Common
Stock and the denominator of which is the Current Market
Price per share of the Common Stock. Any adjustment to the
Settlement Rate or Early Settlement Rate under this
paragraph 4(ii) will occur at the earlier of (1) the tenth
Trading Day from, and including, the effective date of the
Spin-Off and (2) the date of the securities being offered in
the Initial Public Offering of the Spin-Off, if that Initial
Public Offering is effected simultaneously with the
Spin-Off.
(5) Cash Distributions. In case the Company shall, (i) by
dividend or otherwise, distribute to all holders of its Common Stock
cash (excluding any cash that is distributed in a Reorganization Event
to which Section 5.6(b) applies or as part of a distribution referred
to in paragraph (4) of this Section) in an aggregate amount that,
combined together with (ii) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in
cash within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to this
paragraph (5) or paragraph (6) of this Section has been made and (iii)
the aggregate of any cash plus the fair market value as of the date of
the expiration of the tender or exchange offer referred to below (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 (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 or Early Settlement Rate, as applicable, shall be
increased so that the same shall equal the rate determined by dividing
the Settlement Rate or Early Settlement Rate, as applicable, in effect
immediately prior to the close of business on the date fixed for
determination of the stockholders entitled to receive such
distribution by a fraction (A) 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), (ii) and (iii) above and (y) the number of
shares of Common Stock outstanding on such date for determination and
(B) the denominator of which shall be equal to the Current Market
Price per share of the Common Stock on such date for determination.
(6) Tender Offers. In case (i) a tender or exchange offer made by
the Company or any subsidiary of the Company for all or any portion of
the Common Stock shall expire and such tender or exchange offer (as
amended upon the expiration thereof) shall require the payment to
stockholders (based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of Purchased Shares) of an
aggregate consideration having a fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) that combined together with (ii) the
aggregate of the cash plus the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution), as of the expiration of such tender
or exchange offer, of consideration payable in respect of any other
tender or exchange offer, by the Company or any subsidiary of the
Company for all or any portion of the Common Stock expiring within the
12 months preceding the expiration of such tender or exchange offer
and in respect of which no adjustment pursuant to paragraph (5) of
this Section or this paragraph (6) has been made and (iii) 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) at
the Expiration Time, then, and in each such case, immediately prior to
the opening of business on the day after the date of the Expiration
Time, the Settlement Rate or Early Settlement Rate, as applicable,
shall be adjusted so that the same shall equal the rate determined by
dividing the Settlement Rate or Early Settlement Rate, as applicable,
immediately prior to the close of business on the date of the
Expiration Time by a fraction (A) the numerator of which shall be
equal to (x) the product of (I) the Current Market Price per share of
the Common Stock on the date of the Expiration Time and (II) the
number of shares of Common Stock outstanding (including any tendered
shares) at the Expiration Time less (y) the amount of cash plus the
fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the transactions
described in clauses (i), (ii) and (iii) 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 (B) the
denominator of which shall be equal to the product of (x) the Current
Market Price per share of the Common Stock as of the Expiration Time
and (y) the number of shares of Common Stock outstanding (including
any tendered shares) as of the Expiration Time less the number of all
shares validly tendered and not withdrawn as of the Expiration Time
(the shares deemed so accepted, up to any such maximum, being referred
to as the "Purchased Shares").
(7) Reclassification. 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 (i) a distribution of such
securities other than Common Stock to all holders of Common Stock (and
the effective date of such reclassification shall be deemed to be "the
date fixed for the determination of stockholders entitled to receive
such distribution" and the "date fixed for such determination" within
the meaning of paragraph (4) of this Section), and (ii) a subdivision,
split or combination, as the case may be, of the number of shares of
Common Stock outstanding immediately prior to such reclassification
into the number of shares of Common Stock outstanding immediately
thereafter (and the effective date of such reclassification shall be
deemed to be "the day upon which such subdivision or split becomes
effective" or "the day upon which such combination becomes effective,"
as the case may be, and "the day upon which such subdivision, split or
combination becomes effective" within the meaning of paragraph (3) of
this Section).
(8) "Current Market Price". The "Current Market Price" of the
Common Stock means (a) on any day the average of the Sales Prices for
the 5 consecutive Trading Days preceding the earlier of the day
preceding the day in question and the day before the "ex date" with
respect to the issuance or distribution requiring computation, (b) in
the case of any Spin-Off that is effected simultaneously with an
Initial Public Offering of the securities being distributed in the
Spin-Off, the Sale Price of the Common Stock on the Trading Day on
which the Initial Public Offering price of the securities being
distributed in the Spin-Off is determined, and (c) in the case of any
other Spin-Off, the average of the Sale Prices of the Common Stock
over the first 10 Trading Days after the effective date of such
Spin-Off. For purposes of this paragraph, the term "ex date," when
used with respect to any issuance or distribution, shall mean the
first date on which the Common Stock trades regular way on the
relevant exchange or in the relevant market without the right to
receive such issuance or distribution.
(9) Calculation of Adjustments. All adjustments to the Settlement
Rate or Early Settlement Rate, as applicable, shall be calculated to
the nearest 1/10,000th of a share of Common Stock (or if there is not
a nearest 1/10,000th of a share to the next lower 1/10,000th of a
share). No adjustment in the Settlement Rate or Early Settlement Rate,
as applicable, shall be required unless such adjustment would require
an increase or decrease of at least one percent therein; provided,
that any adjustments which by reason of this subparagraph are not
required to be made shall be carried forward and taken into account in
any subsequent adjustment. If an adjustment is made to the Settlement
Rate or Early Settlement Rate, as applicable, 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 (i), (ii) or (iii) of the definition of
Settlement Rate or Early Settlement Rate, as applicable, in Section
5.1(a) will apply on the Stock Purchase Date. Such adjustment shall be
made by multiplying the Applicable Market Value by a fraction, the
numerator of which shall be the Settlement Rate or Early Settlement
Rate, as applicable, 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 of which shall be the Settlement Rate or
Early Settlement Rate, as applicable, immediately before such
adjustment; provided, that if such adjustment to the Settlement Rate
or Early Settlement Rate, as applicable, 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 or Early Settlement Rate, as
applicable.
(10) Increase of Settlement Rate. The Company may make such
increases in the Settlement Rate or Early Settlement Rate, as
applicable, in addition to those required by this Section, as it
considers to be advisable in order to avoid or diminish any income tax
to any holders of shares of Common Stock resulting from any dividend
or distribution of stock or issuance of rights or warrants to purchase
or subscribe for stock or from any event treated as such for income
tax purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event.
In the event of
(1) any consolidation or merger of the Company with or into
another Person (other than a merger or consolidation in which the
Company is the continuing corporation and in which the Common
Stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash, securities or other
property of the Company or another corporation),
(2) any sale, transfer, lease or conveyance to another
Person of the property of the Company as an entirety or
substantially as an entirety,
(3) any statutory exchange of securities of the Company with
another Person (other than in connection with a merger or
acquisition), or
(4) 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"),
each share of Common Stock covered by each Forward Purchase Contract
forming a part of an Equity Unit or Stripped Unit, as the case may be,
immediately prior to such Reorganization Event shall, after such
Reorganization Event, be converted for purposes of the Forward Purchase
Contract into the kind and amount of securities, cash and other property
receivable in such Reorganization Event (without any interest thereon, and
without any right to dividends or distributions thereon which have a record
date that is prior to the Stock Purchase Date) per share of Common Stock by
a holder of Common Stock that (i) 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 (ii) failed to exercise his rights of election, if any,
as to the kind or amount of securities, cash and other property receivable
upon such Reorganization Event (provided that if the kind or amount of
securities, cash and other property receivable upon such Reorganization
Event is not the same for each share of Common Stock held immediately prior
to such Reorganization Event by other than a Constituent Person or an
Affiliate thereof and in respect of which such rights of election shall not
have been exercised ("Non-electing Share"), then for the purpose of this
Section the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by each Non-electing Share shall
be deemed to be the kind and amount so receivable per share by a plurality
of the Non-electing Shares). On the Stock Purchase Date, the Settlement
Rate then in effect will be applied to the value on the Stock Purchase Date
of such securities, cash or other property. 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
Holder of each Outstanding Unit shall have the rights provided by this
Section 5.6. 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.
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(a) Whenever the Settlement Rate or Early Settlement Rate, as
applicable, is adjusted as herein provided, the Company shall:
(i) forthwith compute the Settlement Rate or Early Settlement
Rate, as applicable, and the Applicable Market Value in
accordance with Section 5.6 and prepare and transmit to the
Agent an Officer's Certificate setting forth the Settlement
Rate and the Applicable Market Value, the method of
calculation thereof in reasonable detail, and the facts
requiring such adjustment and upon which such adjustment is
based; and
(ii) as soon as practicable following the occurrence of an event
that requires an adjustment to the Settlement Rate or Early
Settlement Rate, as applicable, 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 Equity Units and Stripped Units
of the occurrence of such event and a statement in
reasonable detail setting forth the method by which the
adjustment to the Settlement Rate or Early Settlement Rate,
as applicable, and the Applicable Market Value was
determined and setting forth the adjusted Settlement Rate or
Early Settlement Rate, as applicable, and the Applicable
Market Value.
(b) The Agent shall not at any time be under any duty or
responsibility to any Holder of Equity Units and Stripped Units to
determine whether any facts exist which may require any adjustment of the
Settlement Rate or Early Settlement Rate, as applicable, and the Applicable
Market Value, 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 any time be issued or delivered with
respect to any Forward 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 Forward Purchase Contract or to comply with any
of the duties, responsibilities or covenants of the Company contained in
this Article.
Section 5.8 Termination Event; Notice.
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The Forward Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including 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 Stock Purchase Date, a Termination Event shall
have occurred. Upon and after the occurrence of a Termination Event, the Equity
Units shall thereafter represent the right to receive the Notes or the
appropriate Treasury Consideration or Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, forming a part of such Equity Units, and
the Stripped Units shall thereafter represent the right to receive the Treasury
Securities forming a part of such Stripped Units, in each case in accordance
with the provisions of Section 4.3 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 to the Holders, at their addresses as they appear in the applicable
Register.
Section 5.9 Early Settlement.
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(a) Subject to and upon compliance with the provisions of this Section
5.9, Forward Purchase Contracts underlying Equity Units or Stripped Units
may, at the option of the Holder thereof, be settled early ("Early
Settlement") at any time not later than 10:00 a.m. on the seventh Business
Day immediately preceding the Stock Purchase Date. In order to exercise the
right to effect Early Settlement with respect to any Forward Purchase
Contracts, the Holder of the Certificate evidencing the related Equity
Units or Stripped Units, as the case may be, 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 (A) the product of (i) the Stated Amount of such Equity
Units or Stripped Units, as the case may be, multiplied by (ii) the number
of Forward Purchase Contracts with respect to which the Holder has elected
to effect Early Settlement, plus (B) if such delivery is made with respect
to any Forward 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 Contract
Adjustment Payments, if any, payable on such Payment Date with respect to
such Forward Purchase Contracts; provided that no payment shall be required
pursuant to clause (B) of this sentence if the Company shall have elected
to defer the Contract Adjustment Payments that would otherwise be payable
on such Payment Date and further provided that, at that time, if so
required by the United States federal securities laws, a registration
statement is in effect and a prospectus is available covering the shares of
the Common Stock of the Company to be delivered in respect of the Forward
Purchase Contracts being settled. Except as provided in the immediately
preceding sentence and subject to Section 5.2(d), no payment or adjustment
shall be made upon Early Settlement of any Forward Purchase Contract on any
Contract Adjustment Payments accrued on such Forward 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 Forward Purchase Contracts underlying any Equity Units or Stripped
Units, as the case may be, at or prior to 5:00 p.m., New York City time, on
a Business Day, such day shall be the "Early Settlement Date" with respect
to such Equity Units or Stripped Units, as the case may be, 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 Equity Units or Stripped Units, as the case may
be, shall be the next succeeding Business Day.
(b) Holders of Equity Units may settle only in units of 20 and
integral multiples of 20. If a successful remarketing or a Tax Event
Redemption has occurred, Holders of Stripped Units may effect Early
Settlement pursuant to this Section 5.9 only in integral multiples of
32,000.
(c) Upon Early Settlement of any Forward Purchase Contract by the
Holder of the related Equity Units or Stripped Units, as the case may be,
the Company shall issue, and the Holder shall be entitled to receive,
1.0187 shares of Common Stock for each Equity Unit or Stripped Unit on
account of such Forward 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 promptly as practicable
after Early Settlement of Forward Purchase Contracts in accordance with the
provisions of this Section 5.9, the Company shall issue and shall deliver
to the Agent at the Corporate Trust Office a certificate or certificates or
book entry interest 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 5.12.
(d) 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 Forward Purchase Contracts to be issued
and delivered, and (ii) the related Pledged Notes or Pledged Treasury
Consideration or Pledged Applicable Ownership Interest in the Treasury
Portfolio, in the case of Equity Units, or the related Pledged Treasury
Securities, in the case of Stripped Units, 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 the Holder's designee.
(e) Upon Early Settlement of any Forward Purchase Contracts, and
subject to receipt of shares of Common Stock from the Company and the
Pledged Notes, Pledged Treasury Consideration, Pledged Applicable Ownership
Interest in the Treasury Portfolio, or Pledged Treasury Securities, as the
case may be, from the Collateral Agent, as applicable, the Agent shall, in
accordance with the instructions provided by the Holder thereof on the
applicable form of Election to Settle Early on the reverse of the
Certificate evidencing the related Equity Units or Stripped Units, as the
case may be, (i) transfer to the Holder the Pledged Notes, Pledged Treasury
Consideration, Pledged Applicable Ownership Interest in the Treasury
Portfolio, or Pledged Treasury Securities, as the case may be, forming a
part of such Equity Units or Stripped Units, as the case may be, and (ii)
deliver to the Holder a certificate or certificates or book-entry interest
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 5.12.
(f) In the event that Early Settlement is effected with respect to
Forward Purchase Contracts underlying less than all the Equity Units or
Stripped Units, as the case may be, evidenced by a Certificate, upon such
Early Settlement the Company shall execute and the Agent shall
authenticate, execute on behalf of the Holder thereof and deliver to the
Holder thereof, at the expense of the Company, a Certificate evidencing the
Equity Units or Stripped Units, as the case may be, as to which Early
Settlement was not effected.
Section 5.10 Early Settlement Upon Merger.
------------------------------------------
(a) In the event of a merger or consolidation of the Company of the
type described in clause (1) of Section 5.6(b) in which the Common Stock
outstanding immediately prior to such merger or consolidation is exchanged
for consideration consisting of at least 30% cash or cash equivalents (any
such event a "Cash Merger"), then the Company (or the successor to the
Company hereunder) shall be required to offer the Holder of each Equity
Unit or Stripped Unit, as the case may be, the right to settle the Forward
Purchase Contract underlying such Equity Units or Stripped Units, as the
case may be, prior to the Stock Purchase Date ("Merger Early Settlement")
as provided herein. On or before the fifth Business Day after the
consummation of a Cash Merger, the Company or, at the request and expense
of the Company, the Agent, shall give all Holders notice of the occurrence
of the Cash Merger and of the right of Merger Early Settlement arising as a
result thereof. The Company shall also deliver a copy of such notice to the
Agent and the Collateral Agent.
Each such notice shall contain:
(i) the date, which shall be not less than 20 nor more than 30
calendar days after the date of such notice, on which the
Merger Early Settlement will be effected (the "Merger Early
Settlement Date");
(ii) the date, which shall be on or one Business Day prior to the
Merger Early Settlement Date, by which the Merger Early
Settlement right must be exercised;
(iii)the Settlement Rate in effect as a result of such Cash
Merger and the kind and amount of securities, cash and other
property receivable by the Holder upon settlement of each
Forward Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the
Purchase Price payable by the Holder to settle the Forward
Purchase Contract will be offset against the amount of cash
so receivable upon exercise of Merger Early Settlement, as
applicable; and
(v) the instructions a Holder must follow to exercise the Merger
Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall
deliver to the Agent at the Corporate Trust Office on or before 5:00 p.m.,
New York City time on the date specified in the notice the Certificate(s)
evidencing the Equity Units or Stripped Units, as the case may be, with
respect to which the Merger Early Settlement right is being exercised duly
endorsed for transfer to the Company or in blank with the form of Election
to Settle Early on the reverse thereof duly completed and accompanied by
payment payable to the Company in immediately available funds in an amount
equal to the Early Settlement Amount less the amount of cash that otherwise
would be deliverable by the Company or its successor upon settlement of the
Forward Purchase Contract in lieu of Common Stock pursuant to Section
5.4(b) and as described in the notice to Holders (the "Merger Early
Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or
cause to be delivered (i) the net cash, securities and other property to be
received by such exercising Holder, equal to the Settlement Rate as
adjusted pursuant to Section 5.6, in respect of the number of Forward
Purchase Contracts for which such Merger Early Settlement right was
exercised, and (ii) the related Pledged Notes, Pledged Treasury
Consideration or Pledged Applicable Ownership Interest in the Treasury
Portfolio, in the case of Equity Units, or Pledged Treasury Securities, in
the case of Stripped Units, 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. In the event a Merger Early
Settlement right shall be exercised by a Holder in accordance with the
terms hereof, all references herein to the Stock Purchase Date shall be
deemed to refer to such Merger Early Settlement Date.
(d) Upon Merger Early Settlement of any Forward Purchase Contracts,
and subject to receipt of such net cash, securities or other property from
the Company and the Pledged Notes, Pledged Treasury Consideration, Pledged
Applicable Ownership Interest in the Treasury Portfolio or Pledged Treasury
Securities, as the case may be, from the Collateral Agent, as applicable,
the Agent shall, in accordance with the instructions provided by the Holder
thereof on the applicable form of Election to Settle Early on the reverse
of the Certificate evidencing the related Equity Units or Stripped Units,
as the case may be, (i) transfer to the Holder the Pledged Notes, Pledged
Treasury Consideration, Pledged Applicable Ownership Interest in the
Treasury Portfolio, or Pledged Treasury Securities, as the case may be,
forming a part of such Equity Units or Stripped Units, as the case may be,
and (ii) deliver to the Holder such net cash, securities or other property
issuable upon such Merger Early Settlement together with payment in lieu of
any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect
to Forward Purchase Contracts underlying less than all the Equity Units or
Stripped Units, as the case may be, evidenced by a Certificate, upon such
Merger Early Settlement the Company (or the successor to the Company
hereunder) shall execute and the Agent shall authenticate, execute on
behalf of the Holder thereof and deliver to the Holder thereof, at the
expense of the Company, a Certificate evidencing the Equity Units or
Stripped Units, as the case may be, as to which Merger Early Settlement was
not effected.
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
Forward Purchase Contracts; provided, 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 Equity Units or Stripped Units 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 Equity Units and Stripped
Units 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 book-entry interest in Common Stock or Certificates unless
and 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.
Section 5.12 No Fractional Shares.
----------------------------------
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Stock Purchase Date or
upon Early Settlement or Merger Early Settlement of any Forward Purchase
Contracts. If Certificates evidencing more than one Forward 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 Forward 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 Forward
Purchase Contracts on the applicable Settlement Date or upon Early Settlement or
Merger Early Settlement, the Company, through the Agent, shall make a cash
payment in respect of such fractional share in an amount equal to the value of
such fractional share 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 5.12 in a timely manner.
Section 5.13 Tax Treatment.
---------------------------
The Company covenants and agrees and each Holder, by purchasing the Equity
Units agrees, (i) to treat a Holder's acquisition of the Equity Units as the
acquisition of the Note and Forward Purchase Contract constituting the Equity
Units, (ii) to treat a Holder's acquisition of the Stripped Units as the
acquisition of the Treasury Security and Forward Purchase Contract constituting
the Stripped Unit, (iii) to treat each Holder as the owner of the related Notes,
Treasury Consideration, Applicable Ownership Interest in the Treasury Portfolio
or Treasury Securities, as the case may be and (iv) to allocate the purchase
price of the Equity Unit between the Note and Forward Purchase Contract as $50
and $0, respectively.
ARTICLE VI.
REMEDIES
Section 6.1 Unconditional Right of Holders to Purchase Common Stock.
--------------------------------------------------------------------
(a) The Holder of any Equity Units or Stripped Units, as the case may
be shall have the right, which is absolute and unconditional, subject to
the right of the Company to defer payment thereof pursuant to Section 5.3,
and to the forfeiture of any Deferred Contract Adjustment Payments upon
Cash Settlement pursuant to Section 5.2(d), upon Early Settlement pursuant
to Section 5.9(a), upon Merger Early Settlement pursuant to Section 5.10 or
upon the occurrence of a Termination Event, to receive payment of each
installment of the Contract Adjustment Payments, if any, with respect to
the Purchase Contract constituting a part of such Equity Units or Stripped
Units, as the case may be, on the respective Payment Date for such Equity
Units or Stripped Units, as the case may be, and
(b) Subject to Section 5.6, the Holder of any Units shall have the
right, which is absolute and unconditional, to purchase Common Stock
pursuant to the Forward Purchase Contract constituting a part of such Units
and to institute suit for the enforcement of any such right to purchase
Common Stock, and such right 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 Section 3.10(f), 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 Equity Units or
Stripped Units, as the case may be, by its acceptance of such Equity Units or
Stripped Units, as the case may be, 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 and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; provided that the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Agent, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% of the Outstanding Units, or to any suit instituted by any Holder
for the enforcement of distributions on any Notes or any Forward Purchase
Contract on or after the respective Payment Date therefor in respect of any
Equity Units or Stripped Units, as the case may be, held by such Holder, or for
enforcement of the right to purchase shares of Common Stock under the Forward
Purchase Contract constituting part of any Equity Units or Stripped Units, as
the case may be, 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 in 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, but will suffer and permit the execution of every power of the Agent and
the Holders as though no such law had been enacted.
ARTICLE VII
THE AGENT
Section 7.1 Certain Duties, Rights and Immunities.
--------------------------------------------------
(a) The Agent shall act as agent and attorney-in-fact for the Holders
of the Equity Units and Stripped Units hereunder with such powers as are
specifically vested in the Agent by the terms of this Agreement, the Pledge
Agreement, the Remarketing Agreement, the Notes, the Equity Units and
Stripped Units, and any documents evidencing them or related thereto (the
"Transaction Documents"), together with such other powers as are reasonably
incidental thereto. The Agent:
(1) shall have no duties or responsibilities except those
expressly set forth in the Transaction Documents and no
implied covenants or obligations shall be inferred from any
Transaction Documents against the Agent, nor shall the Agent
be bound by the provisions of any agreement by any party
hereto beyond the specific terms hereof;
(2) shall be entitled to conclusively rely upon (x) any
certificate, order, judgment, opinion, notice or other
communication (including, without limitation, any thereof by
telephone or facsimile) reasonably believed by it to be
genuine and correct and to have been signed or sent by or on
behalf of the proper Person or Persons (without being
required to determine the correctness of any fact stated
therein), (y) the truth of the statements and the
correctness of the opinions expressed therein and (z) advice
and statements of legal counsel and other experts selected
by the Agent;
(3) shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or under any Transaction
Documents in accordance with instructions given by the
Company or the Holders in accordance herewith or with the
Transaction Documents;
(4) shall not be responsible for any recitals contained in any
Transaction Document, or in any certificate or other
document referred to or provided for in, or received by it
under, any Transaction Document or the Equity Units or
Stripped Units, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of any
Transaction Document (other than as against the Agent) or
the Equity Units or Stripped Units or any other document
referred to or provided for herein or therein or for any
failure by the Company, any Holder or any other Person
(except the Agent) to perform any of its obligations
hereunder or thereunder or for the perfection, priority or,
except as expressly required hereby, existence, validity,
perfection or maintenance of any security interest created
under the Pledge Agreement, or for the use or application by
the Company of the proceeds in respect of the Forward
Purchase Contracts;
(5) shall not be required to initiate or conduct any litigation
or collection proceedings hereunder;
(6) shall not be responsible for any action taken or omitted to
be taken by it hereunder or under the Transaction Documents
or any other document or instrument referred to or provided
for herein or therein or in connection herewith or
therewith, except for its own negligence, bad faith or
willful misconduct; and
(7) shall not be required to advise any party as to selling or
retaining, or taking or refraining from taking any action
with respect to, the Equity Units or Stripped Units or other
rights under any Transaction Document.
(b) No provision of any Transaction Document shall be construed to
relieve the Agent from liability for its own negligent action, its own
negligent failure to act, its own bad faith, or its own willful misconduct,
except that:
(1) this paragraph (b) shall not be construed to limit the
effect of paragraph (a) of this Section;
(2) the Agent shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be
proved that the Agent was grossly negligent in ascertaining
the pertinent facts; and
(3) in no event shall the Agent be required to expend or risk
its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder.
(c) In no event shall the Agent or its officers, employees or agents
be liable for any special, indirect, individual, punitive or consequential
loss or damages, lost profits or loss of business, arising in connection
with any Transaction Document, whether or not the likelihood of such loss
or damage was known to the Agent, and regardless of the form of action.
(d) Whether or not therein expressly so provided, every provision of
every Transaction Document relating to the conduct or affecting the
liability of or affording protection to the Agent shall be subject to the
provisions of this Section.
(e) The Agent is authorized to execute and deliver the Pledge
Agreement and the Remarketing Agreement and any supplement thereto in its
capacity as Agent. The Agent shall be entitled to all of the rights,
privileges, immunities and indemnities contained in this Agreement with
respect to any duties of the Agent under, or actions taken, omitted to be
taken or suffered by the Agent pursuant to the Pledge Agreement.
(f) The Agent shall have no liability whatsoever for the action or
inaction of any Clearing Agency or any book-entry system thereof. In no
event shall any Clearing Agency or any book-entry system thereof be deemed
an agent or subcustodian of the Agent.
(g) The Agent shall not be responsible or liable for any failure or
delay in the performance of its obligations under any Transaction Document
arising out of or caused, directly or indirectly, by circumstances beyond
its reasonable control, including, without limitation, acts of God; acts of
terrorism; earthquakes; fires; floods; wars; civil or military
disturbances; sabotage; epidemics; riots; interruptions, loss or
malfunctions of utilities, computer (hardware or software) or
communications service; accidents; labor disputes; acts of civil or
military authority; governmental actions; or inability to obtain labor,
material, equipment or transportation.
Section 7.2 Notice of Default.
------------------------------
Within 30 days after the occurrence of any default by the Company of its
obligations hereunder or under one or more Forward Purchase Contracts of which a
Responsible Officer of the Agent has actual knowledge, the Agent shall transmit
by mail to the Company and the Holders of Equity Units and Stripped Units, as
their names and addresses appear in the Register, notice of such default
hereunder, unless such default shall have been cured or waived.
Section 7.3 Certain Rights of Agent.
------------------------------------
Subject to the provisions of Section 7.1:
(a) the Agent may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officer's Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Agent (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate of the Company;
(d) the Agent may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(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 Forward 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;
(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 of the Agent and the Agent shall not be responsible for any
misconduct or negligence on the part of any agent or attorney or an
Affiliate appointed with due care by it hereunder;
(g) the rights, privileges, protections, immunities and benefits given
to the Agent, including, but not limited to, its right to be indemnified,
are extended to, and shall be enforceable by, the Agent in each of its
capacities hereunder, and to each custodian and other person employed to
act hereunder;
(h) the Agent shall not be charged with knowledge of any default by
the Company hereunder unless a Responsible Officer of the Agent shall have
received at the Corporate Trust Office of the Agent written notice of such
default; and
(i) the permissive right of the Agent to do things enumerated in this
Agreement shall not be construed as a duty.
Section 7.4 Not Responsible For Recitals, Etc.
----------------------------------------------
The recitals contained herein, in any other Transaction Documents and in
the Certificates shall be taken as the statements of the Company and the Agent
assumes no responsibility for their accuracy. The Agent makes no representations
as to the validity or sufficiency of either this Agreement or any other
Transaction Documents. The Agent shall not be accountable for the use or
application by the Company of the proceeds in respect of the Equity Units or
Stripped Units or the Forward Purchase Contracts and shall not be responsible
for the perfection, priority or maintenance of any security interests created or
intended to be created under the Pledge Agreement.
Section 7.5 May Hold Equity Units and Stripped Units and Other Dealings.
------------------------------------------------------------------------
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 Equity Units or Stripped Units, as the case may be, 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.
The Agent and its Affiliates may (without having to account therefor to the
Company or any Holder of Equity Units or Stripped Units or holder of Separate
Notes) accept deposits from, lend money to, make other investments in and
generally engage in any kind of banking, trust or other business with the
Company, any Holder of Equity Units or Stripped Units and any holder of Separate
Notes (and any of their respective subsidiaries or Affiliates) as if it were not
acting as the Agent and the Agent and its Affiliates may accept fees and other
consideration from the Company, any Holder of Equity Units or Stripped Units or
any holder of Separate Notes without having to account for the same to any such
Person.
Section 7.6 Money Held In Custody.
----------------------------------
Money held by the Agent in custody hereunder need not be segregated from
the Agent's 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.
Section 7.7 Compensation and Reimbursement.
-------------------------------------------
The Company agrees:
(a) to pay to the Agent from time to time compensation for all
services rendered by it hereunder or under the Transaction Documents as
shall be agreed in writing between the Company and the Agent;
(b) 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 or the other Transaction
Documents (including the reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence,
willful misconduct or bad faith; and
(c) to indemnify the Agent for, and to hold it harmless against, any
loss, liability or reasonable out-of-pocket expense incurred without gross
negligence, willful misconduct or bad faith on its part, arising out of or
in connection with the acceptance or administration of its duties under the
other Transaction Documents, including the costs and expenses (including
reasonable fees and expenses of counsel) of defending itself against any
claim, whether asserted by the Company, a Holder or any other Person, or
liability in connection with the exercise or performance of any of its
powers or duties under the Transaction Documents. The Agent shall promptly
notify the Company of any third party claim which may give rise to the
indemnity hereunder and give the Company the opportunity to participate in
the defense of such claim with counsel reasonably satisfactory to the
indemnified party, and no such claim shall be settled without the written
consent of the Company, which consent shall not be unreasonably withheld,
provided that any failure to give any such notice shall not affect the
obligation of the Company under this Section. The provisions of this
Section 7.7 shall survive the termination of any and all Transaction
Documents, the satisfaction or discharge of the Equity Units or Stripped
Units and/ or the Separate Notes or the resignation or removal of the
Agent.
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 $500,000,000, subject
to supervision or examination by federal or state authority and having (or being
a member of a bank holding company having) a Corporate Trust Office in the
Borough of Manhattan, the City of New York, if there be such a corporation,
qualified and eligible under this Article and willing to act on reasonable
terms. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Agent shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 7.9 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.
(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, at the
expense of the Company, 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 Units upon delivery of a written
notice to the Agent and the Company. 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 removal, the
Agent to be removed may petition, at the expense of the Company, any court
of competent jurisdiction for the appointment of a successor Agent.
(d) If at any time:
(1) the Agent has a "conflicting interest" (as defined in
Section 310(b) of the TIA) and fails to eliminate the
conflicting interest or resign pursuant to Section 310(b) of
the TIA upon written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Unit for at
least six months, as if this Agreement were an indenture
qualified under the TIA, as if the Equity Units or Stripped
Units were in default and as if such default had not been
cured or waived within the applicable period under Section
310(b) of the TIA; or
(2) 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
(3) the Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent
or of its property shall be appointed or any public officer
shall take charge or control of the Agent or of its property
or affairs for the purpose of rehabilitation, conservation
or liquidation;
then, in any such case, (x) the Company by a Board Resolution may remove
the Agent, or (y) any Holder who has been a bona fide Holder of Equity
Units or Stripped Equity Units 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 Equity Units or Stripped Equity Units for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Agent.
(f) The Company shall give, or shall cause such successor Agent to
give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders 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, trusts 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, agencies, trusts and duties of the
retiring Agent and 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, agencies,
trusts and duties 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,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Certificates shall have been
authenticated and executed on behalf of the Holders, but not delivered, by the
Agent then in office, any successor by merger, conversion or consolidation to
such Agent shall 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 Equity Units and
Stripped Units.
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 applicant has owned Equity Units or Stripped Units, as the
case may be, 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 Equity Units or Stripped Units, as the case may be,
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, in the
absence of bad faith, satisfactory to the Agent for the payment, of the
reasonable expenses of such mailing.
Section 7.13 Failure to Act.
----------------------------
In the event of any ambiguity in the provisions of any Transaction Document
or any dispute between or conflicting claims by or among the parties hereto or
any other Person, the Agent shall be entitled, after prompt notice to the
Company and the Holders of Equity Units and Stripped Units, at its sole option,
to refuse to comply with any and all such claims, demands or instructions so
long as such dispute or conflict shall continue, and the Agent shall not be or
become liable in any way to any of the parties hereto for its failure or refusal
to comply with such conflicting claims, demands or instructions. The Agent shall
be entitled to refuse to act until either (i) such conflicting or adverse claims
or demands shall have been finally determined by a court of competent
jurisdiction or settled by agreement between the conflicting parties as
evidenced in a writing, reasonably satisfactory to the Agent, or (ii) the Agent
shall have received security or an indemnity reasonably satisfactory to the
Agent sufficient to save the Agent harmless from and against any and all loss,
liability or reasonable out-of-pocket expense which the Agent may incur by
reason of its acting without bad faith, willful misconduct or gross negligence.
The Agent may in addition elect to commence an interpleader action or seek other
judicial relief or orders as the Agent may deem necessary. Notwithstanding
anything contained herein to the contrary, the Agent shall not be required to
take any action that is in its opinion contrary to law or to the terms of any
Transaction Document, or which would in its opinion subject it or any of its
officers, employees or directors to liability.
Section 7.14 No Obligations of Agent.
-------------------------------------
Except to the extent otherwise provided in this Agreement, the Agent
assumes no obligation and shall not be subject to any liability under this
Agreement, the Pledge Agreement or any Forward Purchase Contract in respect of
the obligations of the Holder of any Equity Units or Stripped Units thereunder.
The Company agrees, and each Holder of a Certificate, by such Holder's
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 Forward Purchase Contracts on behalf of the Holders, except to the
extent expressly provided in Article V. Anything contained in this Agreement to
the contrary notwithstanding, in no event shall the Agent or its officers,
employees or agents be liable for indirect, special, punitive, or consequential
loss or damage of any kind whatsoever, including, but not limited to, lost
profits, whether or not the likelihood of such loss or damage was known to the
Agent and regardless of the form of action.
Section 7.15 Tax Compliance.
----------------------------
(a) The Agent, on its own behalf and on behalf of the Company, will
comply with all applicable certification, information reporting and
withholding (including "backup" withholding) requirements imposed on it as
a paying agent by applicable tax laws, regulations or administrative
practice with respect to any payments made with respect to the Equity Units
and Stripped Units. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of
all amounts required to be withheld to the appropriate taxing authority or
its designated agent.
(b) The Agent shall comply with any reasonable written direction
timely received from the Company with respect to the application of such
requirements to particular payments to Holders or in other particular
circumstances, and may for purposes of this Agreement rely on any such
direction in accordance with Section 7.1(a)(2).
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available,
on written request, to the Company or 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, for any of the
following purposes:
(a) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein
and in the Certificates; or
(b) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(c) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent; or
(d) to make provision with respect to the rights of Holders pursuant
to the requirements of Section 5.6(b) or 5.10; or
(e) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein, or to
make any other provisions with respect to such matters or questions arising
under this Agreement, provided such action shall not adversely affect the
interests of the Holders; or
(f) to permit the substitution by Holders of designated Company debt
instruments for the Pledged Notes as Collateral under this Agreement.
Section 8.2 Supplemental Agreements With Consent of Holders.
------------------------------------------------------------
(a) With the consent of the Holders of not less than a majority of the
outstanding Forward Purchase Contracts voting together as one class, by Act
of said Holders delivered to the Company and the Agent, the Company, when
authorized by a Board Resolution, and the Agent may enter into an agreement
or agreements supplemental hereto, in form satisfactory to the Company and
the Agent, for the purpose of modifying in any manner the terms of the
Forward Purchase Contracts, or the provisions of this Agreement or the
rights of the Holders in respect of the Equity Units and Stripped Units;
provided, that, except as contemplated herein, no such supplemental
agreement shall, without the consent of the Holder of each Outstanding Unit
affected thereby:
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to be
Pledged to secure a Holder's Obligations under the Forward
Purchase Contract unless not adverse to Holders, impair the
right of the Holder of any Forward Purchase Contract to
receive distributions on the related Collateral (except as
provided in Section 8.1(f) and except for the rights of
Holders of Equity Units to substitute the Treasury
Securities for the Pledged Notes, Pledged Treasury
Consideration or Pledged Applicable Ownership Interest in
the Treasury Portfolio, or the rights of holders of Stripped
Units to substitute Notes or appropriate Treasury
Consideration or Applicable Ownership Interest in the
Treasury Portfolio for the Pledged Treasury Securities) or
otherwise adversely affect the Holder's rights in or to such
Collateral;
(3) reduce any Contract Adjustment Payments, if any, or any
Deferred Contract Adjustment Payment, or change any place
where, or the coin or currency in which, any Contract
Adjustment Payment is payable;
(4) impair the right to institute suit for the enforcement of
any Forward Purchase Contract, any Contract Adjustment
Payment, if any, or any Deferred Contract Adjustment
Payment, if any;
(5) impair the right to institute suit for the enforcement of
any Forward Purchase Contract;
(6) reduce the number of shares of Common Stock to be purchased
pursuant to any Forward Purchase Contract, increase the
price to purchase shares of Common Stock upon settlement of
any Forward Purchase Contract, change the Stock Purchase
Date or otherwise materially adversely affect the Holder's
rights under any Forward Purchase Contract; or
(7) reduce the percentage of the outstanding Forward 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 Equity Units or the Stripped Units, then only the
affected class of Holder 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 or 100% of such class, as the case
may be; provided further, however, that no agreement, whether with or
without the consent of Holders shall affect Section 3.16.
(b) 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 provided and (subject
to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental agreement is authorized or
permitted by this Agreement. The Agent may, but shall not be obligated to, enter
into any such supplemental agreement which affects the Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 8.4 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 Company May Consolidate, Etc., Only on Certain Terms.
-----------------------------------------------------------------
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless:
(a) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance, transfer or lease the
properties and assets of the Company substantially as an entirety shall be
a corporation, partnership, limited liability company or trust, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume every covenant of this Agreement, the Forward Purchase Contracts,
the Notes, the Remarketing Agreement and the Pledge Agreement on the part
of the Company to be performed or observed 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
Person;
(b) immediately after giving effect to such transaction, no default
under this Agreement, the Forward Purchase Contracts, the Remarketing
Agreement or the Pledge Agreement shall have happened and be continuing;
and
(c) the Company has delivered to the Agent an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental agreement(s) comply
with this Section 9.1 and that all conditions precedent herein provided for
relating to such transaction have been complied with.
This Section 9.1 shall not apply to any merger or consolidation in which
the Company is the surviving corporation.
Section 9.2 Successor Substituted.
----------------------------------
(a) Upon any consolidation with or merger of the Company into any
other Person, or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with
Section 9.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Agreement with the same effect
as if such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Agreement, the Forward
Purchase Contracts, the Notes, the Units, the Remarketing Agreement and the
Pledge Agreement.
(b) 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 Units thereafter
to be issued as may be appropriate.
ARTICLE X.
COVENANTS
Section 10.1 Performance Under Forward Purchase Contracts.
----------------------------------------------------------
The Company covenants and agrees for the benefit of the Holders from time
to time of the Equity Units and Stripped Units that it will duly and punctually
perform its obligations under the Forward Purchase Contracts in accordance with
the terms of the Forward Purchase Contracts and this Agreement. In the case of
Early Settlement pursuant to Section 5.9, if the United States federal
securities laws so require, the Company will use commercially reasonable efforts
to (i) have in effect a registration statement covering the shares of Common
Stock to be delivered in respect of the Forward Purchase Contracts being settled
and (ii) provide a prospectus in connection therewith, in each case that may be
used in connection with such Early Settlement.
Section 10.2 Maintenance of Office or Agency.
---------------------------------------------
(a) The Company will maintain in the Borough of Manhattan, The City of
New York an office or agency where Certificates may be presented or
surrendered for payment of Contract Adjustment Payments, acquisition of
shares of Common Stock upon settlement of the Forward Purchase Contracts on
any Settlement Date 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 Equity Units and where notices and demands to or upon the Company in
respect of the Equity Units and Stripped Units 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, Office of the Agent in The City of New York, and
the Company hereby appoints the Agent as its agent to receive all such
presentations, surrenders, notices and demands.
(b) 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, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Agent of any such
designation or rescission and of any change in the location of any such
other office or agency. The Company hereby designates as the place of
payment for the Equity Units and Stripped Units the Office of the Agent in
The City of New York and appoints the Agent at the Office of the Agent in
The City of New York as paying agent in such city.
Section 10.3 Company to Reserve Common Stock.
---------------------------------------------
The Company shall at all times prior to the Stock Purchase 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 Forward Purchase Contracts constituting a part of
the Equity Units and Stripped Units 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 Forward Purchase Contract
constituting a part of the Outstanding Units will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
Section 10.5 Statements of Officer of the Company as to Default.
----------------------------------------------------------------
The Company will deliver to the Agent, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officer's
Certificate, stating whether or not to the best knowledge of the signer 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 such
officer may have knowledge.
Section 10.6 ERISA.
-------------------
Each Holder from time to time of the Equity Units or Stripped Units
which is a Plan hereby represents that its acquisition of the Equity Units or
Stripped Units 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.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
AMERICAN ELECTRIC POWER COMPANY, INC.
By: /s/ X. X. Xxxx
Name: X. X. Xxxx
Title: Treasurer
THE BANK OF NEW YORK,
as Forward Purchase Contract Agent
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
EXHIBIT A
FORM OF EQUITY UNITS CERTIFICATE
[FOR INCLUSION IN GLOBAL CERTIFICATES ONLY -- THIS CERTIFICATE IS A GLOBAL
CERTIFICATE WITHIN THE MEANING OF THE FORWARD PURCHASE CONTRACT AGREEMENT (AS
HEREINAFTER DEFINED) AND IS REGISTERED IN THE NAME OF THE CLEARING AGENCY OR A
NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS CERTIFICATE IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH CLEARING AGENCY OR
A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE FORWARD
PURCHASE CONTRACT AGREEMENT.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the Company or
its agent for registration of transfer, exchange or payment, and any Certificate
issued is registered in the name of Cede & Co., or such other name as requested
by an authorized representative of The Depository Trust Company, and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.]
(Form of Face of Equity Units Certificate)
No. ______________ CUSIP No. ____________
Number of Equity Units____________
This Equity Units Certificate certifies that [For inclusion in Global
Certificates only -- Cede & Co.] is the registered Holder of the number of
Equity Units set forth above [For inclusion in Global Certificates only - or
such other number of Equity Units reflected in the Schedule of Increases or
Decreases in Global Certificates attached hereto]. Each Equity Unit represents
(i) either (a) beneficial ownership by the Holder of one 5.75% Senior Note Due
August 16, 2007 (the "Note") of American Electric Power Company, Inc., a New
York corporation (the "Company") having a principal amount of $50, subject to
the Pledge of such Note by such Holder pursuant to the Pledge Agreement, or (b)
if the Note has been remarketed by the Remarketing Agent (or if the Holder has
elected not to have the Note remarketed by delivering the Opt-out Treasury
Consideration specified by the Remarketing Agent), the Agent-purchased Treasury
Consideration, subject to the Pledge of such Treasury Consideration by such
Holder pursuant to the Pledge Agreement, or (c) if a Tax Event Redemption has
occurred, the Applicable Ownership Interest in the Treasury Portfolio subject to
the Pledge of such Applicable Ownership Interest in the Treasury Portfolio
pursuant to the Pledge Agreement, and (ii) the rights and obligations of the
Holder under one Forward Purchase Contract with the Company. All capitalized
terms used herein which are defined in the Forward Purchase Contract Agreement
have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Note, the appropriate Treasury
Consideration or the Applicable Ownership Interest in the Treasury Portfolio, as
the case may be, constituting part of each Equity Unit evidenced hereby has been
pledged to the Collateral Agent, for the benefit of the Company, to secure the
obligations of the Holder under the Forward Purchase Contract comprising a part
of such Equity Unit.
The Pledge Agreement provides that all payments in respect of the Pledged
Notes, Pledged Treasury Consideration or Pledged Applicable Ownership Interest
in the Treasury Portfolio received by the Collateral Agent shall be paid by the
Collateral Agent by wire transfer in same day funds (i) in the case of (A)
quarterly cash distributions on Equity Units which include Pledged Notes,
Pledged Treasury Consideration or Pledged Applicable Ownership Interest in the
Treasury Portfolio and (B) any payments in respect of the Notes, Treasury
Consideration or Applicable Ownership Interest in the Treasury Portfolio, as the
case may be, 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
10:00 a.m., New York City time, on the Business Day such payment is received by
the Collateral Agent (provided that in the event such payment is received by the
Collateral Agent on a day that is not a Business Day or after 9:00 a.m., New
York City time, on a Business Day, then such payment shall be made no later than
9:30 a.m., New York City time, on the next succeeding Business Day) and (ii) in
the case of payments in respect of any Pledged Notes, Pledged Treasury
Consideration or Pledged Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, to be paid upon settlement of such Holder's
obligations to purchase Common Stock under the Forward Purchase Contract, to the
Company on the Stock Purchase Date (as defined herein) in accordance with the
terms of the Pledge Agreement, in full satisfaction of the respective
obligations of the Holders of the Equity Units of which such Pledged Notes,
Pledged Treasury Consideration or Pledged Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, are a part under the Forward Purchase
Contracts forming a part of such Equity Units. Quarterly distributions on Equity
Units which include Pledged Notes, Pledged Treasury Consideration or Pledged
Applicable Ownership Interest in the Treasury Portfolio, as the case may be,
which are payable quarterly in arrears on February 16, May 16, August 16 and
November 16, each year, commencing August 16, 2002 (a "Payment Date"), shall,
subject to receipt thereof by the Agent from the Collateral Agent (if the
Collateral Agent is the registered owner thereof), be paid by the Agent to the
Person in whose name this Equity Units Certificate (or a Predecessor Equity
Units Certificate) is registered at the close of business on the Record Date for
such Payment Date.
Each Forward Purchase Contract evidenced hereby obligates the Holder of
this Equity Units Certificate to purchase, and the Company to sell, on August
16, 2005 (the "Stock Purchase Date"), at a price equal to $50 (the "Stated
Amount"), a number of newly issued shares of common stock, $6.50 par value per
share ("Common Stock"), of the Company, equal to the Settlement Rate unless on
or prior to the Stock Purchase Date there shall have occurred a Termination
Event or a Cash Settlement, Early Settlement or Merger Early Settlement with
respect to the Equity Units of which such Forward Purchase Contract is a part,
all as provided in the Forward Purchase Contract Agreement and more fully
described on the reverse hereof. The Purchase Price (as defined herein) for the
shares of Common Stock purchased pursuant to each Forward Purchase Contract
evidenced hereby, if not paid earlier, shall be paid on the Stock Purchase Date
by application of payments received in respect of the Pledged Notes, Pledged
Treasury Consideration or Pledged Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, pledged to secure the obligations of the Holder
under such Forward Purchase Contract in accordance with the terms of the Pledge
Agreement.
Payments on the Notes, the appropriate Treasury Consideration or the
Applicable Ownership Interest in the Treasury Portfolio, as the case may be,
will be payable at the Office of the Agent in The City of New York or, at the
option of the Company, by check mailed to the address of the Person entitled
thereto as such address appears on the Equity Units Register or by wire transfer
to an account specified by such Person at least five Business Days prior to the
applicable Payment Date.
The Company shall pay on each Payment Date in respect of each Forward
Purchase Contract forming part of an Equity Unit evidenced hereby an amount (the
"Contract Adjustment Payment") equal to 3.50% per year of the Stated Amount,
computed on the basis of a 360-day year of twelve 30-day months, subject to
deferral at the option of the Company as provided in the Forward Purchase
Contract Agreement and more fully described on the reverse hereof (provided that
if any date on which a Contract Adjustment Payment is to be made on the Forward
Purchase Contracts is not a Business Day, then payment of such Contract
Adjustment Payment payable on such date will be made on the next succeeding day
which is a Business Day, and no interest or payment will be paid in respect of
such delay, except that if such next succeeding Business Day is in the next
succeeding calendar year, then such payment will be made on the immediately
preceding Business Day). Such Contract Adjustment Payments shall be payable to
the Person in whose name this Equity Units Certificate (or a Predecessor Equity
Units 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
The City of New York or, at the option of the Company, by check mailed to the
address of the Person entitled thereto as such address appears on the Equity
Units Register or by wire transfer to the account designated to the Agent by a
prior written notice by such Person delivered at least five Business Days prior
to the applicable Payment Date. 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 Equity Units Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Forward Purchase Contract
Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
AMERICAN ELECTRIC POWER COMPANY, INC.
By: _____________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder
under the Forward Purchase
Contracts evidenced hereby)
By: THE BANK OF NEW YORK, not individually but
solely as Attorney-in-Fact of such Holder
By: __________________________________________
Authorized Signatory
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Equity Units Certificates referred to in the
within-mentioned Forward Purchase Contract Agreement.
THE BANK OF NEW YORK,
as Forward Purchase Contract Agent
Dated: June 11, 2002 By: ___________________________________
Authorized Signatory
(Form of Reverse of Equity Units Certificate)
Each Forward Purchase Contract evidenced hereby is governed by a Forward
Purchase Contract Agreement, dated as of June 11, 2002 (as may be supplemented
from time to time, the "Forward Purchase Contract Agreement"), between the
Company and The Bank of New York, as Forward Purchase Contract Agent (including
its successors thereunder, herein called the "Agent"), to which Forward 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 Equity Units Certificates are, and are to be,
executed and delivered.
Each Forward Purchase Contract evidenced hereby obligates the Holder of
this Equity Units Certificate to purchase, and the Company to sell, on the Stock
Purchase Date at a price equal to $50 (the "Purchase Price"), a number of shares
of Common Stock of the Company equal to the Settlement Rate, unless, on or prior
to the Stock Purchase Date, there shall have occurred a Termination Event or an
Early Settlement, Merger Early Settlement or Cash Settlement with respect to the
Units of which such Forward Purchase Contract is a part. The "Settlement Rate"
is equal to (a) if the Applicable Market Value (as defined below) is greater
than or equal to $49.08 (the "Threshold Appreciation Price"), 1.0187 shares of
Common Stock per Forward Purchase Contract, (b) if the Applicable Market Value
is less than the Threshold Appreciation Price but is greater than $40.90, the
number of shares of Common Stock per Forward Purchase Contract equal to the
Stated Amount of the related Equity Units divided by the Applicable Market Value
and (c) if the Applicable Market Value is less than or equal to $40.90, 1.2225
shares of Common Stock per Forward Purchase Contract, in each case subject to
adjustment as provided in the Forward Purchase Contract Agreement. No fractional
shares of Common Stock will be issued upon settlement of Forward Purchase
Contracts, as provided in the Forward Purchase Contract Agreement.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 consecutive Trading Days ending on the
third Trading Day immediately preceding the Stock Purchase Date.
The "Closing Price" of the Common Stock on any date of determination means
the closing sale price (or, if no closing price is reported, the last reported
sale price) of the Common Stock on the New York Stock Exchange (the "NYSE") on
such date or, if the Common Stock is not listed for trading on the NYSE on any
such date, as reported in the composite transactions for the principal United
States securities exchange on which the Common Stock is so listed, or if the
Common Stock is not so listed on a United States national or regional securities
exchange, as reported by The NASDAQ Stock Market, or, if the Common Stock is not
so reported, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (A) is not suspended
from trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (B) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of the Common
Stock.
Each Forward Purchase Contract evidenced hereby may be settled prior to the
Stock Purchase Date through Early Settlement or Merger Early Settlement, and may
be settled on the Stock Purchase Date through Cash Settlement, all in accordance
with the terms of the Forward Purchase Contract Agreement.
In accordance with the terms of the Forward Purchase Contract Agreement,
the Holder of this Equity Units Certificate shall pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Forward Purchase Contract
evidenced hereby (i) by effecting a Cash Settlement, Early Settlement or Merger
Early Settlement, (ii) by application of payments received in respect of the
Pledged Treasury Consideration acquired from the proceeds of a remarketing of
the related Pledged Notes underlying the Equity Units represented by this Equity
Units Certificate, (iii) if the Holder has elected not to participate in the
remarketing, by application of payments received in respect of the Pledged
Treasury Consideration deposited by such Holder in respect of such Forward
Purchase Contract, or (iv) if a Tax Event Redemption has occurred prior to the
successful remarketing of the Notes, by application of payments received in
respect of the Pledged Applicable Ownership Interest in the Treasury Portfolio
purchased by the Collateral Agent on behalf of the Holder of this Equity Units
Certificate. If, as provided in the Forward Purchase Contract Agreement, upon
the occurrence of the Last Failed Remarketing, the Collateral Agent, for the
benefit of the Company, exercises its rights as a secured creditor with respect
to the Pledged Notes related to this Equity Units Certificate, any accrued and
unpaid interest on such Pledged Notes will become payable by the Company to the
Holder of this Equity Units Certificate in the manner provided for in the
Forward Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Forward Purchase Contract or deliver any certificates or book-entry
interest therefor to the Holder unless it shall have received payment in full of
the aggregate Purchase Price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
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
Notes, but only to the extent instructed by the Holders as described below. Upon
receipt of notice of any meeting at which holders of Notes are entitled to vote
or upon the solicitation of consents, waivers or proxies of holders of Notes,
the Agent shall, as soon as practicable thereafter, mail to the Holders of
Equity Units a notice (a) containing such information as is contained in the
notice or solicitation, (b) stating that each such 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 Notes entitled to vote) shall be
entitled to instruct the Agent as to the exercise of the voting rights
pertaining to the Pledged Notes constituting a part of such Holder's Equity
Units and (c) stating the manner in which such instructions may be given. Upon
the written request of the Holders of Equity Units 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 number
of Pledged Notes as to which any particular voting instructions are received. In
the absence of specific instructions from the Holder of an Equity Unit, the
Agent shall abstain from voting the Pledged Note evidenced by such Equity Units.
The Equity Units Certificates are issuable only in registered form and only
in denominations of a single Equity Unit and any integral multiple thereof. The
transfer of any Equity Units Certificate will be registered and Equity Units
Certificates may be exchanged as provided in the Forward Purchase Contract
Agreement. The Equity Units Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents permitted by the
Forward 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. The Holder of an Equity Units may
substitute for the Pledged Notes securing its obligations under the related
Forward Purchase Contract Treasury Securities in accordance with the terms of
the Forward Purchase Contract Agreement and the Pledge Agreement. From and after
such Collateral Substitution, the Units for which such Pledged Treasury
Securities secure the Holder's obligation under the Forward Purchase Contract
shall be referred to as a "Stripped Unit." A Holder that elects to substitute a
Treasury Security for Pledged Notes thereby creating Stripped Units, shall be
responsible for any fees or expenses payable in connection therewith. Except as
provided in the Forward Purchase Contract Agreement, for so long as the Forward
Purchase Contract underlying an Equity Unit remains in effect, such Equity Unit
shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Equity Unit in respect of the Pledged Note and
Forward Purchase Contract constituting such Equity Unit may be transferred and
exchanged only as an Equity Unit.
A Holder of Stripped Units may reestablish Equity Units by delivering to
the Collateral Agent Notes in exchange for the release of the Pledged Treasury
Securities in accordance with the terms of the Forward Purchase Contract
Agreement and the Pledge Agreement.
Subject to the next succeeding paragraph, the Company shall pay on each
Payment Date, the Contract Adjustment Payments, if any, payable in respect of
each Forward Purchase Contract to the Person in whose name the Equity Units
Certificate evidencing such Forward Purchase Contract is registered at the close
of business on the Record Date for such Payment Date. Contract Adjustment
Payments, if any, will be payable at the office of the Agent in the City of New
York or, at the option of the Company, by check mailed to the address of the
Person entitled thereto at such address as it appears on the Equity Units
Register or by wire transfer to the account designated by such Person in writing
at least five Business Days prior to the applicable Payment Date.
The Company shall have the right, at any time prior to the Stock Purchase
Date, to defer the payment of any or all of the Contract Adjustment Payments
otherwise payable on any Payment Date, but only if the Company shall give the
Holders and the Agent written notice of its election to defer Contract
Adjustment Payments as provided in the Forward Purchase Contract Agreement. Any
Contract Adjustment Payments so deferred shall, to the extent permitted by law,
bear additional Contract Adjustment Payments thereon at the rate of 5.75% per
year (computed on the basis of a 360-day year of twelve 30-day months),
compounding on each succeeding Payment Date, until paid in full (such deferred
installments of Contract Adjustment Payments, if any, together with the
additional Contract Adjustment Payments, if any, accrued thereon, are referred
to herein as the "Deferred Contract Adjustment Payments"). Deferred Contract
Adjustment Payments, if any, shall be due on the next succeeding Payment Date
except to the extent that payment is deferred pursuant to the Forward Purchase
Contract Agreement. No Contract Adjustment Payments may be deferred to a date
that is after the Stock Purchase Date and no such deferral period may end other
than on a Payment Date.
In the event that the Company elects to defer the payment of Contract
Adjustment Payments on the Forward Purchase Contracts until a Payment Date prior
to the Stock Purchase Date, then all Deferred Contract Adjustment Payments, if
any, shall be payable to the registered Holders as of the close of business on
the Record Date immediately preceding such Payment Date.
In the event the Company exercises its option to defer the payment of
Contract Adjustment Payments, then, until the Deferred Contract Adjustment
Payments have been paid, the Company shall not declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its Common Stock other than (i)
purchases, redemptions or acquisitions of shares of Common Stock in connection
with any employment contract, benefit plan or other similar arrangement with or
for the benefit of employees, officers or directors or a stock purchase or
dividend reinvestment plan, or the satisfaction by the Company of its
obligations pursuant to any contract or security outstanding on the date the
Company exercises its rights to defer the Contract Adjustment Payments; (ii) as
a result of a reclassification of the Company's Capital Stock or the exchange or
conversion of one class or series of for another class or series of the
Company's Capital Stock; (iii) the purchase of fractional interests in shares of
any series of the Company's Common Stock pursuant to the conversion or exchange
provisions of such Common Stock or the security being converted or exchanged;
(iv) dividends or distributions in any series of the Company's Common Stock (or
rights to acquire Common Stock) or repurchases, acquisitions or redemptions of
Common Stock in connection with the issuance or exchange of any series of Common
Stock (or securities convertible into or exchangeable for shares of the
Company's Common Stock); or (v) redemptions, exchanges or repurchases of any
rights outstanding under a shareholder rights plan or the declaration or payment
thereunder of a dividend or distribution of or with respect to rights in the
future.
The Forward Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
and obligations of the Holders to receive and the obligation of the Company to
pay Contract Adjustment Payments, if any, or any Deferred Contract Adjustment
Payments, and the rights of the 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 Stock
Purchase 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 to the Holders, at their addresses as they appear in the Equity Units
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Pledged Notes, Pledged Treasury Consideration or Pledged
Applicable Ownership Interest in the Treasury Portfolio, as the case may be,
from the Pledge in accordance with the provisions of the Pledge Agreement.
Upon registration of transfer of this Equity Units 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
Forward Purchase Contract Agreement), by the terms of the Forward Purchase
Contract Agreement and the Forward Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Forward Purchase
Contracts evidenced by this Equity Units 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 Equity Units Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Forward Purchase
Contracts forming part of the Equity Units evidenced hereby on its behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Forward 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 of the Forward Purchase
Contracts, covenants and agrees to perform such Holder's obligations under such
Forward Purchase Contracts, consents to the provisions of the Forward Purchase
Contract Agreement, irrevocably authorizes the Agent to enter into and perform
the Pledge Agreement on such Holder's behalf as attorney-in-fact, and consents
to and agrees to be bound by the Pledge of the Notes or the appropriate Treasury
Consideration or Applicable Ownership Interest in the Treasury Portfolio, as the
case may be, underlying this Equity Units Certificate pursuant to the Pledge
Agreement, provided, that upon a Termination Event, the rights of the Holder of
such Units under the Forward Purchase Contract may be enforced without regard to
any other rights or obligations. The Holder further covenants and agrees, that,
to the extent and in the manner provided in the Forward Purchase Contract
Agreement and the Pledge Agreement, but subject to the terms thereof, payments
in respect of the Pledged Notes, Pledged Treasury Consideration or Pledged
Applicable Ownership Interest in the Treasury Portfolio, as the case may be, to
be paid upon settlement of such Holder's obligations to purchase Common Stock
under the Forward Purchase Contract, shall be paid on the Stock Purchase Date by
the Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Forward Purchase Contract and such Holder shall acquire no right,
title or interest in such payments.
The Company and each Holder of an Equity Unit, and each Beneficial Owner
thereof, by its acceptance thereof or of its interest therein, further agrees to
treat (i) the purchase of Equity Units as the purchase of a unit consisting of
the Forward Purchase Contract and the Note and to allocate the purchase price of
the Equity Unit between the Note and the Forward Purchase Contract as $50 and
$0, respectively, and (ii) the holder as the owner of the applicable interest in
the Collateral Account, including the related Notes, Treasury Consideration or
Applicable Ownership Interest in the Treasury Portfolio, as the case may be.
Subject to certain exceptions, the provisions of the Forward Purchase
Contract Agreement may be amended with the consent of the Holders of a majority
of the Forward Purchase Contracts.
The Forward Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to its principles of conflicts of laws. The Company, the Agent and any agent of
the Company or the Agent may treat the Person in whose name this Equity Units
Certificate is registered as the owner of the Equity Units evidenced hereby for
the purpose of receiving quarterly payments on the Notes, the Treasury
Consideration or the Applicable Ownership Interest in the Treasury Portfolio, as
the case may be, receiving payments of Contract Adjustment Payments, if any, and
any Deferred Contract Adjustment Payments, performance of the Forward Purchase
Contracts and for all other purposes whatsoever (subject to the Record Date
provisions hereof), 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 Forward 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 Forward Purchase Contract Agreement is available for
inspection by any Holder at the Corporate Trust Office.
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
UNIF GIFT MIN ACT - Custodian
(cust) (minor)
Under Uniform Gifts to Minors Act
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
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 Equity Units Certificate and all rights thereunder, hereby
irrevocably constituting and appointing ___________________________ attorney to
transfer said Equity Units Certificate on the books of American Electric Power
Company, 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 Equity Units Certificate in every
particular, without alteration or enlargement or any change whatsoever.
Signature Guarantee: ___________________________.
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate or book-entry interest
for shares of Common Stock deliverable upon settlement on or after the Stock
Purchase Date of the Forward Purchase Contracts underlying the number of Equity
Units evidenced by this Equity Units 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 REGISTERED HOLDER and delivered to
a Person other than the Holder, please (i) print such Person's name Please print
name and address of and address and (ii) provide a guarantee of Registered
Holder: your signature:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
ELECTION TO SETTLE EARLY
The undersigned Holder of this Equity Units Certificate hereby irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Forward Purchase Contract Agreement with respect to the Forward Purchase
Contracts underlying the number of Equity Units evidenced by this Equity Units
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Forward Purchase Contracts underlying Equity
Units with an aggregate Stated Amount equal to $1,000 or an integral multiple
thereof. The undersigned Holder directs that a certificate or book-entry
interest 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 Equity Units Certificate representing any Equity
Units evidenced hereby as to which Early Settlement of the related Forward
Purchase Contracts is not effected, to the undersigned at the address indicated
below unless a different name and address have been indicated below. The Pledged
Notes, Pledged Treasury Consideration or Pledged Applicable Ownership Interest
in the Treasury Portfolio, as the case may be, 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 Units evidenced hereby as to which Early Settlement of the
related Forward Purchase Contracts is being elected:
If shares of Common Stock are to be EGISTERED HOLDER
registered in the name of
and delivered to and Pledged Notes, Please print name and address of
Pledged Treasury Consideration or Registered Holder:
Pledged Applicable Ownership
Interest in the Treasury Portfolio, as
the case may be, are to be transferred
to a Person other than the Holder,
please print such Person's name and
address:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
Transfer instructions for Pledged Notes, Pledged Treasury Consideration or
the Pledged Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, 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:
Stated Amount of the
Amount of Decrease in Amount of Increase in Global Certificate
Stated Amount of the Stated Amount of the Following Such Decrease Signature of
Date Global Certificate Global Certificate or Increase Authorized Signatory
EXHIBIT B
FORM OF STRIPPED UNITS CERTIFICATE
[FOR INCLUSION IN GLOBAL CERTIFICATES ONLY -- THIS CERTIFICATE IS A GLOBAL
CERTIFICATE WITHIN THE MEANING OF THE FORWARD PURCHASE CONTRACT AGREEMENT (AS
HEREINAFTER DEFINED) AND IS REGISTERED IN THE NAME OF A CLEARING AGENCY OR A
NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS CERTIFICATE IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH CLEARING AGENCY OR
A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE FORWARD
PURCHASE CONTRACT AGREEMENT.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the Company or
its agent for registration of transfer, exchange or payment, and any Certificate
issued is registered in the name of Cede & Co., or such other name as requested
by an authorized representative of The Depository Trust Company, and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.]
(Form of Face of Stripped Units Certificate)
No. CUSIP No. ____________
Number of Stripped Units
This Stripped Units Certificate certifies that [For inclusion in Global
Certificates only -- Cede & Co.] is the registered Holder of the number of
Stripped Units set forth above [For inclusion in Global Certificates only - or
such other number of Stripped Units reflected in the Schedule of Increases or
Decreases in Global Certificate attached hereto]. Each Stripped Unit represents
(i) a 1/20 undivided beneficial ownership interest in a Treasury Security,
subject to the Pledge of such interest in such Treasury Security by such Holder
pursuant to the Pledge Agreement, and (ii) the rights and obligations of the
Holder under one Forward Purchase Contract with American Electric Power Company,
Inc., a New York corporation (the "Company"). All capitalized terms used herein
which are defined in the Forward Purchase Contract Agreement have the meaning
set forth therein.
Pursuant to the Pledge Agreement, the Treasury Security constituting part
of each Stripped Unit evidenced hereby has been pledged to the Collateral Agent,
for the benefit of the Company, to secure the obligations of the Holder under
the Forward Purchase Contract comprising a part of such Stripped Units.
Each Forward Purchase Contract evidenced hereby obligates the Holder of
this Stripped Units Certificate to purchase, and the Company to sell, on the
Stock Purchase Date, at a price equal to $50 (the "Stated Amount"), a number of
shares of common stock, $6.50 par value per share ("Common Stock"), of the
Company, equal to the Settlement Rate, unless on or prior to the Stock Purchase
Date there shall have occurred a Termination Event or an Early Settlement,
Merger Early Settlement or Cash Settlement with respect to the Stripped Units of
which such Forward Purchase Contract is a part, all as provided in the Forward
Purchase Contract Agreement and more fully described on the reverse hereof. The
Purchase Price (as defined herein) for the shares of Common Stock purchased
pursuant to each Forward Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Stock Purchase Date by application of payments
received in respect of the Pledged Treasury Securities pledged to secure the
obligations under such Forward Purchase Contract in accordance with the terms of
the Pledge Agreement.
The Company shall pay on each Payment Date in respect of each Forward
Purchase Contract forming part of a Stripped Units evidenced hereby an amount
(the "Contract Adjustment Payments") equal to 3.50% per year of the Stated
Amount, computed on the basis of a 360-day year of twelve 30-day months, subject
to deferral at the option of the Company as provided in the Forward Purchase
Contract Agreement and more fully described on the reverse hereof (provided that
if any date on which Contract Adjustment Payments are to be made on the Forward
Purchase Contracts is not a Business Day, then payment of the Contract
Adjustment Payments payable on that date will be made on the next succeeding day
which is a Business Day, and no interest or payment will be paid in respect of
the delay, except that if such next succeeding Business Day is in the next
succeeding calendar year, such payment will be made on the immediately preceding
Business Day). Such Contract Adjustment Payments shall be payable to the Person
in whose name this Stripped Units Certificate (or a Predecessor Stripped Units
Certificate) is registered at the close of business on the Record Date for such
Payment Date.
Contract Adjustment Payments, if any, will be payable at the Office of the
Agent in the City of New York or, at the option of the Company, by check mailed
to the address of the Person entitled thereto at such address as it appears on
the Stripped Units Register or by wire transfer to the account designated by
such Person in writing at least five Business Days prior to the applicable
Payment Date.
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 Stripped Units Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Forward Purchase Contract
Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
AMERICAN ELECTRIC POWER COMPANY, INC.
By: ____________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations of such
Holder under the Forward Purchase Contracts)
By: THE BANK OF NEW YORK, not individually but
solely as Attorney-in-Fact of such Holder
By: ____________________________________
Authorized Signatory
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Stripped Units referred to in the within-mentioned
Forward Purchase Contract Agreement.
THE BANK OF NEW YORK,
as Forward Purchase Contract Agent
Dated: June 11, 2002 By:_____________________________________
Authorized Signatory
(Reverse of Stripped Units Certificate)
Each Forward Purchase Contract evidenced hereby is governed by a Forward
Purchase Contract Agreement, dated as of June 11, 2002 (as may be supplemented
from time to time, the "Forward Purchase Contract Agreement"), between the
Company and The Bank of New York, as Forward Purchase Contract Agent (including
its successors thereunder, herein called the "Agent"), to which Forward 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 Stripped Units Certificates are, and are to be,
executed and delivered.
Each Forward Purchase Contract evidenced hereby obligates the Holder of
this Stripped Units Certificate to purchase, and the Company to sell, on the
Stock Purchase Date at a price equal to $50 (the "Purchase Price"), a number of
shares of Common Stock of the Company equal to the Settlement Rate, unless, on
or prior to the Stock Purchase Date, there shall have occurred a Termination
Event or an Early Settlement or Merger Early Settlement with respect to the
Stripped Units of which such Forward Purchase Contract is a part. The
"Settlement Rate" is equal to (a) if the Applicable Market Value (as defined
below) is greater than or equal to $49.08 (the "Threshold Appreciation Price"),
1.0187 shares of Common Stock per Forward Purchase Contract, (b) if the
Applicable Market Value is less than the Threshold Appreciation Price but is
greater than $40.90, the number of shares of Common Stock per Forward Purchase
Contract equal to the Stated Amount of the related Stripped Units divided by the
Applicable Market Value and (c) if the Applicable Market Value is less than or
equal $40.90, 1.2225 shares of Common Stock per Forward Purchase Contract, in
each case subject to adjustment as provided in the Forward Purchase Contract
Agreement. No fractional shares of Common Stock will be issued upon settlement
of Forward Purchase Contracts, as provided in the Forward Purchase Contract
Agreement.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 consecutive Trading Days ending on the
third Trading Day immediately preceding the Stock Purchase Date.
The "Closing Price" of the Common Stock on any date of determination
means the closing sale price (or, if no closing price is reported, the last
reported sale price) of the Common Stock on the New York Stock Exchange (the
"NYSE") on such date or, if the Common Stock is not listed for trading on the
NYSE on any such date, as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, or if the Common Stock is not so listed on a United States national or
regional securities exchange, as reported by The NASDAQ Stock Market, or, if the
Common Stock is not so reported, the last quoted bid price for the Common Stock
in the over-the-counter market as reported by the National Quotation Bureau or
similar organization, or, if such bid price is not available, the market value
of the Common Stock on such date as determined by a nationally recognized
independent investment banking firm retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (A) is not suspended
from trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (B) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of the Common
Stock.
Each Forward Purchase Contract evidenced hereby may be settled prior to the
Stock Purchase Date through Early Settlement or Merger Early Settlement, and may
be settled on the Stock Purchase Date through Cash Settlement, all in accordance
with the terms of the Forward Purchase Contract Agreement.
In accordance with the terms of the Forward Purchase Contract Agreement,
the Holder of this Stripped Units Certificate shall pay the Purchase Price for
the shares of Common Stock purchased pursuant to each Forward Purchase Contract
evidenced hereby (i) by effecting an Early Settlement, Merger Early Settlement
or Cash Settlement or (ii) by application of payments received in respect of the
Pledged Treasury Securities underlying the Stripped Units represented by this
Stripped Units Certificate.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Forward Purchase Contract or deliver any certificates or book-entry
interest therefor to the Holder unless it shall have received payment in full of
the aggregate Purchase Price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
The Stripped Units Certificates are issuable only in registered form and
only in denominations of a single Stripped Units and any integral multiple
thereof. The transfer of any Stripped Units Certificate will be registered and
Stripped Units Certificates may be exchanged as provided in the Forward Purchase
Contract Agreement. The Stripped Units Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Forward 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. The Holder of a Stripped
Unit may substitute for the Pledged Treasury Securities securing its obligations
under the related Forward Purchase Contract Notes in accordance with the terms
of the Forward Purchase Contract Agreement and the Pledge Agreement. From and
after such substitution, the Units for which such Pledged Notes secure the
Holder's obligation under the Forward Purchase Contract shall be referred to as
an "Equity Unit." A Holder that elects to substitute Notes for Pledged Treasury
Securities, thereby reestablishing Equity Units, shall be responsible for any
fees or expenses payable in connection therewith. Except as provided in the
Forward Purchase Contract Agreement, for so long as the Forward Purchase
Contract underlying a Stripped Unit remains in effect, such Stripped Units shall
not be separable into its constituent parts, and the rights and obligations of
the Holder of such Stripped Units in respect of the Pledged Treasury Security
and the Forward Purchase Contract constituting such Stripped Units may be
transferred and exchanged only as a Stripped Unit.
Subject to the next succeeding paragraph, the Company shall pay on each
Payment Date, the Contract Adjustment Payments, if any, payable in respect of
each Forward Purchase Contract to the Person in whose name the Stripped Units
Certificate evidencing such Forward Purchase Contract is registered at the close
of business on the Record Date for such Payment Date. Contract Adjustment
Payments, if any, will be payable at the Office of the Agent in the City of New
York or, at the option of the Company, by check mailed to the address of the
Person entitled thereto at such address as it appears on the Stripped Units
Register or by wire transfer to the account designated by such Person in writing
at least five Business Days prior to the applicable Payment Date.
The Company shall have the right, at any time prior to the Stock Purchase
Date, to defer the payment of any or all of the Contract Adjustment Payments
otherwise payable on any Payment Date, but only if the Company shall give the
Holders and the Agent written notice of its election to defer Contract
Adjustment Payments as provided in the Forward Purchase Contract Agreement. Any
Contract Adjustment Payments so deferred shall, to the extent permitted by law,
bear additional Contract Adjustment Payments thereon at the rate of 5.75% per
year (computed on the basis of a 360-day year of twelve 30-day months),
compounding on each succeeding Payment Date, until paid in full (such deferred
installments of Contract Adjustment Payments, if any, together with the
additional Contract Adjustment Payments, if any, accrued thereon, are referred
to herein as the "Deferred Contract Adjustment Payments"). Deferred Contract
Adjustment Payments, if any, shall be due on the next succeeding Payment Date
except to the extent that payment is deferred pursuant to the Forward Purchase
Contract Agreement. No Contract Adjustment Payments may be deferred to a date
that is after the Stock Purchase Date and no such deferral period may end other
than on a Payment Date.
In the event that the Company elects to defer the payment of Contract
Adjustment Payments on the Forward Purchase Contracts until a Payment Date prior
to the Stock Purchase Date, then all Deferred Contract Adjustment Payments, if
any, shall be payable to the registered Holders as of the close of business on
the Record Date immediately preceding such Payment Date.
In the event the Company exercises its option to defer the payment of
Contract Adjustment Payments, then, until the Deferred Contract Adjustment
Payments have been paid, the Company shall not declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its Common Stock other than (i)
purchases, redemptions or acquisitions of shares of Common Stock in connection
with any employment contract, benefit plan or other similar arrangement with or
for the benefit of employees, officers or directors or a stock purchase or
dividend reinvestment plan, or the satisfaction by the Company of its
obligations pursuant to any contract or security outstanding on the date the
Company exercises its rights to defer the Contract Adjustment Payments; (ii) as
a result of a reclassification of the Company's Capital Stock or the exchange or
conversion of one class or series of the Company's Capital Stock for another
class or series of the Company's Capital Stock; (iii) the purchase of fractional
interests in shares of any series of the Company's Common Stock pursuant to the
conversion or exchange provisions of such Common Stock or the security being
converted or exchanged; (iv) dividends or distributions in any series of the
Company's Common Stock (or rights to acquire Common Stock) or repurchases,
acquisitions or redemptions of Common Stock in connection with the issuance or
exchange of any series of Common Stock (or securities convertible into or
exchangeable for shares of the Company's Common Stock; or (v) redemptions,
exchanges or repurchases of any rights outstanding under a shareholder rights
plan or the declaration or payment thereunder of a dividend or distribution of
or with respect to rights in the future.
The Forward Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
and obligations of Holders to receive and the obligation of the Company to pay
Contract Adjustment Payments, if any, or any Deferred Contract Adjustment
Payments, 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
Stock Purchase 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 to the Holders, at their addresses as they appear in the
Stripped Units Register. Upon and after the occurrence of a Termination Event,
the Collateral Agent shall release the Pledged Treasury Securities from the
Pledge in accordance with the provisions of the Pledge Agreement.
Upon registration of transfer of this Stripped Units 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
Forward Purchase Contract Agreement), by the terms of the Forward Purchase
Contract Agreement and the Forward Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Forward Purchase
Contracts evidenced by this Stripped Units 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 Stripped Units Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Forward Purchase
Contracts forming part of the Stripped Units evidenced hereby on its behalf as
its attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Forward 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 of the Forward Purchase
Contracts, covenants and agrees to perform such Holder's obligations under such
Forward Purchase Contracts, consents to the provisions of the Forward Purchase
Contract Agreement, irrevocably authorizes the Agent to enter into and perform
the Pledge Agreement on such Holder's behalf as attorney-in-fact, and consents
to and agrees to be bound by the Pledge of the Treasury Securities underlying
this Stripped Units Certificate pursuant to the Pledge Agreement, provided, that
upon a Termination Event, the rights of the Holder of such Units under the
Forward Purchase Contract may be enforced without regard to any other rights or
obligations. The Holder further covenants and agrees, that, to the extent and in
the manner provided in the Forward Purchase Contract Agreement and the Pledge
Agreement, but subject to the terms thereof, payments in respect of the Pledged
Treasury Securities, to be paid upon settlement of such Holder's obligations to
purchase Common Stock under the Forward Purchase Contract, shall be paid on the
Stock Purchase Date by the Collateral Agent to the Company in satisfaction of
such Holder's obligations under such Forward Purchase Contract and such Holder
shall acquire no right, title or interest in such payments.
The Company and each Holder of any Stripped Units, and each Beneficial
Owner thereof, by its acceptance thereof or of its interest therein, further
agrees to treat (i) the formation of Stripped Units as the purchase of a unit
consisting of the Purchase Contract and the Treasury Securities and (ii) the
holder as the owner of the applicable interest in the Collateral Account,
including the Treasury Securities.
Subject to certain exceptions, the provisions of the Forward Purchase
Contract Agreement may be amended with the consent of the Holders of a majority
of the Forward Purchase Contracts.
The Forward Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to its principles of conflicts of laws.
The Company, the Agent and any agent of the Company or the Agent may treat
the Person in whose name this Stripped Units Certificate is registered as the
owner of the Stripped Units evidenced hereby for the purpose of receiving any
Contract Adjustment Payments and any Deferred Contract Adjustment Payments,
performance of the Forward Purchase Contracts and for all other purposes
whatsoever (subject to the Record Date provisions hereof), 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 Forward 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 Forward Purchase Contract Agreement is available for
inspection by any Holder at the Corporate Trust Office.
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
UNIF GIFT MIN ACT - Custodian
(cust) (minor)
Under Uniform Gifts to Minors Act
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
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 Stripped Units Certificate and all rights thereunder, hereby
irrevocably constituting and appointing ____________________________ attorney to
transfer said Stripped Units Certificate on the books of American Electric Power
Company, 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 Stripped Units Certificate
in every particular, without alteration or enlargement or any change
whatsoever.
Signature Guarantee: ________________________
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate or book-entry interest
for shares of Common Stock deliverable upon settlement on or after the Stock
Purchase Date of the Forward Purchase Contracts underlying the number of
Stripped Units evidenced by this Stripped Units 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 REGISTERED HOLDER
name of and delivered to a Person other
than the Holder, please (i) print such Please print name and address of
Person's name and address and (ii) Registered Holder:
provide a guarantee of your signature:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
ELECTION TO SETTLE EARLY
The undersigned Holder of this Stripped Units Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Forward Purchase Contract Agreement with respect to the Forward
Purchase Contracts underlying the number of Stripped Units evidenced by this
Stripped Units Certificate specified below. The option to effect Early
Settlement may be exercised only with respect to Forward Purchase Contracts
underlying Stripped Units with an aggregate Stated Amount equal to $1,000 or an
integral multiple thereof. The undersigned Holder directs that a certificate or
book-entry interest 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 Stripped Units Certificate representing
any Stripped Units evidenced hereby as to which Early Settlement of the related
Forward 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 Stripped Units evidenced hereby as to which Early Settlement of
the related Forward Purchase Contracts is being elected:
If shares of Common Stock are to be REGISTERED HOLDER
registered in the name of and
delivered to and Pledged Treasury Please print name and address of
Securities are to be transferred to Registered Holder:
a Person other than the Holder,
please print such Person's name
and address:
Name Name
Address Address
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:
Stated Amount of the
Amount of Decrease in Amount of Increase in Global Certificate
Stated Amount of the Stated Amount of the Following Such Signature of
Date Global Certificate Global Certificate Decrease or Increase Authorized Signatory
EXHIBIT C
INSTRUCTION FROM FORWARD PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Re: Equity Units of American Electric Power Company, Inc. (the "Company")
-------------------------------------------------------------------------
We hereby notify you in accordance with Section [4.1] [4.2] of the Pledge
Agreement, dated as of June 11, 2002, (the "Pledge Agreement") among the
Company, you, as Collateral Agent, Custodial Agent and Securities Intermediary
and us, as Forward Purchase Contract Agent and as attorney-in-fact for the
holders of [Equity Units] [Stripped Units] from time to time, that the Holder of
Equity Units and Stripped Units listed below (the "Holder") has elected to
substitute [$_____ aggregate principal amount of Treasury Securities (CUSIP No.
_____________)] [$_______ aggregate principal amount of Notes] in exchange for
the related [Pledged Notes] [Pledged Treasury Securities] held by you in
accordance with the Pledge Agreement and has delivered to us a notice stating
that the Holder has Transferred [Treasury Securities] [Notes] to you, as
Collateral Agent. We hereby instruct you, upon receipt of such [Pledged Treasury
Securities] [Pledged Notes], and upon the payment by such Holder of any
applicable fees, to release the [Notes] [Treasury Securities] related to such
[Equity Units] [Stripped Units] to us in accordance with the Holder's
instructions. Capitalized terms used herein but not defined shall have the
meaning set forth in the Pledge Agreement.
Date: _____________________
THE BANK OF NEW YORK,
as Forward Purchase Contract Agent
By: _________________________________
Name:
Title:
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Notes] for the [Pledged Notes] [Pledged Treasury
Securities]:
Name:
Social Security or other Taxpayer
Identification Number, if any:
Address:
EXHIBIT D
INSTRUCTION TO FORWARD PURCHASE CONTRACT AGENT
The Bank of New York,
as Forward Purchase Contract Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Telecopy:
Re: Equity Units of American Electric Power Company, Inc. (the "Company")
-------------------------------------------------------------------------
The undersigned Holder hereby notifies you that it has delivered to The
Bank of New York, as Collateral Agent, Custodial Agent and Securities
Intermediary [$_______ aggregate principal amount of Treasury Securities (CUSIP
No. ______________)] [$_______ aggregate principal amount of Notes] in exchange
for the related [Pledged Notes] [Pledged Treasury Securities] held by the
Collateral Agent, in accordance with Section [4.1] [4.2] of the Pledge
Agreement, dated June 11, 2002 (the "Pledge Agreement"), among you, the Company
and the Collateral Agent. The undersigned Holder has paid the Collateral Agent
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 Notes] [Pledged Treasury Securities] related
to such [Equity Units] [Stripped Units]. Capitalized terms used herein but not
defined shall have the meaning set forth in the Pledge Agreement.
Date: ___________________ Signature:_________________________________
Signature Guarantee:_______________________
Please print name and address of Registered Holder:
Name:
Social Security or other Taxpayer Identification Number, if any:
Address:
EXHIBIT E
NOTICE TO SETTLE BY CASH
The Bank of New York,
as Forward Purchase Contract Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Telecopy: (000) 000-0000
Re: Equity Units of American Electric Power Company, Inc. (the "Company")
-------------------------------------------------------------------------
The undersigned Holder hereby irrevocably notifies you in accordance with
Section 5.4 of the Forward Purchase Contract Agreement dated as of June 11, 2002
among the Company and yourselves, as Forward Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Forward Purchase Contracts, that such
Holder has elected to pay to the Collateral Agent, on or prior to 11:00 a.m. New
York City time, on the seventh Business Day immediately preceding the Stock
Purchase Date, (in lawful money of the United States by [certified or cashiers
check or] wire transfer, in each case in immediately available funds),
$_________ as the Purchase Price for the shares of Common Stock issuable to such
Holder by the Company under the related Forward Purchase Contract on the Stock
Purchase 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 Forward Purchase Contracts related to such
Holder's Equity Units.
Dated:_____________ __________________________________________
Signature
Signature Guarantee:_______________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Please print name and address of Registered Holder:
Social Security or other Taxpayer Identification Number, if any:
