EXHIBIT 4(X)
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FPL GROUP, INC.
AND
THE BANK OF NEW YORK,
as Purchase Contract Agent
and Trustee
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PURCHASE CONTRACT AGREEMENT
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DATED AS OF______ , _____
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TIE SHEET
Section of Section of
Trust Indenture Act Purchase Contract
of 1939, as amended Agreement
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310(a).....................................................7.8
310(b).....................................................7.9(d) and (g), 11.8
310(c).....................................................Inapplicable
311(a).....................................................11.2(b)
311(b).....................................................11.2(b)
311(c).....................................................Inapplicable
312(a).....................................................11.2(a)
312(b).....................................................11.2(b)
313........................................................11.3
314(a).....................................................11.4
314(b).....................................................Inapplicable
314(c).....................................................11.5
314(d).....................................................Inapplicable
314(e).....................................................1.2
314(f).....................................................11.1
315(a).....................................................7.1(a)
315(b).....................................................7.2
315(c).....................................................7.1(e)
315(d)(1)..................................................7.1(b)
315(d)(2)..................................................7.1(b)
315(d)(3)..................................................11.9
316(a)(1)(A)...............................................11.9
316(a)(1)(B)...............................................11.6
316(b).....................................................6.1
316(c).....................................................11.2
317(a).....................................................Inapplicable
317(b).....................................................Inapplicable
318(a).....................................................11.1(b)
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* This Cross-Reference Table does not constitute part of the Purchase
Contract Agreement and shall not affect the interpretation of any of its
terms or provisions.
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 1.1. Definitions....................................................1
SECTION 1.2. Compliance Certificates and Opinions..........................10
SECTION 1.3. Form of Documents Delivered to Agent..........................10
SECTION 1.4. Acts of Holders; Record Date..................................11
SECTION 1.5. Notices.......................................................12
SECTION 1.6. Notice to Holders; Waiver.....................................13
SECTION 1.7. Effect of Headings and Table of Contents......................13
SECTION 1.8. Successors and Assigns........................................13
SECTION 1.9. Separability Clause...........................................13
SECTION 1.10. Benefits of Agreement.........................................13
SECTION 1.11. Governing Law.................................................14
SECTION 1.12. Legal Holidays................................................14
SECTION 1.13. Counterparts..................................................14
SECTION 1.14. Inspection of Agreement.......................................14
ARTICLE II
Certificate Forms
SECTION 2.1. Forms of Certificates Generally...............................14
SECTION 2.2. Form of Agent's Certificate of Authentication.................15
ARTICLE III
The Securities
SECTION 3.1. Title and Terms; Denominations................................15
SECTION 3.2. Rights and Obligations Evidenced by the Certificates..........16
SECTION 3.3. Execution, Authentication, Delivery and Dating................16
SECTION 3.4. Temporary Certificates........................................17
SECTION 3.5. Registration; Registration of Transfer and Exchange...........17
SECTION 3.6. Book-Entry Interests..........................................19
SECTION 3.7. Notices to Holders............................................19
SECTION 3.8. Appointment of Successor Clearing Agency......................19
SECTION 3.9. Definitive Certificates.......................................20
SECTION 3.10. Mutilated, Destroyed, Lost and Stolen Certificates............20
SECTION 3.11. Persons Deemed Owners.........................................21
SECTION 3.12. Cancellation..................................................21
SECTION 3.13. Establishment or Reestablishment of Type B Securities.........22
SECTION 3.14. Establishment or Reestablishment of Type A Securities.........24
SECTION 3.15. Transfer of Collateral upon Occurrence of Termination Event...25
SECTION 3.16. No Consent to Assumption......................................25
ARTICLE IV
The Debentures
SECTION 4.1. Payment of Interest; Rights to Interest Preserved;
Interest Rate Reset; Notice...................................26
SECTION 4.2. Notice and Voting.............................................27
SECTION 4.3. Tax Event Redemption..........................................27
[SECTION 4.4. Consent to Treatment for Tax Purposes.........................28
ARTICLE V
The Purchase Contracts
SECTION 5.1. Purchase of Shares of Common Stock............................28
SECTION 5.2. Contract Adjustment Payments..................................29
SECTION 5.3. Deferral of Payment Dates For Contract Adjustment Payments....30
SECTION 5.4. Payment of Purchase Price.....................................31
SECTION 5.5. Issuance of Shares of Common Stock............................35
SECTION 5.6. Adjustment of Settlement Rate.................................35
SECTION 5.7. Notice of Adjustments and Certain Other Events................40
SECTION 5.8. Termination Event; Notice.....................................41
SECTION 5.9. Early Settlement..............................................41
SECTION 5.10. No Fractional Shares..........................................43
SECTION 5.11. Charges and Taxes.............................................43
ARTICLE VI
Remedies
SECTION 6.1. Unconditional Right of Holders to Receive Contract
Adjustment Payments and to Purchase Common Stock..............43
SECTION 6.2. Restoration of Rights and Remedies............................44
SECTION 6.3. Rights and Remedies Cumulative................................44
SECTION 6.4. Delay or Omission Not Waiver..................................44
SECTION 6.5. Undertaking for Costs.........................................44
SECTION 6.6. Waiver of Stay or Extension Laws..............................45
ARTICLE VII
The Agent
SECTION 7.1. Certain Duties and Responsibilities...........................45
ii
SECTION 7.2. Notice of Default.............................................46
SECTION 7.3. Certain Rights of Agent.......................................46
SECTION 7.4. Not Responsible for Recitals or Issuance of Securities........47
SECTION 7.5. May Hold Securities...........................................47
SECTION 7.6. Money Held in Custody.........................................47
SECTION 7.7. Compensation and Reimbursement................................47
SECTION 7.8. Corporate Agent Required; Eligibility.........................48
SECTION 7.9. Resignation and Removal; Appointment of Successor.............48
SECTION 7.10. Acceptance of Appointment by Successor........................50
SECTION 7.11. Merger, Conversion, Consolidation or Succession to Business...50
SECTION 7.12. Preservation of Information; Communications to Holders........50
SECTION 7.13. No Obligations of Agent.......................................51
SECTION 7.14. Tax Compliance................................................51
ARTICLE VIII
Supplemental Agreements
SECTION 8.1. Supplemental Agreements Without Consent of Holders............51
SECTION 8.2. Supplemental Agreements with Consent of Holders...............52
SECTION 8.3. Execution of Supplemental Agreements..........................53
SECTION 8.4. Effect of Supplemental Agreements.............................53
SECTION 8.5. Reference to Supplemental Agreements..........................53
ARTICLE IX
lidation, Merger, Sale or Conveyance
SECTION 9.1. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions......................53
SECTION 9.2. Rights and Duties of Successor Entity.........................54
SECTION 9.3. Opinion of Counsel Given to Agent.............................54
ARTICLE X
Covenants
SECTION 10.1. Performance Under Purchase Contracts..........................54
SECTION 10.2. Maintenance of Office or Agency...............................55
SECTION 10.3. Company to Reserve Common Stock...............................55
SECTION 10.4. Covenants as to Common Stock..................................55
ARTICLE XI
Trust Indenture Act
SECTION 11.1. Trust Indenture Act; Application..............................56
SECTION 11.2. Lists of Holders of Securities................................56
iii
SECTION 11.3. Reports by the Agent..........................................56
SECTION 11.4. Periodic Reports to Agent.....................................56
SECTION 11.5. Evidence of Compliance with Conditions Precedent..............56
SECTION 11.6. Defaults; Waiver..............................................57
SECTION 11.7. Agent's Knowledge of Defaults.................................57
SECTION 11.8. Conflicting Interests.........................................57
SECTION 11.9. Direction of Agent............................................57
EXHIBIT A Form of Type A Certificate
EXHIBIT B Form of Type B Certificate
EXHIBIT E Notice to Settle by Separate Cash
iv
PURCHASE CONTRACT AGREEMENT, dated as of ______, _____, between FPL
Group, Inc., a Florida corporation (the "Company"), and The Bank of New York,
acting as purchase contract agent, attorney-in-fact and trustee for the Holders
of Securities from time to time (in any one or more of such capacities, the
"Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Securities.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company and authenticated, executed on behalf
of the Holders and delivered by the Agent, as provided in this Agreement, the
valid obligations of the Company and the Holders, and to constitute these
presents a valid agreement of the Company, in accordance with its terms, have
been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and nouns
and pronouns of the masculine gender include the feminine and neuter genders;
(b) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States;
(c) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section 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 of
the Securities Act of 1933, as amended, 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.
"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.
"APPLICABLE OWNERSHIP INTEREST" means __________________________.
"APPLICABLE PRINCIPAL AMOUNT" means __________________________.
"AUTHORIZED NEWSPAPER" means a newspaper in the English language of
general circulation in The City of New York and generally published each
Business Day. As of the date of this Agreement, the Company anticipates that for
purposes of each Reset Announcement Date, the Authorized Newspaper will be the
Wall Street Journal.
"AUTHORIZED OFFICER" means the Chairman of the Board, the President,
any Vice President, the Treasurer, any Assistant Treasurer, or any other officer
or agent of the Company duly authorized by the Board of Directors to act in
respect of matters relating to this Agreement.
"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 the board of directors of the Company or a
duly authorized committee of that board.
"BOARD RESOLUTION" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification and delivered
to the Agent.
"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.
2
"BUSINESS DAY" means any day other than a Saturday, Sunday or any other
day on which banking institutions in Xxx Xxxx Xxxx (xx xxx Xxxxx xx Xxx Xxxx)
are permitted or required by any applicable law to close.
"CASH SETTLEMENT" has the meaning set forth in Section 5.4(a)(i).
"CERTIFICATE" means a Type A Certificate or a Type B Certificate.
"CLEARING AGENCY" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Securities and in whose name, or in the name of a nominee of
that organization, shall be registered as a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Securities.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"CLOSING PRICE" has the meaning specified in Section 5.1.
"COLLATERAL" has the meaning specified in Section 2.1 of the Pledge
Agreement.
"COLLATERAL AGENT" means _____________, as Collateral Agent under the
Pledge Agreement until a successor Collateral Agent shall have become such
pursuant to the applicable provisions of the Pledge Agreement, and thereafter
"Collateral Agent" shall mean the Person who is then the Collateral Agent
thereunder.
"COLLATERAL SUBSTITUTION" has the meaning specified in Section 3.13.
"COMMON STOCK" means the Common Stock, par value $0.01 per share, of
the Company, including, where applicable, the preferred share purchase rights
appurtenant thereto.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such pursuant
to the applicable provision of this Agreement, and thereafter "Company" shall
mean such successor.
"COMPANY CERTIFICATE" means a certificate signed by an Authorized
Officer and delivered to the Agent.
"CONTRACT ADJUSTMENT PAYMENTS" means the amounts payable by the Company
in respect of each Purchase Contract issued in connection with the Type A
Securities and Type B Securities, which amounts shall be equal to ___, computed
on the basis of a 360-day year of twelve 30-day months, plus any Deferred
Contract Adjustment Payments accrued pursuant to Section 5.3.
"CORPORATE TRUST OFFICE" means the corporate trust 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 000
Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000.
"COUPON RATE" with respect to a Debenture means the percentage rate per
annum at which such Debenture will bear interest.
"CURRENT MARKET PRICE" has the meaning specified in Section 5.6(a)(8).
3
"DEBENTURES" means the series of debt securities of FPL Group Capital
designated the ___ Debentures, Series due _______ , to be issued under the
Indenture as of the date hereof.
"DEFAULT" means a default by the Company in any of its obligations
under this Agreement.
"DEFERRED CONTRACT ADJUSTMENT PAYMENTS" has the meaning specified in
Section 5.3.
"DEPOSITARY" means, initially, DTC until another Clearing Agency
becomes its 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).
"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.
"EXPIRATION TIME" has the meaning specified in Section 5.6(a)(6).
"FAILED REMARKETING" means a remarketing that does not occur because a
condition precedent to such remarketing is not fulfilled, or if in spite of
using its reasonable efforts, the Remarketing Agent cannot remarket the
Debentures of Holders of Type A Securities at a price not less than [___%] of
the applicable Treasury Portfolio Purchase Price, in the case of the
remarketings of Debentures on the third Business Day immediately preceding
___________________________, or ___% of the aggregate principal amount of such
Debentures, in the case of the remarketings of Debentures on the third Business
Day immediately preceding ___________________________, in each case, plus
accrued and unpaid interest.
"FPL GROUP CAPITAL" means FPL Group Capital Inc, a Florida corporation
and wholly-owned subsidiary of the Company, or any successor under the
Indenture.
"GLOBAL CERTIFICATE" means a Certificate that evidences all or part of
the Securities and is registered in the name of a Depositary or a nominee
thereof.
"HOLDER," when used with respect to a Security, means the Person in
whose name a Type A Certificate and/or a Type B Certificate evidencing the
Security is registered on the related Type A Register and/or the Type B
Register, as the case may be.
4
"INDENTURE" means the Indenture (For Unsecured Debt Securities), dated
as of June 1, 1999, between FPL Group Capital and the Indenture Trustee pursuant
to which the Debentures are to be issued, as originally executed and delivered
and as it may from time to time be supplemented or amended by one or more
indentures supplemental thereto entered into pursuant to the applicable
provisions thereof and shall include the terms of a particular series of
securities established as contemplated by Section 301 thereof.
"INDENTURE TRUSTEE" means The Bank of New York, as trustee under the
Indenture, or any successor thereto.
"ISSUER ORDER" or "ISSUER REQUEST" means a written order or request
signed in the name of the Company by an Authorized Officer and delivered to the
Agent.
"NYSE" has the meaning specified in Section 5.1.
"OFFICER'S CERTIFICATE" means a certificate signed by an authorized
signatory of FPL Group Capital establishing the terms of the debt securities of
any series pursuant to the Indenture.
"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 and
who shall be reasonably acceptable to the Agent.
"OUTSTANDING," with respect to any Type A Securities and Type B
Securities means, as of the date of determination, all Type A Securities or Type
B Securities evidenced by Certificates theretofore authenticated, executed and
delivered under this Agreement, except:
(i) If a Termination Event has occurred, (A) Type B Securities
for which Treasury Securities have been deposited with the Agent in
trust for the Holders of such Type B Securities and (B) Type A
Securities for which the principal amount of the related Debenture or
the Stated Amount of the appropriate Applicable Ownership Interest in
the Treasury Portfolio has been theretofore deposited with the Agent
in trust for the Holders of such Type A Securities;
(ii) Type A Securities and Type B Securities 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) Type A Securities and Type B Securities 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 Type A Securities or Type B Securities
evidenced by such Certificate are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite number of the Type A Securities or Type B Securities have
given any request, demand,
5
authorization, direction, notice, consent or waiver hereunder, Type A
Securities or Type B Securities owned by the Company or any Affiliate
of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Agent shall be protected in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Type A Securities or Type B Securities
which a Responsible Officer of the Agent knows to be so owned shall be
so disregarded. Type A Securities or Type B Securities so owned which
have been pledged in good faith may be regarded as Outstanding
Securities if the pledgee establishes to the satisfaction of the Agent
the pledgee's right so to act with respect to such Type A Securities
or Type B Securities and that the pledgee is not the Company or any
Affiliate of the Company.
"PAYMENT DATE" means each ____________, ___________, __________ and
__________, commencing ____________, _______.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated association or government or any agency
or political subdivision thereof or any other entity of whatever nature.
"PERMITTED INVESTMENTS" has the meaning set forth in Article I of the
Pledge Agreement.
"PLEDGE" means the pledge under the Pledge Agreement of the Debentures,
the Treasury Securities or the appropriate Applicable Ownership Interest in the
Treasury Portfolio, in each case constituting a part of the Securities.
"PLEDGE AGREEMENT" means the Pledge Agreement, dated as of the date
hereof, by and among the Company, ___________, as purchase contract agent and as
attorney-in-fact for the Holders from time to time of Securities, and
________________, as the collateral agent, the custodial agent and the
securities intermediary.
"PLEDGED APPLICABLE OWNERSHIP INTEREST IN THE TREASURY PORTFOLIO" has
the meaning specified in Section 2.1 of the Pledge Agreement.
"PLEDGED DEBENTURES" has the meaning specified in Section 2.1 of the
Pledge Agreement.
"PLEDGED TREASURY SECURITIES" has the meaning specified in Section 2.1
of the Pledge Agreement.
"PREDECESSOR CERTIFICATE" means a Predecessor Type A Certificate or a
Predecessor Type B Certificate.
"PREDECESSOR TYPE A CERTIFICATE" of any particular Type A Certificate
means every previous Type A Certificate evidencing all or a portion of the
rights and obligations of the Company and the Holder under the Type A Security
evidenced thereby; and, for the purposes of this definition, any Type A
Certificate authenticated and delivered under Section 3.10 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Type A Certificate shall be
6
deemed to evidence the same rights and obligations of the Company and the Holder
as the mutilated, destroyed, lost or stolen Type A Certificate.
"PREDECESSOR TYPE B CERTIFICATE" of any particular Type B Certificate
means every previous Type B Certificate evidencing all or a portion of the
rights and obligations of the Company and the Holder under the Type B Securities
evidenced thereby; and, for the purposes of this definition, any Type B
Certificate authenticated and delivered under Section 3.10 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Type B Certificate shall be
deemed to evidence the same rights and obligations of the Company and the Holder
as the mutilated, destroyed, lost or stolen Type B Certificate.
"PROCEEDS" has the meaning set forth in Article I of the Pledge
Agreement.
"PURCHASE CONTRACT," when used with respect to any Security, means the
contract forming a part of such Security and obligating the Company to (i) sell
and the Holder of such Security to purchase Common Stock and (ii) pay the Holder
Contract Adjustment Payments, if any, on the terms and subject to the conditions
set forth in Article V hereof.
"PURCHASE CONTRACT AGENT" means The Bank of New York.
"PURCHASE CONTRACT SETTLEMENT DATE" means ___________________________.
"PURCHASE CONTRACT SETTLEMENT FUND" has the meaning specified in
Section 5.5.
"PURCHASE PRICE" has the meaning specified in Section 5.1.
"PURCHASED SHARES" has the meaning specified in Section 5.6(a)(6).
"RECORD DATE" for the payment of interest, distribution and Contract
Adjustment Payments payable on any Payment Date means, as to any Global
Certificate, the Business Day next preceding such Payment Date, and as to any
other Certificate, a day selected by the Company which shall be at least one
Business Day but less than 60 Business Days prior to such Payment Date (and
which shall correspond to the related record date for the Debentures).
"REDEMPTION AMOUNT" means ____________________________.
"REDEMPTION PRICE" means an amount per Debenture equal to the
Redemption Amount plus accrued and unpaid interest, if any, to the date of
redemption.
"REGISTER" means the Type A Register and the Type B Register.
"REGISTRAR" means the Type A Registrar and the Type B Registrar.
"REMARKETING AGENT" has the meaning specified in Section 5.4(b).
"REMARKETING AGREEMENT" means a Remarketing Agreement dated _____,
_____ by and between the Company, FPL Group Capital, _____________, as the
remarketing agent and
7
______________, as the purchase contract agent, including any amendments and
supplements thereto.
"REMARKETING FEE" means ___________________________.
"REORGANIZATION EVENT" has the meaning specified in Section 5.6(b).
"RESET ANNOUNCEMENT DATE" means _____________________________.
"RESET RATE" means _______________________.
"RESET SPREAD" means ____________.
"RESPONSIBLE OFFICER," when used with respect to the Agent, means any
officer of the Agent assigned by the Agent to administer its corporate trust
matters.
"SECURITY" means a Type A Security or a Type B Security.
"SENIOR INDEBTEDNESS" means indebtedness of any kind of the Company
(including the Debentures) unless the instrument under which such indebtedness
is incurred expressly provides that it is in parity or subordinate in right of
payment to the Contract Adjustment Payments.
"SETTLEMENT RATE" has the meaning specified in Section 5.1.
"STATED AMOUNT" means $___.
"TAX EVENT" means ________________________.
"TAX EVENT REDEMPTION" means, if a Tax Event shall occur and be
continuing, the redemption of Debentures, in whole but not in part, at the
option of the Company on not less than 30 days or more than 60 days notice.
"TAX EVENT REDEMPTION DATE" means the date on 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: (i) at any time on or prior to the Purchase Contract Settlement Date, a
judgment, decree or court order shall have been entered granting relief under
the Bankruptcy Code, adjudicating the Company to be insolvent, or approving as
properly filed a petition seeking reorganization or liquidation of the Company
or any other similar applicable Federal or State law, and, unless such judgment,
decree or order shall have been entered within 60 days prior to the Purchase
Contract Settlement Date, such decree or order shall have continued undischarged
and unstayed for a period of 60 days; or (ii) at any time on or prior to the
Purchase Contract Settlement Date, a judgment, decree or court order for the
appointment of a receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company or of its property, or for the winding up or
liquidation of its affairs, shall have been entered, and, unless such judgment,
decree or order shall have been entered
8
within 60 days prior to the Purchase Contract Settlement Date, such judgment,
decree or order shall have continued undischarged and unstayed for a period of
60 days; or (iii) at any time on or prior to the Purchase Contract Settlement
Date the Company shall file a petition for relief under the Bankruptcy Code, or
shall consent to the filing of a bankruptcy proceeding against it, or shall file
a petition or answer or consent seeking reorganization or liquidation under the
Bankruptcy Code or any other similar applicable Federal or State law, or shall
consent to the filing of any such petition, or shall consent to the appointment
of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of it or of its property, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts generally as
they become due.
"THRESHOLD APPRECIATION PRICE" has the meaning specified in Section
5.1.
"TIA" means, as of any time, the Trust Indenture Act of 1939, as
amended, or any successor statute, as in effect at such time.
"TRADING DAY" has the meaning specified in Section 5.1.
"TREASURY PORTFOLIO" means _________________________________.
"TREASURY PORTFOLIO PURCHASE PRICE" means _________________________.
"TREASURY SECURITY" means ______________________________.
"TYPE A CERTIFICATE" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Type A Securities specified
on such certificate.
"TYPE A REGISTER" and "TYPE A REGISTRAR" have the respective meanings
specified in Section 3.5.
"TYPE A SECURITY" means the collective rights and obligations of a
Holder of a Type A Certificate in respect of a Debenture or an appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case may be,
subject in each case to the Pledge thereof, and the related Purchase Contract.
"TYPE B CERTIFICATE" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Type B Security specified on
such certificate.
"TYPE B REGISTER" and "TYPE B REGISTRAR" have the respective meanings
specified in Section 3.5.
"TYPE B SECURITY" means the collective rights and obligations of a
Holder of a Type B Certificate in respect of a Treasury Security, subject to the
Pledge thereof, and the related Purchase Contract.
"TWO-YEAR BENCHMARK TREASURY" means ______________________________.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement dated
_______, _____ among the Company, FPL Group Capital, ___________ and,
_______________.
9
"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 a Company
Certificate stating that all conditions precedent, if any, provided for in this
Agreement relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Agreement relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO AGENT.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession
10
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 DATE.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Agent and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 7.1) conclusive in favor of the Agent and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Agent deems
sufficient.
(c) The ownership of Securities shall be proved by the Type A Register
or the Type B 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.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Securities. If any record date is set pursuant to this paragraph, the
Holders of the Outstanding Type A Securities and the Outstanding Type B
Securities, as the case may be, on such record date, and no other Holders, shall
be entitled to take the relevant action with respect to the Type A Securities or
the Type B Securities as the case may be, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite number of Outstanding Securities on such record date. Nothing
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
11
render ineffective any action taken by Holders of the requisite number of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Agent in writing and to each
Holder of Securities in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day; provided that no
such change shall be effective unless notice of the proposed new Expiration Date
is given to the Agent in writing, and to each Holder of Securities in the manner
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,
(1) the Agent by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and personally
delivered or mailed, first-class postage prepaid, to the Agent at The
Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx
00000, Attention: Vice President, Corporate Trust Administration, or
at any other address previously furnished in writing by the Agent to
the Holders and the Company;
(2) the Company by the Agent or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and personally
delivered or mailed, first-class postage prepaid, to the Company at
FPL Group, Inc., 000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000,
Attention: _____________, or at any other address previously furnished
in writing to the Agent by the Company;
(3) 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 or mailed, first-class postage
prepaid, addressed to the Collateral Agent at ______________________,
or at any other address previously furnished in writing by the
Collateral Agent to the Agent, the Company and the Holders; or
(4) the Indenture 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
or mailed, first-class postage prepaid, addressed to the Indenture
Trustee at The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx
00
Xxxx, Xxx Xxxx 00000, Attention: Vice President, Corporate Trust
Administration, or at any other address previously furnished in
writing by the Indenture Trustee to the Company.
SECTION 1.6 NOTICE TO HOLDERS; WAIVER.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at its address as it appears in the applicable Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Agent, but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Agent shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.8 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.9 SEPARABILITY CLAUSE.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
SECTION 1.10 BENEFITS OF AGREEMENT.
Nothing in this Agreement or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and, to the extent provided hereby, the Holders, any benefits or any
legal or equitable right, remedy or claim under this Agreement. The Holders from
time to time shall be beneficiaries of this Agreement and shall be bound by all
of the terms and conditions hereof and of the Securities evidenced by their
Certificates by their acceptance of delivery of such Certificates.
13
SECTION 1.11 GOVERNING LAW.
THIS AGREEMENT AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES THEREUNDER, EXCEPT TO THE EXTENT THAT THE LAWS OF ANY OTHER
JURISDICTION SHALL BE MANDATORILY APPLICABLE.
SECTION 1.12 LEGAL HOLIDAYS.
In any case where any Payment Date shall not be a Business Day, then
(notwithstanding any other provision of this Agreement or the Type A
Certificates or the Type B Certificates) payment of the Contract Adjustment
Payments, if any, shall not be made on such date, but such payments shall be
made on the next succeeding Business Day with the same force and effect as if
made on such Payment Date, and no interest shall accrue or be payable by the
Company or any Holder for the period from and after any such Payment Date,
except that, if such next succeeding Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day with the same force and effect as if made on such Payment Date.
In any case where any Purchase Contract Settlement Date shall not be a
Business Day, then (notwithstanding any other provision of this Agreement, the
Type A Certificates or the Type B Certificates), the Purchase Contracts shall
not be performed on such date, but the Purchase Contracts shall be performed on
the immediately following Business Day with the same force and effect as if
performed on the Purchase Contract Settlement Date.
SECTION 1.13 COUNTERPARTS.
This Agreement may be executed in any number of counterparts by the
parties hereto on separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
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.
The Type A Certificates (including the form of Purchase Contract
forming part of the Type A Securities evidenced thereby) shall be in
substantially the form set forth in Exhibit A hereto, with such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Type A Securities are listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Type A Certificates, as evidenced by their execution of
the Type A Certificates.
14
The definitive Type A Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing the Type A Securities
evidenced by such Type A Certificates, consistent with the provisions of this
Agreement, as evidenced by their execution thereof.
The Type B Certificates (including the form of Purchase Contracts
forming part of the Type B Securities evidenced thereby) shall be in
substantially the form set forth in Exhibit B hereto, with such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Type B Securities may be listed or any
depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Type B Certificates, as evidenced by
their execution of the Type B Certificates.
The definitive Type B Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing the Type B Securities
evidenced by such Type B Certificates, consistent with the provisions of this
Agreement, as evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend in substantially the
following form:
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT (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 PURCHASE CONTRACT AGREEMENT.
SECTION 2.2 FORM OF AGENT'S CERTIFICATE OF AUTHENTICATION.
The form of the Agent's certificate of authentication of the Type A
Securities shall be in substantially the form set forth on the form of the Type
A Certificates set forth as Exhibit A hereto.
The form of the Agent's certificate of authentication of the Type B
Securities shall be in substantially the form set forth on the form of the Type
B Certificates set forth as Exhibit B hereto.
ARTICLE III
THE SECURITIES
SECTION 3.1 TITLE AND TERMS; DENOMINATIONS.
The aggregate number of Type A Securities and Type B Securities
evidenced by Certificates authenticated, executed on behalf of the Holders and
delivered hereunder is limited to _______________ except for Certificates
authenticated, executed and delivered upon
15
registration of transfer of, in exchange for, or in lieu of, other Certificates
pursuant to Section 3.4, 3.5, 3.10, 3.12, 3.13, 5.9 or 8.5.
The Certificates shall be issuable only in registered form and only in
denominations of a single Type A Security or Type B Security and any integral
multiple thereof.
SECTION 3.2 RIGHTS AND OBLIGATIONS EVIDENCED BY THE CERTIFICATES.
Each Type A Certificate shall evidence the number of Type A Securities
specified therein, with each such Type A Security representing the ownership by
the Holder thereof of a beneficial interest in the Debentures and/or the
Applicable Ownership Interest in the Treasury Portfolio, as the case may be,
subject to the Pledge of such Debenture and/or the 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 Purchase Contract. The Agent as attorney-in-fact for, and on
behalf of, the Holder of each Type A Security shall pledge, pursuant to the
Pledge Agreement, each Debenture and/or the Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, forming a part of such Type A Security,
to the Collateral Agent and grant to the Collateral Agent a security interest in
the right, title, and interest of such Holder in such Debenture and/or the
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 one
Purchase Contract to purchase the Common Stock of the Company.
Each Type B Certificate shall evidence the number of Type B Securities
specified therein, with each such Type B Security representing the ownership by
the Holder thereof of a [1/20] undivided beneficial interest in a Treasury
Security with a principal amount equal to [$1,000] subject to the Pledge of such
Treasury Security by such Holder pursuant to the Pledge Agreement, and the
rights and obligations of the Holder thereof and the Company under one Purchase
Contract. The Agent as attorney-in-fact for, and on behalf of, the Holder of
each Type B Security shall pledge, pursuant to the Pledge Agreement, each
Treasury Security forming a part of such Type B Security, 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 one Purchase Contract to
purchase the Common Stock of the Company.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Subject to the provisions of Sections 3.13 and 3.14 hereof, upon the
execution and delivery of this Agreement, and at any time and from time to time
thereafter, the Company may deliver Certificates executed by the Company to the
Agent for authentication, execution on behalf of the Holders and delivery,
together with its Issuer Order for authentication of such Certificates, and the
Agent in accordance with such Issuer Order shall authenticate, execute on behalf
of the Holders and deliver such Certificates.
The Certificates shall be executed on behalf of the Company by its
Chairman of the Board, its President, one of its Vice Presidents, its Treasurer,
one of its Assistant Treasurers, its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Certificates may be
manual or facsimile.
16
Certificates bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid until
such Certificate has been executed on behalf of the Holder by the manual
signature of an authorized signatory of the Agent, as such Holder's
attorney-in-fact. Such signature by an authorized signatory of the Agent shall
be conclusive evidence that the Holder of such Certificate has entered into the
Purchase Contracts evidenced by such Certificate.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this Agreement or
be valid or obligatory for any purpose unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein
executed by an authorized signatory of the Agent by manual signature, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder.
SECTION 3.4 TEMPORARY CERTIFICATES.
Pending the preparation of definitive Certificates, the Company shall
execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holders, and deliver, in lieu of such definitive Certificates,
temporary Certificates which are in substantially the forms set forth in Exhibit
A and Exhibit B hereto, with such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Type A Securities or Type B Securities are
listed, or as may, consistently herewith, be determined by the officers of the
Company executing such Certificates, as evidenced by their execution of the
Certificates.
If temporary Certificates are issued, the Company will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation of
definitive Certificates, the temporary Certificates shall be exchangeable for
definitive Certificates upon surrender of the temporary Certificates at the
Corporate Trust Office, at the expense of the Company and without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Company shall execute and deliver to the Agent, and the Agent
shall authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, one or more definitive Certificates of like tenor and denominations
and evidencing a like number of Type A Securities or Type B Securities, 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 Type A Securities or Type
B Securities, as the case may be, evidenced thereby as definitive Certificates.
SECTION 3.5 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
The Agent shall keep at the Corporate Trust Office a register (the
"Type A Register") in which, subject to such reasonable regulations as it may
prescribe, the Agent shall provide for the
17
registration of Type A Certificates and of transfers of Type A Certificates (the
Agent, in such capacity, the "Type A Registrar") and a register (the "Type B
Register") in which, subject to such reasonable regulations as it may prescribe,
the Agent shall provide for the registration of the Type B Certificates and
transfers of Type B Certificates (the Agent, in such capacity, the "Type B
Registrar").
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Company shall execute and deliver to the Agent, and
the Agent shall authenticate, execute on behalf of the designated transferee or
transferees, and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of any authorized denominations, like
tenor, and evidencing a like number of Type A Securities or Type B Securities,
as the case may be.
At the option of the Holder, Certificates may be exchanged for other
Certificates, of any authorized denominations and evidencing a like number of
Type A Securities or Type B Securities, as the case may be, upon surrender of
the Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf of the
Holder, and deliver the Certificates which the Holder making the exchange is
entitled to receive.
All Certificates issued upon any registration of transfer or exchange
of a Certificate shall evidence the ownership of the same number of Type A
Securities or Type B Securities, as the case may be, and be entitled to the same
benefits and subject to the same obligations, under this Agreement as the Type A
Securities or Type B Securities, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or 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.
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 3.6 and
8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder and deliver any Certificate
presented or surrendered for registration of transfer or for exchange during the
period commencing on the Business Day immediately preceding the Purchase
Contract Settlement Date and ending on the Purchase Contract Settlement Date or
on or after the Termination Date. [In lieu of delivery of a new Certificate,
upon satisfaction of the applicable conditions specified above in this Section
and receipt of appropriate registration or transfer instructions from such
Holder, the Agent shall (i) if the Purchase Contract Settlement Date has
occurred, deliver the shares of Common Stock issuable in respect of the Purchase
18
Contracts forming a part of the Securities evidenced by such Certificate, (ii)
in the case of Type A Securities, if a Termination Event shall have occurred
prior to the Purchase Contract Settlement Date, transfer the aggregate principal
amount of the Debentures or the aggregate Stated Amount of the Treasury
Portfolio, as applicable, evidenced thereby, or (iii) in the case of Type B
Securities, if a Termination Event shall have occurred prior to the Purchase
Contract Settlement Date, transfer the Treasury Securities evidenced thereby, in
each case subject to the applicable conditions and in accordance with the
applicable provisions of Article V hereof.]
SECTION 3.6 BOOK-ENTRY INTERESTS.
The Certificates, on original issuance, will be issued in the form of
one or more fully registered Global Certificates, to be delivered to the
Depositary by, or on behalf of, the Company. Such Global Certificates shall
initially be registered on the books and records of the Company in the name of
Cede & Co., the nominee of the Depositary, and no Beneficial Owner will receive
a definitive Certificate representing such Beneficial Owner's interest in such
Global Certificate, except as provided in Section 3.9. The Agent shall enter
into an agreement with the Depositary if so requested by the Company. Unless and
until definitive, fully registered Certificates have been issued to Beneficial
Owners pursuant to Section 3.9:
(a) the provisions of this Section 3.6 shall be in full force and
effect;
(b) the Company shall be entitled to deal with the Clearing Agency for
all purposes of this Agreement (including the payment of Contract Adjustment
Payments, if any, and receiving approvals, votes or consents hereunder) as the
Holder of the Securities 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 and receive and transmit payments of Contract
Adjustment Payments to such 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
Certificates 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
depositary with respect to the Securities, the Company may, in its sole
discretion, appoint a successor Clearing Agency with respect to the Securities.
19
SECTION 3.9 DEFINITIVE CERTIFICATES.
If (i) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities and a successor Clearing
Agency is not appointed within 90 days after such discontinuance pursuant to
Section 3.8, or (ii) the Company elects to terminate the book-entry system
through the Clearing Agency with respect to the Securities, then upon surrender
of the Global Certificates representing the Book-Entry Interests with respect to
the Securities by the Clearing Agency, accompanied by registration instructions,
the Company shall cause definitive Certificates to be delivered to Beneficial
Owners in accordance with the instructions of the Clearing Agency. The Company
shall not be liable for any delay in delivery of such instructions and may
conclusively rely on and shall be protected in relying on, such instructions.
SECTION 3.10 MUTILATED, DESTROYED, LOST AND STOLEN CERTIFICATES.
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 Type A
Securities or Type B Securities, as the case may be, and bearing a Certificate
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i) evidence
to their satisfaction of the destruction, loss or theft of any 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 either 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 Type A Securities
or Type B Securities, as the case may be, and bearing a Certificate number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder, and deliver to the Holder, a
Certificate during the period commencing on the Business Day immediately
preceding a Purchase Contract Settlement Date and ending on such Purchase
Contract Settlement Date or on or after the Termination Date. In addition, 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 may (i) if the
Purchase Contract Settlement Date has occurred, deliver the shares of Common
Stock issuable in respect of the applicable portion of the Purchase Contracts
forming a part of the Securities evidenced by such Certificate, or (ii) if a
Termination Event shall have occurred, transfer the Debentures, the appropriate
Applicable Ownership Interest in the Treasury Portfolio or the Treasury
Securities, as the case may be, forming a part of the Securities represented by
such Certificate to such Holder, in each case subject to the applicable
conditions and in accordance with the applicable provisions of Article V hereof.
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
20
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Certificate shall constitute an original additional
contractual obligation of the Company and of the Holder in respect of the
Security evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Securities evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of this Agreement equally and proportionately with any
and all other Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 3.11 PERSONS DEEMED OWNERS.
Prior to due presentment of a Certificate for registration of transfer,
the Company and the Agent, and any agent of the Company or the Agent, may treat
the Person in whose name such Certificate is registered on the Type A Securities
Register or the Type B Securities Register, as applicable, as the owner of the
Type A Securities or Type B Securities evidenced thereby, for the purpose of
receiving interest on the Debentures or distributions on the maturing quarterly
interest strips of the Treasury Portfolio, as applicable, receiving payments of
Contract Adjustment Payments, performance of the Purchase Contracts and for all
other purposes whatsoever, whether or not any interest on the Debentures or the
Contract Adjustment Payments payable in respect of the Purchase Contracts
constituting a part of the Type A Securities or Type B Securities evidenced
thereby shall be overdue and notwithstanding any notice to the contrary, and
neither the Company nor the Agent, nor any agent of the Company or the Agent,
shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Certificate,
nothing herein shall prevent the Company, the Agent or any agent of the Company
or the Agent, from treating the Clearing Agency as the sole Holder of such
Global Certificate or from giving effect to any written certification, proxy or
other authorization furnished by any Clearing Agency (or its nominee), as a
Holder, with respect to such Global Certificate or impair, as between such
Clearing Agency and owners of beneficial interests in such Global Certificate,
the operation of customary practices governing the exercise of rights of such
Clearing Agency (or its nominee) as Holder of such Global Certificate.
SECTION 3.12 CANCELLATION.
All Certificates surrendered for delivery of shares of Common Stock on
or after the Purchase Contract Settlement Date, upon the transfer of Debentures,
the appropriate Applicable Ownership Interest in the Treasury Portfolio or
Treasury Securities, as the case may be, after the occurrence of a Termination
Event or pursuant to an Early Settlement, or upon the registration of a transfer
or exchange of a Certificate, or a Collateral Substitution or the
reestablishment of a Type A Security 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
21
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
upon written request be returned to the Company.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Agent
cancelled or for cancellation.
SECTION 3.13 ESTABLISHMENT OR REESTABLISHMENT OF TYPE B SECURITIES.
A Holder may separate the Debentures or the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as applicable, from the related
Purchase Contracts in respect of a Type A Security by substituting for such
Debentures or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, Treasury Securities in an aggregate principal
amount equal to the aggregate principal amount of such Debentures or for the
aggregate Stated Amount of the appropriate Applicable Ownership Interest (as
specified in clause __ of the definition of such term) of the Treasury
Portfolio, as applicable (a "Collateral Substitution"), at any time from and
after the date of this Agreement and on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date in the case of the
Debentures and on or prior to the second Business Day immediately preceding the
Purchase Contract Settlement Date in the case of the appropriate Applicable
Ownership Interest in the Treasury Portfolio, in each case by (a) depositing
with the Collateral Agent Treasury Securities having an aggregate principal
amount equal to the aggregate principal amount of the Debentures comprising part
of such Type A Securities or for the aggregate Stated Amount of the appropriate
Applicable Ownership Interest (as specified in clause __ of the definition of
such term) of the Treasury Portfolio comprising part of such Type A Securities,
as the case may be, and (b) (i) by delivering cash in an amount equal to the
excess of the Contract Adjustment Payments that would have accrued since the
last Payment Date through the date of substitution on the Type B Securities
being created by the holder, over the Contract Adjustment Payments that have
accrued over the same time period on the related Type A Securities, which amount
the Agent shall promptly remit to the Company, and (ii) transferring the related
Type A Securities to the Agent accompanied by a notice to the Agent,
substantially in the form of Exhibit B to the Pledge Agreement 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 Debentures or the appropriate Applicable Ownership Interest in
the Treasury Portfolio, as the case may be, underlying such Type A Securities,
whereupon the Agent shall promptly give such instruction to the Collateral
Agent, substantially in the form of Exhibit A to the Pledge Agreement hereto.
Upon receipt of the Treasury Securities described in clause (a) above and the
instructions described in clause (b) above, in accordance with the terms of the
Pledge Agreement, the Collateral Agent will release to the Agent, on behalf of
the Holder, Debentures or the appropriate Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, having a corresponding aggregate
principal amount of such Debentures or aggregate Stated Amount of the
appropriate Applicable Ownership Interest (as specified in clause __ of the
definition of such term) of the Treasury Portfolio, as the case may be, from the
Pledge, free and
22
clear of the Company's security interest therein, and upon receipt thereof the
Agent shall promptly:
(i) cancel the related Type A Securities surrendered and
transferred;
(ii) transfer the Debentures or the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, that
had been components of such Type A Security to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a Type B Certificate executed by the Company in accordance with
Section 3.3 evidencing the same number of Purchase Contracts as were
evidenced by the cancelled Type A Securities.
Holders who elect to separate the Debentures or the appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case may be,
from the related Purchase Contract and to substitute Treasury Securities for
such Debentures or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, shall be responsible for any fees or expenses
payable to the Collateral Agent for its services as Collateral Agent in respect
of the substitution, and the Company shall not be responsible for any such fees
or expenses.
Holders may make Collateral Substitutions (i) only in integral
multiples of [20] Type A Securities if Debentures are being substituted by
Treasury Securities, or (ii) only in integral multiples of [20] Type A
Securities if the appropriate Applicable Ownership Interests of the Treasury
Portfolio are being substituted by Treasury Securities.
In the event a Holder making a Collateral Substitution pursuant to this
Section 3.13 fails to effect a book-entry transfer of the Type A Securities or
fails to deliver a Type A Certificate(s) to the Agent after depositing Treasury
Securities with the Collateral Agent, the Debentures or the appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case may be,
constituting a part of such Type A Security, and any interest on such Debentures
or distributions with respect to the Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, shall be held in the name of the Agent
or its nominee in trust for the benefit of such Holder, until such Type A
Security is so transferred or the Type A Certificate is so delivered, as the
case may be, or, with respect to a Type A Certificate, such Holder provides
evidence satisfactory to the Company and the Agent that such Type A Certificate
has been destroyed, lost or stolen, together with any indemnity that may be
required by the Agent and the Company.
Except as described in this Section 3.13, for so long as the Purchase
Contract underlying a Type A Security remains in effect, such Type A Security
shall not be separable into its constituent parts, and the rights and
obligations of the Holder in respect of the Debentures or the appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case may be, and
Purchase Contract comprising such Type A Security may be acquired, and may be
transferred and exchanged, only as a Type A Security.
23
SECTION 3.14 ESTABLISHMENT OR REESTABLISHMENT OF TYPE A SECURITIES.
A Holder of a Type B Security may create or recreate Type A Securities
at any time (i) on or prior to the fifth Business Day immediately preceding the
Purchase Contract Settlement Date, if a Tax Event Redemption has not occurred,
and (ii) on or prior to the second Business Day immediately preceding the
Purchase Contract Settlement Date, if a Tax Event Redemption has occurred, in
each case by (a) depositing with the Collateral Agent Debentures or the
appropriate Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, having an aggregate principal amount in the case of the Debentures, or
an aggregate Stated Amount of the appropriate Applicable Ownership Interest (as
specified in clause __ of the definition of such term) of the Treasury
Portfolio, as the case may be, equal to the aggregate principal amount of the
Treasury Securities comprising part of the Type B Securities and (b)
transferring the related Type B Securities 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 Debentures or the appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case may be, to
the Collateral Agent and requesting that the Agent instruct the Collateral Agent
to release the Treasury Securities underlying such Type B Securities, whereupon
the Agent shall promptly give such instruction to the Collateral Agent,
substantially in the form of Exhibit A to the Pledge Agreement hereto. Upon
receipt of the Debentures or the appropriate Applicable Ownership Interest in
the Treasury Portfolio, as the case may be, described in clause (a) above and
the instructions described in clause (b) above, in accordance with the terms of
the Pledge Agreement, the Collateral Agent will effect the release of the
Treasury Securities having a corresponding aggregate principal amount from the
Pledge to the Agent free and clear of the Company's security interest therein,
and upon receipt thereof the Agent shall promptly:
(i) cancel the related Type B Security surrendered and
transferred;
(ii) transfer the Treasury Securities to the Holder that had been
components of such Type B Security; and
(iii) authenticate, execute on behalf of such Holder and deliver
an Type A Certificate executed by the Company in accordance with
Section 3.3 evidencing the same number of Purchase Contracts as were
evidenced by the cancelled Type B Securities.
Holders who elect to separate Treasury Securities from the related
Purchase Contract and to substitute Debentures for such Treasury Securities
shall be responsible for any fees or expenses payable to the Collateral Agent
for its services as Collateral Agent in respect of the substitution, and the
Company shall not be responsible for any such fees or expenses.
Holders of Type B Securities may establish or reestablish Type A
Securities in integral multiples of [20] Type B Securities for [20] Type A
Securities if a Tax Event Redemption has not occurred, and in integral multiples
of [20] Type B Securities for [20] Type A Securities if a Tax Event Redemption
has occurred.
In the event a Holder making a Collateral Substitution pursuant to this
Section 3.14 fails to effect a book-entry transfer of the Type B Securities or
fails to deliver a Type B Certificate(s) to the Agent after depositing
Debentures with the Collateral Agent, the Treasury Securities
24
constituting a part of such Type B Security, and any interest 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 Type B Security is so transferred or the
Type B Certificate is so delivered, or, with respect to a Type B Certificate,
such Holder provides evidence satisfactory to the Company and the Agent that
such Type B Certificate has been destroyed, lost or stolen, together with any
indemnity that may be required by the Agent and the Company.
Except as provided in this Section 3.14, for so long as the Purchase
Contract underlying a Type B Security remains in effect, such Type B Security
shall not be separable into its constituent parts and the rights and obligations
of the Holder of such Type B Security in respect of the Treasury Security and
Purchase Contract comprising such Type B Security may be acquired, and may be
transferred and exchanged only as a Type B Security.
SECTION 3.15 TRANSFER OF COLLATERAL UPON OCCURRENCE OF TERMINATION EVENT.
Upon the occurrence of a Termination Event and the transfer to the
Agent of the Debentures, the appropriate Applicable Ownership Interest in the
Treasury Portfolio or the Treasury Securities, as the case may be, underlying
the Type A Securities and the Type B Securities pursuant to the terms of the
Pledge Agreement, the Agent shall request transfer instructions with respect to
such Debentures or the appropriate 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 Type A
Register or the Type B Register, as the case may be. Upon book-entry transfer of
the Type A Securities or Type B Securities or delivery of a Type A Certificate
or Type B Certificate to the Agent with such transfer instructions, the Agent
shall transfer the Debentures, the appropriate Applicable Ownership Interest in
the Treasury Portfolio or Treasury Securities, as the case may be, underlying
such Type A Securities or Type B Securities, as the case may be, to such Holder
by book-entry transfer, or other appropriate procedures, in accordance with such
instructions. In the event a Holder of Type A Securities or Type B Securities
fails to effect such transfer or delivery, the Debentures, the appropriate
Applicable Ownership Interest in the Treasury Portfolio or Treasury Securities,
as the case may be, underlying such Type A Securities or Type B Securities, as
the case may be, and any interest thereon, shall be held in the name of the
Agent or its nominee in trust for the benefit of such Holder, until such Type A
Securities or Type B Securities are transferred or the Type A Certificate or
Type B Certificate is surrendered or such Holder provides satisfactory evidence
that such Type A Certificate or Type B Certificate has been destroyed, lost or
stolen, together with any indemnity that may be required by the Agent and the
Company. In the case of the Treasury Portfolio or any Treasury Securities, the
Purchase Contract Agent may dispose of the subject securities for cash and pay
the applicable portion of such cash to the Holders in lieu of such Holders'
Applicable Ownership Interest in such Treasury Portfolio, or any Treasury
Securities, where such Holder would otherwise have been entitled to receive less
than $1,000 of any such security.
SECTION 3.16 NO CONSENT TO ASSUMPTION.
Each Holder of a Security, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365 of
the Bankruptcy Code or otherwise, of the Purchase Contract by the Company, its
trustee in bankruptcy, receiver, liquidator or a person or entity performing
similar functions, in the event that the Company becomes a debtor
25
under the Bankruptcy Code or subject to other similar State or Federal law
providing for reorganization or liquidation.
ARTICLE IV
THE DEBENTURES
SECTION 4.1 PAYMENT OF INTEREST; RIGHTS TO INTEREST PRESERVED;
INTEREST RATE RESET; NOTICE.
A payment of interest on any Debentures or distribution with respect to
the appropriate Applicable Ownership Interest in the Treasury Portfolio, as the
case may be, which is paid on any Payment Date shall, subject to receipt thereof
by the Agent from the Collateral Agent as provided by the terms of the Pledge
Agreement, be paid to the Person in whose name the Type A Certificate (or one or
more Predecessor Type A Certificates) of which such Debentures or the
appropriate 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.
Each Type A Certificate evidencing Debentures delivered under this
Agreement upon registration of transfer of or in exchange for or in lieu of any
other Type A Certificate shall carry the rights to payment of interest accrued
and unpaid, and to accrue interest, which is carried by the Debentures
underlying such other Type A Certificate.
In the case of any Type A Security with respect to which Cash
Settlement of the underlying applicable portion of the Purchase Contract is
effected on the Business Day immediately preceding the Purchase Contract
Settlement Date pursuant to prior notice, or with respect to which Early
Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date, or with respect to which a Collateral Substitution is effected,
in each case on a date that is after any Record Date and on or prior to the next
succeeding Payment Date, interest on the Debentures or distributions with
respect to the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, underlying such Type A Securities otherwise
payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Cash Settlement or Early Settlement or Collateral
Substitution, and such interest or distributions shall, subject to receipt
thereof by the Agent, be payable to the Person in whose name the Type A
Certificate (or one or more Predecessor Type A 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 Type A Securities with
respect to which Cash Settlement or Early Settlement of the underlying Purchase
Contract is effected on the Business Day immediately preceding the Purchase
Contract Settlement Date or an Early Settlement Date, as the case may be, or
with respect to which a Collateral Substitution has been effected, payment of
interest on the related Debentures or distributions with respect to the
appropriate Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, that would otherwise be payable after the Purchase Contract Settlement
Date or Early Settlement Date shall not be payable hereunder to the Holder of
such Type A Securities; provided, however, that to the extent that such Holder
continues to hold the separated Debentures that formerly comprised a part of
such Holder's Type A Securities, such Holder shall be entitled to receive the
payment of interest on such separated Debentures.
26
The applicable Coupon Rate on the Debentures on and after the Purchase
Contract Settlement Date will be reset on the third Business Day immediately
preceding the Purchase Contract Settlement Date to the Reset Rate (such Reset
Rate to be in effect on and after the Purchase Contract Settlement Date). On the
Reset Announcement Date, the Reset Spread and the Two-Year Benchmark Treasury to
be used to determine the Reset Rate will be announced by FPL Group Capital or
the Company. On the Business Day immediately following the Reset Announcement
Date, FPL Group Capital or the Company will cause a notice of the Reset Spread
and Two-Year Benchmark Treasury to be published in an Authorized Newspaper.
Not later than 7 calendar days nor more than 15 calendar days prior to
the Reset Announcement Date, the Company or FPL Group Capital will request that
the Depositary (or any successor Clearing Agency or its nominee) notify by
first-class mail, postage prepaid, the Beneficial Owners or Clearing Agency
Participants holding Type A Securities or Type B Securities, of such Reset
Announcement Date and the procedures to be followed by such Holders of Type
Securities A who intend to settle their obligation under the Purchase Contract
with separate cash on the Purchase Contract Settlement Date.
SECTION 4.2 NOTICE AND VOTING.
Under and subject to the terms of the Pledge Agreement, the Agent will
be entitled to exercise the voting and any other consensual rights pertaining to
the Debentures pledged with the Collateral Agent but only to the extent
instructed by the Holders as described below. Upon receipt of notice of any
meeting at which holders of Debentures are entitled to vote or upon any
solicitation of consents, waivers or proxies of holders of Debentures, the Agent
shall, as soon as practicable thereafter, mail to the Holders of Type A
Securities 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 Debentures entitled to vote) shall be
entitled to instruct the Agent as to the exercise of the voting rights
pertaining to the Debentures underlying their Type A Securities and (c) stating
the manner in which such instructions may be given. Upon the written request of
the Holders of Type A Securities 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 Debentures as to
which any particular voting instructions are received. In the absence of
specific instructions from the Holder of Type A Securities, the Agent shall
abstain from voting the Debenture underlying such Type A Securities. The Company
hereby agrees, if applicable, to solicit Holders of Type A Securities to timely
instruct the Agent in order to enable the Agent to vote such Debentures.
SECTION 4.3 TAX EVENT REDEMPTION.
Upon the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date, the Redemption Price payable on the Tax Event
Redemption Date with respect to the Applicable Principal Amount of Debentures
shall be delivered to the Collateral Agent in exchange for the Pledged
Debentures. Pursuant to the terms of the Pledge Agreement, the Collateral Agent
will apply an amount equal to the Redemption Amount of such Redemption Price to
purchase on behalf of the Holders of Type A Securities the Treasury Portfolio
and promptly remit the remaining portion of such Redemption Price to the Agent
for payment to the Holders of such Type A Securities. The Treasury Portfolio
will be substituted for the Pledged
27
Debentures, and will be held by the Collateral Agent in accordance with the
terms of the Pledge Agreement to secure the obligation of each Holder of a Type
A Security to purchase the Common Stock of the Company under the Purchase
Contract constituting a part of such Type A Security. Following the occurrence
of a Tax Event Redemption prior to the Purchase Contract Settlement Date, the
Holders of Type A Securities and the Collateral Agent shall have such security
interests, rights and obligations with respect to the Treasury Portfolio as the
Holder of Type A Securities and the Collateral Agent had in respect of the
Debentures subject to the Pledge thereof as provided in Articles II, III, IV, V,
and VI of the Pledge Agreement, and any reference herein to the Debentures shall
be deemed to be reference to such Treasury Portfolio. The Company may cause to
be made in any Type A 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 Debentures as collateral.
[SECTION 4.4 CONSENT TO TREATMENT FOR TAX PURPOSES
. Each Holder of Type A or Type B Securities, by its acceptance thereof,
covenants and agrees to treat itself as the owner, for United States federal,
state and local income and franchise tax purposes, of (i) the related Debentures
or the appropriate Applicable Ownership Interest in the Treasury Portfolio, in
the case of the Type A Securities, or (ii) the Treasury Securities, in the case
of the Type B Securities. Each Holder of Type A Securities, by its acceptance
thereof, further covenants and agrees to treat the Debentures as indebtedness of
FPL Group Capital for United States federal, state and local income and
franchise tax purposes.]
ARTICLE V
THE PURCHASE CONTRACTS
SECTION 5.1 PURCHASE OF SHARES OF COMMON STOCK.
Each Purchase Contract shall, unless a Termination Event or an Early
Settlement in accordance with Section 5.9 hereof has occurred, obligate the
Holder of the related Security to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price"), a number of newly issued shares of Common Stock equal to the
Settlement Rate. The "Settlement Rate" is equal to (a) if the Applicable Market
Value (as defined below) is equal to or greater than $ __________ (the
"Threshold Appreciation Price"), _________ shares of Common Stock per Purchase
Contract, (b) if the Applicable Market Value is less than the Threshold
Appreciation Price, but is greater than $ ______, the number of shares of Common
Stock equal to $ ______ divided by the Applicable Market Value and (c) if the
Applicable Market Value is less than or equal to $_____, ______ shares of Common
Stock per Purchase Contract, in each case subject to adjustment as provided in
Section 5.6 (and in each case rounded upward or downward to the nearest
[1/10,000th] of a share). As provided in Section 5.10, no fractional shares of
Common Stock will be issued upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Price
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Purchase Contract Settlement
Date. The "Closing Price" of the Common Stock on any date of determination means
the closing sale price (or, if no closing price
28
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, 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 at the close of business that is the
primary market for the trading of the Common Stock.
Each Holder of a Type A Security or a Type B Security, by its
acceptance thereof, irrevocably authorizes the Agent to enter into and perform
the related Purchase Contract on its behalf as its attorney-in-fact (including
the execution of Certificates on behalf of such Holder), agrees to be bound by
the terms and provisions thereof, covenants and agrees to perform its
obligations under such Purchase Contracts, 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 Debentures, the Treasury
Portfolio or the Treasury Securities, as the case may be, pursuant to the Pledge
Agreement. Each Holder of a Type A Security or a Type B Security, 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 principal and interest on Debentures
or the Proceeds of the Treasury Securities or the Treasury Portfolio on the
Purchase Contract Settlement Date shall be paid by the Collateral Agent to the
Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
payments.
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 Purchase Contract underlying
such Certificate and the Pledge Agreement; and the transferor shall be released
from the obligations under this Agreement, the 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.
Subject to Section 5.3 herein, the Company shall pay, on each Payment
Date, the Contract Adjustment Payments payable in respect of each Purchase
Contract to the Person in whose name a Certificate (or one or more Predecessor
Certificates) is registered at the close of business on the Record Date next
preceding such Payment Date. The Contract Adjustment Payments will be payable at
the office of the Agent in The City of 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 Type A Register
or Type B Register.
29
Upon the occurrence of a Termination Event, the Company's obligation to
pay Contract Adjustment Payments (including any accrued or Deferred Contract
Adjustment Payments) shall cease.
Each Certificate delivered under this Agreement upon registration of
transfer of or in exchange for or in lieu of any other Certificate (including as
a result of a Collateral Substitution or the reestablishment of a Type A
Security) shall carry the rights to Contract Adjustment Payments accrued and
unpaid, and to accrue Contract Adjustment Payments, which were carried by the
Purchase Contracts which were represented by such other Certificates.
Subject to Section 5.9, in the case of any Security with respect to
which Early Settlement of the underlying Purchase Contract is effected on an
Early Settlement Date that is after any Record Date and on or prior to the next
succeeding Payment Date, Contract Adjustment Payments, if any, otherwise payable
on such Payment Date shall be payable on such Payment Date notwithstanding such
Early Settlement, and such Contract Adjustment Payments shall be paid to the
Person in whose name the Certificate evidencing such Security (or one or more
Predecessor Certificates) is registered at the close of business on such Record
Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security with respect to which Early Settlement of
the underlying Purchase Contract is effected on an Early Settlement Date,
Contract Adjustment Payments that would otherwise be payable after the Early
Settlement Date with respect to such Purchase Contract shall not be payable.
The Company's obligations with respect to Contract Adjustment Payments
(including any accrued or Deferred Contract Adjustment Payments), will be
subordinated and junior in right of payment to the Company's obligations under
any Senior Indebtedness.
SECTION 5.3 DEFERRAL OF PAYMENT DATES FOR CONTRACT ADJUSTMENT PAYMENTS.
The Company shall have the right, at any time prior to the Purchase
Contract Settlement 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 such payment (specifying the amount to be deferred) at least ten Business
Days prior to the earlier of (i) the next succeeding Payment Date or (ii) the
date the Company is required to give notice of the Record Date or Payment Date
with respect to payment of such Contract Adjustment Payments to the NYSE or
other applicable self-regulatory organization or to Holders of the Securities,
but in any event not less than one Business Day prior to such Record Date. In
connection with any Contract Adjustment Payments so deferred, additional
Contract Adjustment Payments on the amounts so deferred will accrue at the rate
of ______ % per annum (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 together with the accrued
additional Contract Adjustment Payments accrued thereon, being referred to
herein as the "Deferred Contract Adjustment Payments"). Deferred Contract
Adjustment Payments 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 Purchase
Contract Settlement Date. If the Purchase Contracts are terminated upon the
occurrence of a Termination Event, the Holder's right to receive Contract
Adjustment Payments and Deferred Contract Adjustment Payments will terminate.
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In the event that the Company elects to defer the payment of Contract
Adjustment Payments on the Purchase Contracts until the Purchase Contract
Settlement Date, each Holder will receive on the Purchase Contract Settlement
Date, in lieu of a cash payment, a number of shares of Common Stock (in addition
to a number of shares of Common Stock equal to the Settlement Rate) equal to (x)
the aggregate amount of Deferred Contract Adjustment Payments payable to such
Holder divided by (y) the Applicable Market Value.
No fractional shares of Common Stock will be issued by the Company with
respect to the payment of Deferred Contract Adjustment Payments on the Purchase
Contract Settlement Date. In lieu of fractional shares otherwise issuable with
respect to such payment of Deferred Contract Adjustment Payments, the Holder
will be entitled to receive an amount in cash as provided in Section 5.10.
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 capital stock or make guarantee
payments with respect to the foregoing (other than (i) purchases or acquisitions
of capital stock of the Company in connection with the satisfaction by the
Company of its obligations under any employee, director or agent benefit plans
or agreements or the satisfaction by the Company of its obligations pursuant to
any contract or security outstanding on the date of such event requiring the
Company to purchase its capital stock (ii) as a result of a reclassification of
the Company's capital stock or the exchange or conversion of all or a portion 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 the Company's capital stock pursuant to the conversion or exchange
provisions of the Company's capital stock or the security being converted or
exchanged, (iv) dividends or distributions in capital stock of the Company (or
rights to acquire capital stock) or repurchases or redemptions of capital stock
solely from the issuance or exchange of capital stock or (v) redemptions or
repurchases of any rights outstanding under a shareholder rights plan.
SECTION 5.4 PAYMENT OF PURCHASE PRICE.
(a) (i) Unless a Tax Event Redemption has occurred or a Holder
settles the underlying Purchase Contract through the early delivery of
cash to the Purchase Contract Agent in the manner described in Section
5.9, each Holder of a Type A Security must notify the Agent by use of
a notice in substantially the form of Exhibit C hereto of its
intention to pay in cash ("Cash Settlement") the Purchase Price for
the shares of Common Stock to be purchased pursuant to a Purchase
Contract. Such notice shall be made on or prior to 5:00 p.m., New York
City time, on the fifth Business Day immediately preceding the
Purchase Contract Settlement 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.
(ii) A Holder of a Type A Security who has so notified the Agent
of its intention to effect 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 Business Day immediately preceding the Purchase
Contract Settlement Date in lawful money of
31
the United States by certified or cashiers' check or wire transfer, in
each case in immediately available funds payable to or upon the order
of the Company. Any cash received by the Collateral Agent will be
invested promptly by the Collateral Agent in Permitted Investments and
paid to the Company on the Purchase Contract Settlement Date in
settlement of the Purchase Contract in accordance with the terms of
this Agreement and the Pledge Agreement. Any funds received by the
Collateral Agent in respect of the investment earnings from the
investment in such Permitted Investments, will be distributed to the
Agent when received for payment to the Holder.
(iii) If a Holder of a Type A Security fails to notify the Agent
of its intention to effect a Cash Settlement in accordance with
paragraph (a)(i) above, such failure shall constitute a default under
the Purchase Contract and the Holder shall be deemed to have consented
to the disposition of the Pledged Debentures pursuant to the
remarketing as described in paragraph (b) below. If a Holder of a Type
A Security does notify the Agent as provided in paragraph (a)(i) above
of its intention to effect a Cash Settlement, but fails to make such
payment as required by paragraph (a)(ii) above, such failure shall
also constitute a default; however, the Debentures of such a Holder
will not be remarketed but instead the Collateral Agent, for the
benefit of the Company, will exercise its rights as a secured party
with respect to such Debentures, including those rights specified in
paragraph (c) below.
(b) In order to dispose of the Debentures of Type A Security Holders
who have not notified the Agent of their intention to effect a Cash Settlement
as provided in paragraph (a)(i) above, the Company shall engage a nationally
recognized investment bank (the "Remarketing Agent") pursuant to the Remarketing
Agreement to sell such Debentures. In order to facilitate the remarketing, the
Agent shall notify the Remarketing Agent, by 10:00 a.m., New York City time, on
the fourth Business Day immediately preceding the Purchase Contract Settlement
Date, of the aggregate number of Debentures to be remarketed. Concurrently, the
Collateral Agent, pursuant to the terms of the Pledge Agreement, will present
for remarketing such Debentures to the Remarketing Agent. Upon receipt of such
notice from the Agent and such Debentures from the Collateral Agent, the
Remarketing Agent will, on the third Business Day immediately preceding the
Purchase Contract Settlement Date, use its reasonable efforts to remarket such
Debentures on such date at a price of approximately [_____%] (but not less than
[___%]) of the aggregate principal amount of such Debentures, plus accrued and
unpaid interest (including deferred interest), if any, thereon. After deducting
the Remarketing Fee from any amount of such Proceeds in excess of the aggregate
principal amount of the remarketed Debentures plus accrued and unpaid interest
(including any deferred interest), if any, then the Remarketing Agent will remit
the remaining portion of the Proceeds from such remarketing to the Collateral
Agent. Such portion of the Proceeds, equal to the aggregate principal amount of
such Debentures, will automatically be applied by the Collateral Agent, in
accordance with the Pledge Agreement to satisfy in full such Type A Security
holders' obligations to pay the Purchase Price for the Common Stock under the
related Purchase Contracts on the Purchase Contract Settlement Date. Any
Proceeds in excess of those required to pay the Purchase Price and the
Remarketing Fee will be remitted to the Agent for payment to the Holders of the
related Type A Security. Type A Security Holders whose Debentures are so
remarketed will not otherwise be responsible for the
32
payment of any Remarketing Fee in connection therewith. If such a remarketing
results in a Failed Remarketing in accordance with the terms of the Pledge
Agreement, the Collateral Agent, for the benefit of the Company, will exercise
its rights as a secured party with respect to such Debentures, including those
actions specified in paragraph (c) below; provided, that if upon a Failed
Remarketing the Collateral Agent exercises such rights for the benefit of the
Company with respect to such Debentures, any accrued and unpaid interest on such
Debentures will become payable by the Company to the Agent for payment to the
Holder of the Type A Securities to which such Debentures relate. Such payment
will be made by the Company on or prior to 11 a.m. New York City time on the
Purchase Contract Settlement Date in lawful money of the United States by
certified or cashiers' check or wire transfer in immediately available funds
payable to or upon the order of the Agent. The Company will cause a notice of
such Failed Remarketing to be published on the second Business Day immediately
preceding the Purchase Contract Settlement Date in an Authorized Newspaper.
(c) With respect to any Debentures beneficially owned by Holders who
have elected Cash Settlement but failed to deliver cash as required in (a)(ii)
above, or with respect to Debentures which are subject to a Failed Remarketing,
the Collateral Agent for the benefit of the Company reserves all of its rights
as a secured party with respect thereto and, subject to applicable law and
paragraph (h) below, may, among other things, (i) retain the Debentures in full
satisfaction of the Holders' obligations under the Purchase Contracts or (ii)
sell the Debentures in one or more public or private sales and apply the
proceeds of such sale in full satisfaction of the Holders' obligations under the
Purchase Contract.
(d) (i) Unless a Holder of Type B Securities or Type A Securities (if
a Tax Event Redemption has occurred) settles the underlying Purchase
Contract through the early delivery of cash to the Purchase Contract
Agent in the manner described in Section 5.9, each Holder of a Type B
Security or Type A Security (if a Tax Event Redemption has occurred)
must notify the Agent by use of a notice in substantially the form of
Exhibit C hereto of its intention to effect a Cash Settlement for the
shares of Common Stock to be purchased pursuant to the applicable
portion of the Purchase Contract on or prior to 5:00 p.m., New York
City time, on the second Business Day immediately preceding the
Purchase Contract Settlement Date.
(ii) A Holder of a Type B Security or Type A Security (if a Tax
Event Redemption has occurred) who has so notified the Agent of its
intention to effect a Cash Settlement in accordance with paragraph
(d)(i) above is required to pay the Purchase Price to the Collateral
Agent prior to 11:00 a.m., New York City time, on the Business Day
immediately preceding the Purchase Contract Settlement Date in lawful
money of the United States by certified or cashiers' check or wire
transfer, in each case in immediately available funds payable to or
upon the order of the Company. Any cash received by the Collateral
Agent will be invested promptly by the Collateral Agent in Permitted
Investments and paid to the Company on the Purchase Contract
Settlement Date in settlement of the Purchase Contract in accordance
with the terms of this Agreement and the Pledge Agreement. Any funds
received by the Collateral Agent in respect of the
33
investment earnings from the investment in such Permitted Investments
will be distributed to the Agent when received for payment to the
Holder.
(iii) If a Holder of a Type B Security fails to notify the
Agent of its intention to effect a Cash Settlement in accordance with
paragraph (d)(i) above, or if a Holder of a Type A Security (if a Tax
Event Redemption has occurred) does notify the Agent as provided in
paragraph (d)(i) above of its intention to effect a Cash Settlement,
but fails to make such payment as required by paragraph (d)(ii) above,
then such failure shall constitute a default under the Purchase
Contract upon the maturity of the Pledged Treasury Securities or the
appropriate Applicable Ownership Interest in the Treasury Portfolio, as
the case may be, held by the Collateral Agent on the Business Day
immediately prior to the Purchase Contract Settlement Date, the
principal amount of the Treasury Securities or the appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, received by the Collateral Agent will be invested promptly in
overnight Permitted Investments. On the Purchase Contract Settlement
Date an amount equal to the Purchase Price will be remitted to the
Company as payment thereof without receiving any instructions from the
Holder. In the event the sum of the Proceeds from the related Pledged
Treasury Securities or the appropriate Applicable Ownership Interest in
the Treasury Portfolio, as the case may be, and the investment earnings
earned from such investments is in excess of the aggregate Purchase
Price of the Purchase Contracts being settled thereby, the Collateral
Agent will distribute such excess to the Agent for the benefit of the
Holder of the related Type B Security or Type A Security when received.
(e) Any distribution to Holders of excess funds and interest described
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, by check mailed to
the address of the Person entitled thereto at such address as it appears on the
Register.
(f) Unless a Holder settles the underlying Purchase Contract through
the early delivery of cash to the Collateral Agent in the manner described
herein, the Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificate therefor to the
Holder unless it shall have received payment in full of the Purchase Price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
(g) Upon Cash Settlement of any Purchase Contract, (i) the Collateral
Agent will in accordance with the terms of the Pledge Agreement cause the
appropriate Pledged Debentures or the appropriate Pledged Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, or the Pledged Treasury
Securities underlying the relevant Security to be released from the Pledge by
the Collateral Agent free and clear of any security interest of the Company and
transferred to the Agent for delivery to the Holder thereof or its designee as
soon as practicable and (ii) subject to the receipt thereof from the Collateral
Agent, the Agent shall, by book-entry transfer, or other appropriate procedures,
in accordance with instructions provided by the Holder thereof, transfer such
Debentures or the appropriate Applicable Ownership Interest in the Treasury
Portfolio, as the case may be, or such Treasury Securities (or, if no such
instructions are given to the Agent by the Holder, the Agent shall hold such
Debentures or the Treasury
34
Portfolio, as the case may be, or such Applicable Ownership Interest in the
Treasury Portfolio, and any distribution thereon, in the name of the Agent or
its nominee in trust for the benefit of such Holder).
(h) The obligations of the Holders to pay the Purchase Price are
non-recourse obligations and are payable solely out of any Cash Settlement or
the Proceeds of any Collateral pledged to secure the obligations of the Holders
and in no event will Holders be liable for any deficiency between the proceeds
of Collateral disposition and the Purchase Price.
SECTION 5.5. ISSUANCE OF SHARES OF COMMON STOCK.
Unless a Termination Event or an Early Settlement shall have occurred,
on the Purchase Contract Settlement Date, upon the Company's receipt of payment
in full of the Purchase Price for the shares of Common Stock purchased by the
Holders pursuant to the foregoing provisions of this Article and subject to
Section 5.6(b), the Company shall issue and deposit with the Agent, for the
benefit of the Holders of the Outstanding Securities, one or more certificates
representing the newly issued shares of Common Stock registered in the name of
the Agent (or its nominee) as custodian for the Holders (such certificates for
shares of Common Stock, together with any dividends or distributions for which
both a record date and payment date for such dividend or distribution has
occurred after the Purchase Contract Settlement Date, being hereinafter referred
to as the "Purchase Contract Settlement Fund") to which the Holders are entitled
hereunder. Subject to the foregoing, upon surrender of a Certificate to the
Agent on or after the Purchase Contract Settlement Date, together with
settlement instructions thereon duly completed and executed, the Holder of such
Certificate shall be entitled to receive in exchange therefor a certificate
representing that number of whole shares of Common Stock which such Holder is
entitled to receive pursuant to the provisions of this Article V (after taking
into account all Securities then held by such Holder) together with cash in lieu
of fractional shares as provided in Section 5.10 and any dividends or
distributions with respect to such shares constituting part of the Purchase
Contract Settlement Fund, but without any interest thereon, and the Certificate
so surrendered shall forthwith be cancelled. Such shares shall be registered in
the name of the Holder or the Holder's designee as specified in the settlement
instructions provided by the Holder to the Agent. If any shares of Common Stock
issued in respect of a Purchase Contract are to be registered to a Person other
than the Person in whose name the Certificate evidencing such Purchase Contract
is registered, no such registration shall be made unless the Person requesting
such registration has paid any transfer and other taxes required by reason of
such registration in a name other than that of the registered Holder of the
Certificate evidencing such Purchase Contract or has established to the
satisfaction of the Company that such tax either has been paid or is not
payable.
SECTION 5.6. ADJUSTMENT OF SETTLEMENT RATE.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on the Common Stock in Common Stock, the Settlement Rate, in effect
at the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution, shall be increased by dividing such Settlement Rate by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close
35
of business on the date fixed for such determination and the denominator shall
be the sum of such number of shares and the total number of shares constituting
such dividend or other distribution, such increase to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (1), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include any shares issuable in respect of
any scrip certificates issued in lieu of fractions of shares of Common Stock.
The Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to
all holders of its Common Stock (that are not available on an equivalent basis
to Holders of the Securities upon settlement of the Purchase Contracts
underlying such Securities) entitling such holders of the Common Stock, for a
period expiring within 45 days after the record date for the determination of
stockholders entitled to receive such rights, options or warrants, to subscribe
for or purchase shares of Common Stock at a price per share less than the
Current Market Price per share of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights, options or
warrants (other than pursuant to a dividend reinvestment plan, including such a
plan that provides for purchases of Common Stock by non-shareholders), the
Settlement Rate, in effect at the opening of business on the day following the
date fixed for such determination, shall be increased by dividing such
Settlement Rate by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such Current Market Price
and the denominator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination plus the number
of shares of Common Stock so offered for subscription or purchase, such increase
to become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
paragraph (2), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
any shares issuable in respect of any scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company shall not issue any such
rights, options or warrants in respect of shares of Common Stock held in the
treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common Stock, the
Settlement Rate, in effect at the opening of business on the day following the
day upon which such subdivision or split becomes effective, shall be
proportionately increased, and, conversely, in case outstanding shares of Common
Stock shall each be combined into a smaller number of shares of Common Stock,
the Settlement Rate, in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may be, to become effective
immediately after the opening of business on the day following the day upon
which such subdivision, split or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness or
assets (including securities, but excluding any rights or warrants referred to
in paragraph (2) of this Section, any dividend or
36
distribution paid exclusively in cash and any dividend or distribution referred
to in paragraph (1) of this Section), the Settlement Rate, in effect at the
opening of business on the day following the day on which such dividend of
distribution was effected, shall be adjusted so that the same shall equal the
rate determined by dividing the Settlement Rate in effect immediately prior to
the close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the Current Market Price per share of the Common Stock on the date fixed for
such determination less the then fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Agent) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of Common Stock and the
denominator shall be such Current Market Price per share of the Common Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following the date fixed for the determination of stockholders
entitled to receive such distribution. In any case in which this paragraph (4)
is applicable, paragraph (2) of this Section shall not be applicable.
(5) In case the Company shall, (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 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 [__%] of the product of the
Current Market Price per share of the Common Stock on the date for the
determination of holders of shares of Common Stock entitled to receive such
distribution times the number of shares of Common Stock outstanding on such
date, then, and in each such case, immediately after the close of business on
such date for determination, the Settlement Rate, shall be increased so that the
same shall equal the rate determined by dividing the Settlement Rate in effect
immediately prior to the close of business on the date fixed for determination
of the stockholders entitled to receive such distribution by a fraction (i) the
numerator of which shall be equal to the Current Market Price per share of the
Common Stock on the date fixed for such determination less an amount equal to
the quotient of (x) the 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 (ii)
the denominator of which shall be equal to the Current Market Price per share of
the Common Stock on such date for determination.
(6) In case (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
37
(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 [__%] of the
product of the Current Market Price per share of the Common Stock as of the last
time (the "Expiration Time") tenders could have been made pursuant to such
tender or exchange offer (as it may be amended) times the number of shares of
Common Stock outstanding (including any tendered shares) on the Expiration Time,
then, and in each such case, immediately prior to the opening of business on the
day after the date of the Expiration Time, the Settlement Rate shall be adjusted
so that the same shall equal the rate determined by dividing the Settlement Rate
immediately prior to the close of business on the date of the Expiration Time by
a fraction (i) the numerator of which shall be equal to (A) the product of (I)
the Current Market Price per share of the Common Stock on the date of the
Expiration Time and (II) the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time less (B) the amount of
cash plus the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the 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 (ii) the denominator of which shall be equal to
the product of (A) the Current Market Price per share of the Common Stock as of
the Expiration Time and (B) the number of shares of Common Stock outstanding
(including any tendered shares) as of the Expiration Time less the number of all
shares validly tendered and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the "Purchased
Shares").
(7) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any reclassification
upon a Reorganization Event to which Section 5.6(b) applies) shall be deemed to
involve (a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of stockholders entitled
to receive such distribution" and the "date fixed for such determination" within
the meaning of paragraph (4) of this Section), and (b) a subdivision, 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).
38
(8) The "Current Market Price" per share of Common Stock on
any day means the average of the daily Closing Prices for the five consecutive
Trading Days selected by the Company commencing not more than 30 Trading Days
before, and ending not later than, the earlier of the day in question and the
day before the "ex date" with respect to the issuance or distribution requiring
such computation. For purposes of this paragraph, the term "ex date," when used
with respect to any issuance or distribution, shall mean the first date on which
the Common Stock trades regular way on such exchange or in such market without
the right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate shall be calculated
to the nearest [1/10,000th] of a share of Common Stock (or if there is not a
nearest [1/10,000th] of a share to the next lower [1/10,000th] of a share). No
adjustment in the Settlement Rate shall be required unless such adjustment would
require an increase or decrease of at least one percent therein; provided,
however, that any adjustments which by reason of this subparagraph are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. If an adjustment is made to the Settlement Rate pursuant
to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section 5.6(a),
an adjustment shall also be made to the Applicable Market Value solely to
determine which of clauses (a), (b) or (c) of the definition of Settlement Rate
in Section 5.1 will apply on the Purchase Contract Settlement Date. Such
adjustment shall be made by multiplying the Applicable Market Value by a
fraction of which the numerator shall be the Settlement Rate immediately after
such adjustment pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10)
of this Section 5.6(a) and the denominator shall be the Settlement Rate
immediately before such adjustment; provided, however, that if such adjustment
to the Settlement Rate is required to be made pursuant to the occurrence of any
of the events contemplated by paragraph (1), (2), (3), (4), (5), (7) or (10) of
this Section 5.6(a) during the period taken into consideration for determining
the Applicable Market Value, appropriate and customary adjustments shall be made
to the Settlement Rate.
(10) The Company may make such increases in the Settlement
Rate, in addition to those required by this Section, as it considers to be
advisable in order to avoid or diminish the effect of any income tax to any
holders of shares of Common Stock resulting from any dividend or distribution of
stock or issuance of rights or warrants to purchase or subscribe for stock or
from any event treated as such for income tax purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization Event.
In the event of (i) any consolidation or merger of the Company with or into
another Person (other than a merger or consolidation in which the Company is the
continuing corporation and in which the Common Stock outstanding immediately
prior to the merger or consolidation is not exchanged for cash, securities or
other property of the Company or another corporation), (ii) any sale, transfer,
lease or conveyance to another Person of the property of the Company as an
entirety or substantially as an entirety, (iii) any statutory exchange of
securities of the Company with another Person (other than in connection with a
merger or acquisition) or (iv) any liquidation, dissolution or winding up of the
Company other than as a result of or after the occurrence of a Termination Event
(any such event, a "Reorganization Event"), the Settlement Rate will be adjusted
to provide that each Holder of Securities will receive on the Purchase Contract
Settlement Date with respect to each Purchase Contract forming a part thereof,
the kind and amount of securities, cash and other property receivable upon such
Reorganization Event
39
(without any interest thereon, and without any right to dividends or
distribution thereon which have a record date that is prior to such Purchase
Contract Settlement Date) by a Holder of the number of shares of Common Stock
issuable on account of each Purchase Contract if the Purchase Contract
Settlement Date had occurred immediately prior to such Reorganization Event
assuming such Holder of Common Stock is not a Person with which the Company
consolidated or into which the Company merged or which merged into the Company
or with which such statutory exchange of securities was effected or to which
such sale, transfer, lease or conveyance was made, as the case may be (any such
Person, a "Constituent Person"), or an Affiliate of a Constituent Person to the
extent such Reorganization Event provides for different treatment of Common
Stock held by Affiliates of the Company and non-affiliates and such Holder
failed to exercise its rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such Reorganization Event
(provided that if the kind or amount of securities, cash and other property
receivable upon such Reorganization Event is not the same for each share of
Common Stock held immediately prior to such Reorganization Event by other than a
Constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("non-electing share"), then for the
purpose of this Section the kind and amount of securities, cash and other
property receivable upon such Reorganization Event by each non-electing share
shall be deemed to be the kind and amount so receivable per share by a plurality
of the non-electing shares). In the event of such a Reorganization Event, the
Person formed by such consolidation, merger or exchange or the Person which
acquires the assets of the Company or, in the event of a liquidation or
dissolution of the Company, the Company or a liquidating trust created in
connection therewith, shall execute and deliver to the Agent an agreement
supplemental hereto providing that the Holders of each Outstanding Security
shall have the rights provided by this Section 5.6. Such supplemental agreement
shall provide for adjustments which, for events subsequent to the effective date
of such supplemental agreement, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section. The above
provisions of this Section shall similarly apply to successive Reorganization
Events.
SECTION 5.7. NOTICE OF ADJUSTMENTS AND CERTAIN OTHER EVENTS.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the Settlement Rate in accordance with
Section 5.6 and prepare and transmit to the Agent a Company Certificate
setting forth the Settlement Rate, the method of calculation thereof in
reasonable detail, and the facts requiring such adjustment and upon
which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an
event that requires an adjustment to the Settlement Rate pursuant to
Section 5.6 (or if the Company is not aware of such occurrence, as soon
as practicable after becoming so aware), provide a written notice to
the Holders of the Securities of the occurrence of such event and a
statement in reasonable detail setting forth the method by which the
adjustment to the Settlement Rate was determined and setting forth the
adjusted Settlement Rate.
40
(b) The Agent shall not at any time be under any duty or responsibility
to any Holder of Securities to determine whether any facts exist which may
require any adjustment of the Settlement Rate, or with respect to the nature or
extent or calculation of any such adjustment when made, or with respect to the
method employed in making the same. The Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common
Stock, or of any securities or property, which may at the time be issued or
delivered with respect to any Purchase Contract; and the Agent makes no
representation with respect thereto. The Agent shall not be responsible for any
failure of the Company to issue, transfer or deliver any shares of Common Stock
pursuant to a Purchase Contract or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article.
SECTION 5.8. TERMINATION EVENT; NOTICE.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Contract
Adjustment Payments or 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 Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon and after the
occurrence of a Termination Event, the Securities shall thereafter represent the
right to receive the Debentures or the appropriate Applicable Ownership Interest
in the Treasury Portfolio, as the case may be, forming a part of such Securities
in the case of Type A Securities, or Treasury Securities in the case of Type B
Securities, 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 thereof to the Agent, the Collateral Agent and to the Holders at their
addresses as they appear in the Register.
SECTION 5.9. EARLY SETTLEMENT.
(a) Purchase Contracts may be settled early ("Early Settlement") in the
case of Type A Securities (unless a Tax Event Redemption has occurred) on or
prior to the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, but only in integral multiples of ____ Type A Securities and in
the case of Type B Securities on or prior to the second Business Day immediately
preceding the Purchase Contract Settlement Date, but only in integral multiples
of ______ Type B Securities, in each case, as provided herein; provided however,
that if a Tax Event Redemption has occurred and the Treasury Portfolio has
become a component of the Type A Securities, Purchase Contracts underlying Type
A Securities may be settled early, on or prior to the second Business Day
immediately preceding the Purchase Contract Settlement Date, but only in an
aggregate amount of $_________ or in an integral multiple thereof. In order to
exercise the right to any such Early Settlement with respect to any Purchase
Contracts, the Holder of the Certificate evidencing Securities shall deliver
such Certificate to the Agent at the Corporate Trust Office duly endorsed for
transfer to the Company or in blank with the form of Election to Settle Early on
the reverse thereof duly completed and accompanied by payment (payable to the
Company in immediately available funds in an amount (the "Early Settlement
Amount") equal to the sum of (i) $_______ times the number of Purchase Contracts
with respect to which the Holder has elected to effect Early Settlement plus
(ii) if such delivery is made with respect to any Purchase Contracts during the
period from the close of business on any Record
41
Date next preceding any Payment Date to the opening of business on such Payment
Date, an amount equal to the Contract Adjustment Payments payable on such
Payment Date with respect to such Purchase Contracts. Except as provided in the
immediately preceding sentence and subject to the second to last paragraph of
Section 5.2, no payment or adjustment shall be made upon Early Settlement of any
Purchase Contract on account of any Contract Adjustment Payments accrued on such
Purchase Contract or on account of any dividends on the Common Stock issued upon
such Early Settlement. In order for any of the foregoing requirements to be
considered as satisfied with respect to a Purchase Contract underlying any
Security on or by a particular Business Day, such requirement must be met at or
prior to 5:00 p.m., New York City time, on such Business Day, the first Business
Day on which all of the foregoing such requirements have been satisfied by 5:00
p.m., New York City time, shall be the "Early Settlement Date" with respect to
such Security.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Company shall issue, and the Holder shall be entitled to
receive, _______ shares of Common Stock on account of each Purchase Contract as
to which Early Settlement is effected (the "Early Settlement Rate"); provided,
however, that upon the Early Settlement of the Purchase Contracts, the Holder of
such related Securities will forfeit the right to receive any Deferred Contract
Adjustment Payments. 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 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 for the full
number of shares of Common Stock issuable upon such Early Settlement together
with payment in lieu of any fraction of a share, as provided in Section 5.10.
(c) No later than the third Business Day after the applicable Early
Settlement Date the Company shall cause (i) the shares of Common Stock issuable
upon Early Settlement of Purchase Contracts to be issued and delivered, and (ii)
the related Debentures or the appropriate Applicable Ownership Interest in the
Treasury Portfolio, in the case of Type A Securities, or the related Treasury
Securities, in the case of Type B Securities, to be released from the Pledge by
the Collateral Agent and transferred, in each case to the Agent for delivery to
the Holder thereof or its designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of shares of Common Stock from the Company and the Debentures, the
appropriate Applicable Ownership Interest in the Treasury Portfolio or 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 Securities, (i) transfer to the Holder the
Debentures, Treasury Portfolio or Treasury Securities, as the case may be,
forming a part of such Securities, and (ii) deliver to the Holder a certificate
or certificates for the full number of shares of Common Stock issuable upon such
Early Settlement together with payment in lieu of any fraction of a share, as
provided in Section 5.10.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the Agent
shall authenticate, countersign and deliver to the Holder
42
thereof, at the expense of the Company, a Certificate evidencing the Securities
as to which Early Settlement was not effected.
SECTION 5.10. NO FRACTIONAL SHARES.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Purchase Contract
Settlement Date or upon Early Settlement of any Purchase Contracts. If
Certificates evidencing more than one Purchase Contract shall be surrendered for
settlement at one time by the same Holder, the number of full shares of Common
Stock which shall be delivered upon settlement shall be computed on the basis of
the aggregate number of Purchase Contracts evidenced by the Certificates so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the
Purchase Contract Settlement Date or upon Early Settlement, the Company, through
the Agent, shall make a cash payment in respect of such fractional interest in
an amount equal to the value of such fractional shares times the (i) the
Threshold Application Price, in the case of an Early Settlement or (ii) the
Applicable Market Value, in all other circumstances. The Company shall provide
the Agent from time to time with sufficient funds to permit the Agent to make
all cash payments required by this Section 5.10 in a timely manner.
SECTION 5.11. CHARGES AND TAXES.
The Company will pay all stock transfer and similar taxes attributable
to the initial issuance and delivery of the shares of Common Stock pursuant to
the Purchase Contracts and in payment of any Deferred Contract Adjustment
Payments; provided, however, that the Company shall not be required to pay any
such tax or taxes which may be payable in respect of any exchange of or
substitution for a Certificate evidencing a Security or any issuance of a share
of Common Stock in a name other than that of the registered Holder of a
Certificate surrendered in respect of the Securities evidenced thereby, other
than in the name of the Agent, as custodian for such Holder, and the Company
shall not be required to issue or deliver such share certificates or
Certificates unless or until the Person or Persons requesting the transfer or
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
ARTICLE VI
REMEDIES
SECTION 6.1. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE CONTRACT ADJUSTMENT
PAYMENTS AND TO PURCHASE COMMON STOCK.
In the event that Contract Adjustment Payments shall constitute a
component of Type A Securities or Type B Securities, the Holder of any Type A
Security or Type B Security 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, the prepayment of Contract Adjustment Payments pursuant
to Section 5.9(a) and the forfeiture of any Deferred Contract Adjustment
Payments upon Early Settlement pursuant to Section 5.9(b) or upon the occurrence
of a Termination Event), to receive payment of each installment of the Contract
Adjustment Payments with respect to the Purchase Contract constituting a part of
such Security on the respective Payment
43
Date for such Security and to purchase Common Stock pursuant to such Purchase
Contract and, in each such case, to institute suit for the enforcement of any
such payment and right to purchase Common Stock, and such rights shall not be
impaired without the consent of such Holder.
SECTION 6.2. RESTORATION OF RIGHTS AND REMEDIES.
If any Holder has instituted any proceeding to enforce any right or
remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company and such Holder shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of such Holder
shall continue as though no such proceeding had been instituted.
SECTION 6.3. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Certificates in the last paragraph of
Section 3.10, no right or remedy herein conferred upon or reserved to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.4. DELAY OR OMISSION NOT WAIVER.
No delay or omission of any Holder to exercise any right or remedy upon
a default shall impair any such right or remedy or constitute a waiver of any
such right. Every right and remedy given by this Article or by law to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
SECTION 6.5. UNDERTAKING FOR COSTS.
All parties to this Agreement agree, and each Holder of Type A
Securities or Type B Securities, by its acceptance of such Type A Securities or
Type B Securities shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Agreement, or in any suit against the Agent for any action taken, suffered
or omitted by it as Agent, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided that
the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Agent, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than [__%] of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of payment of interest on any Debentures or Contract Adjustment
Payments, if any, on any Purchase Contract on or after the respective Payment
Date therefor (subject to Section 5.3) in respect of any Security held by such
Holder, or for enforcement of the right to purchase shares of Common Stock under
the Purchase Contracts constituting part of any Security held by such Holder.
44
SECTION 6.6. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Agent or the Holders, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VII
THE AGENT
SECTION 7.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Prior to a Default and after the curing or waiving of all such
Defaults that may have occurred,
(1) the Agent undertakes to perform, with respect to the
Securities, such duties and only such duties as are specifically set
forth in this Agreement and no implied covenants or obligations shall
be read into this Agreement against the Agent; and
(2) the Agent may, with respect to the Securities,
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, in the absence of bad
faith on the part of the Agent, upon certificates or opinions furnished
to the Agent and conforming to the requirements of this Agreement; but
in the case of any certificates or opinions which by any provision
hereof are specifically required to be furnished to the Agent, the
Agent shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Agent was negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers.
45
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of this
Section.
(d) The Agent is authorized to execute, deliver and perform the Pledge
Agreement in its capacity as Agent and to grant the Pledge. 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 by the Agent pursuant to, such Pledge Agreement.
(e) In case a Default has occurred (that has not been cured or waived),
and is actually known by a Responsible Officer of the Agent, the Agent shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(f) At the request of the Company, the Agent is authorized to execute
and deliver one or more Remarketing Agreements to, among other things,
effectuate Section 5.4
SECTION 7.2. NOTICE OF DEFAULT.
Within 90 days after the occurrence of any Default hereunder of which a
Responsible Officer of the Agent has actual knowledge, the Agent shall transmit
by mail to the Company and the Holders of Securities, as their names and
addresses appear in the Register, notice of such Default hereunder, unless such
Default shall have been cured or waived; provided that, except for a Default in
any payment obligation hereunder, the Agent shall be protected in withholding
such notice if and so long as the Responsible Officer of the Agent in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
SECTION 7.3. CERTAIN RIGHTS OF AGENT.
Subject to the provisions of Section 7.1:
(a) the Agent may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company 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 a Company Certificate;
(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;
46
(e) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the Agent,
in its discretion, may make reasonable further inquiry or investigation into
such facts or matters related to the execution, delivery and performance of the
Purchase Contracts as it may see fit, and, if the Agent shall determine to make
such further inquiry or investigation, it shall be given a reasonable
opportunity to examine the books, records and premises of the Company personally
or by agent or attorney;
(f) the Agent may execute any of the powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys or an
Affiliate and the Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney or an Affiliate appointed with
due care by it hereunder; and
(g) the rights, privileges, protections, immunities and benefits given
to the Agent, including, without limitations, its right to be indemnified, are
extended to, and shall be enforceable by, the Agent in each of its capacities
hereunder.
SECTION 7.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Certificates shall be taken as
the statements of the Company and the Agent assumes no responsibility for their
accuracy. The Agent makes no representations as to the validity or sufficiency
of either this Agreement or of the Securities, or of the Pledge Agreement or the
Pledge. The Agent shall not be accountable for the use or application by the
Company of the proceeds in respect of the Purchase Contracts.
SECTION 7.5. MAY HOLD SECURITIES.
Any Registrar or any other agent of the Company, or the Agent and its
Affiliates, in their individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company, the Collateral
Agent or any other Person with the same rights it would have if it were not
Registrar or such other agent, or the Agent.
SECTION 7.6. MONEY HELD IN CUSTODY.
Money held by the Agent in custody hereunder need not be segregated
from the other funds except to the extent required by law or provided herein.
The Agent shall be under no obligation to invest or pay interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 7.7. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Agent from time to time such compensation
for all services rendered by it hereunder as the parties shall agree
from time to time (which compensation shall not be limited by any
provisions of law in regards to the compensation of a trustee of an
express trust);
47
(b) except as otherwise expressly provided herein, to
reimburse the Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in accordance
with any provision of this Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Agent and any predecessor Agent for, and
to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration or the performance of
its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
"Agent" for purposes of this Section 7.7 shall include any predecessor
Agent; provided, however, that the negligence or bad faith of any Agent
hereunder shall not affect the rights of any other Agent hereunder.
When the Agent incurs expenses or renders services in an action or
proceeding commenced pursuant to Section 4.3 of the Pledge Agreement upon the
occurrence of a Termination Event, the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any applicable Federal
or State bankruptcy, insolvency or other similar law.
The provisions of this Section 7.7 shall survive the termination of
this Agreement and the Pledge Agreement.
SECTION 7.8. CORPORATE AGENT REQUIRED; ELIGIBILITY.
There shall at all times be an Agent hereunder which shall be (i) not
an Affiliate of the Company and (ii) a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having (or being a member of a bank holding company having) a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by Federal or State authority. 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.
48
(b) The Agent may resign at any time by giving written notice thereof
to the Company 60 days prior to the effective date of such resignation. If the
instrument of acceptance by a successor Agent required by Section 7.10 shall not
have been delivered to the Agent within 30 days after the giving of such notice
of resignation, the resigning Agent may petition any court of competent
jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Securities delivered to the Agent and the
Company.
(d) If at any time
(1) the Agent fails to comply with Section 310(b) of the TIA,
after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Agent shall cease to be eligible under Section 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, (i) the Company by a Board Resolution may remove the
Agent, or (ii) any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Agent and
the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any reason, 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, the Agent or any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to
give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders 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.
(g) If the Agent has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the TIA, the Agent and the Company shall
in all respects comply with the provisions of Section 310(b) of the TIA.
49
SECTION 7.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Agent, every
such successor Agent so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Agent shall become
effective and such successor Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers, agencies and duties of the
retiring Agent; but, on the request of the Company or the successor Agent, such
retiring Agent shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Agent all the rights, powers and
trusts of the retiring Agent and shall duly assign, transfer and deliver to such
successor Agent all property and money held by such retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies referred
to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the time
of such acceptance such successor Agent shall be qualified and eligible under
this Article.
SECTION 7.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Person into which the Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of the
Agent, shall be the successor of the Agent hereunder, provided such Person 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 may adopt such authentication
and execution and deliver the Certificates so authenticated and executed with
the same effect as if such successor Agent had itself authenticated and executed
such Securities.
SECTION 7.12. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Agent in its
capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Agent, and furnish to the Agent reasonable proof that
each such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Agreement or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Agent shall mail to all the Holders copies of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Agent of the materials to be mailed and of
payment, or provision for the payment, of the reasonable expenses of such
mailing.
50
SECTION 7.13. NO OBLIGATIONS OF AGENT.
Except to the extent otherwise provided in this Agreement or the Pledge
Agreement, the Agent assumes no obligations and shall not be subject to any
liability under this Agreement, the Pledge Agreement or any Purchase Contract in
respect of the obligations of the Holder of any Security thereunder. The Company
agrees, and each Holder of a Certificate, by his acceptance thereof, shall be
deemed to have agreed, that the Agent's execution of the Certificates on behalf
of the Holders shall be solely as agent and attorney-in-fact for the Holders,
and that the Agent shall have no obligation to perform such Purchase Contracts
on behalf of the Holders, except to the extent expressly provided in Article V
hereof.
SECTION 7.14. TAX COMPLIANCE.
(a) The Agent, on its own behalf and on behalf of the Company, will
comply with all applicable certification, information reporting and withholding
(including "backup" withholding) requirements imposed by applicable tax laws,
regulations or administrative practice with respect to (i) any payments made
with respect to the Securities or (ii) the issuance, delivery, holding,
transfer, redemption or exercise of rights under the Securities. Such compliance
shall include, without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
(b) The Agent shall comply with any written direction received from
the Company with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 7.1(a)(2) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available, on
written 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
51
(d) to make provision with respect to the rights of Holders pursuant to
the requirements of Section 5.6(b); 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.
SECTION 8.2. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority of the
outstanding Purchase Contracts voting together as one class, by Act of said
Holders delivered to the Company and the Agent, the Company, when authorized by
a Board Resolution, and the Agent may enter into an agreement or agreements
supplemental hereto for the purpose of modifying in any manner the terms of the
Purchase Contracts, or the provisions of this Agreement or the rights of the
Holders in respect of the Securities; provided, however, that, except as
contemplated herein, no such supplemental agreement shall, without the consent
of the Holder of each Outstanding Security affected thereby,
(a) change any Payment Date;
(b) change the amount or the type of Collateral required to be Pledged
to secure a Holder's Obligations under the Purchase Contract, impair the right
of the Holder of any Purchase Contract to receive distributions on the related
Collateral (except for the rights of Holders of Type A Securities to substitute
the Treasury Securities for the Pledged Debentures or the rights of holders of
Type B Securities to substitute Debentures for the Pledged Treasury Securities)
or otherwise adversely affect the Holder's rights in or to such Collateral or
adversely alter the rights in or to such Collateral;
(c) reduce any Contract Adjustment Payment or any Deferred Contract
Adjustment Payment, or change any place where, or the coin or currency in which,
any Contract Adjustment Payment is payable;
(d) impair the right to institute suit for the enforcement of any
Purchase Contract;
(e) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the Purchase
Contract Settlement Date or the right to Early Settlement or otherwise adversely
affect the Holder's rights under any Purchase Contract; or
(f) reduce the percentage of the outstanding Purchase Contracts the
consent of whose Holders is required for any such supplemental agreement;
provided, that if any amendment or proposal referred to above would adversely
affect only the Type A Securities or the Type B Securities, then only the
Holders of the affected class of Security as of the record date for the Holders
entitled to vote thereon will be entitled to vote on
52
or consent to such amendment or proposal, and such amendment or proposal shall
not be effective except with the consent of Holders of not less than a majority
of such class; provided further, however, that no such agreement, whether with
or without the consent of Holders, shall affect Section 3.16 hereof.
It shall not be necessary for any Act of the Holders under this Section
to approve the particular form of any proposed supplemental agreement, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 8.3. EXECUTION OF SUPPLEMENTAL AGREEMENTS.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Agent shall be entitled to receive
and (subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Agreement. The Agent may, but shall not be
obligated to, enter into any such supplemental agreement which affects the
Agent's own rights, duties or immunities under this Agreement or otherwise.
SECTION 8.4. EFFECT OF SUPPLEMENTAL AGREEMENTS.
Upon the execution of any supplemental agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Certificates theretofore or thereafter authenticated, executed on behalf of
the Holders and delivered hereunder shall be bound thereby.
SECTION 8.5. REFERENCE TO SUPPLEMENTAL AGREEMENTS.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Agent, bear a notation in form
approved by the Agent as to any matter provided for in such supplemental
agreement. If the Company shall so determine, new Certificates so modified as to
conform, in the opinion of the Agent and the Company, to any such supplemental
agreement may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Agent in exchange for
Outstanding Certificates.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY PROPERTY
EXCEPT UNDER CERTAIN CONDITIONS.
The Company covenants that it will not merge or consolidate with any
other Person or sell, assign, transfer, lease or convey all or substantially all
of its properties and assets to any Person or group of affiliated Persons in one
transaction or a series of related transactions, unless (i) either the Company
shall be the continuing entity, or the successor (if other than the Company)
shall be a Person, other than an individual, organized and existing under the
laws of the United States of America or a State thereof or the District of
Columbia and such entity shall
53
expressly assume all the obligations of the Company under the Purchase
Contracts, the Debentures, this Agreement and the Pledge Agreement by one or
more supplemental agreements in form reasonably satisfactory to the Agent and
the Collateral Agent, executed and delivered to the Agent and the Collateral
Agent by such entity, and (ii) the Company or such successor entity, as the case
may be, shall not, immediately after such merger or consolidation, or such sale,
assignment, transfer, lease or conveyance, be in default in its payment
obligations or in any material default in the performance of any of its other
obligations hereunder, or under any of the Securities or the Pledge Agreement.
SECTION 9.2. RIGHTS AND DUTIES OF SUCCESSOR ENTITY.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance and upon any such assumption by a successor entity in
accordance with Section 9.1, such successor entity shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the Company. Such successor entity thereupon may cause to be signed, and may
issue either in its own name or in the name of FPL Group, Inc. any or all of the
Certificates evidencing Securities issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Agent; and, upon the
order of such successor corporation, instead of the Company, and subject to all
the terms, conditions and limitations in this Agreement prescribed, the Agent
shall authenticate and execute on behalf of the Holders and deliver any
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Agent for authentication and execution, and any
Certificate evidencing Securities which such successor entity thereafter shall
cause to be signed and delivered to the Agent for that purpose. All the
Certificates so issued shall in all respects have the same legal rank and
benefit under this Agreement as the Certificates theretofore or thereafter
issued in accordance with the terms of this Agreement as though all of such
Certificates had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance such change in phraseology and form (but not in substance)
may be made in the Certificates evidencing Securities thereafter to be issued as
may be appropriate.
SECTION 9.3. OPINION OF COUNSEL GIVEN TO AGENT.
The Agent, subject to Sections 7.1 and 7.3, shall receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale,
assignment, transfer, lease or conveyance, and any such assumption, complies
with the provisions of this Article and that all conditions precedent to the
consummation of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance have been met.
ARTICLE X
COVENANTS
SECTION 10.1. PERFORMANCE UNDER PURCHASE CONTRACTS.
The Company covenants and agrees for the benefit of the Holders from
time to time of the Securities that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
54
SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The City of New
York an office or agency where Certificates may be presented or surrendered for
acquisition of shares of Common Stock upon settlement of the Purchase Contracts
on the Purchase Contract Settlement Date or Early Settlement and for transfer of
Collateral upon occurrence of a Termination Event, where Certificates may be
surrendered for registration of transfer or exchange, for a Collateral
Substitution or reestablishment of a Type A Security and where notices and
demands to or upon the Company in respect of the Securities and this Agreement
may be served. The Company will give prompt written notice to the Agent of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Agent with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Company hereby appoints the Agent as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where Certificates may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, 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 Securities the
Corporate Trust Office and appoints the Agent at its Corporate Trust Office as
paying agent in such city.
SECTION 10.3. COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times prior to the Purchase Contract
Settlement Date reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock the full number of shares of Common
Stock issuable against tender of payment in respect of all Purchase Contracts
constituting a part of the Securities evidenced by Outstanding Certificates.
SECTION 10.4. COVENANTS AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock which may be
issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon such issuance, be
duly authorized, validly issued, fully paid and nonassessable.
55
ARTICLE XI
TRUST INDENTURE ACT
SECTION 11.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Agreement is subject to the provisions of the TIA that are
required or deemed to be part of this Agreement and shall, to the extent
applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Agreement limits,
qualifies or conflicts with the duties imposed by Section 310 to 317, inclusive,
of the TIA, such imposed duties shall control.
SECTION 11.2. LISTS OF HOLDERS OF SECURITIES.
(a) The Company shall furnish or cause to be furnished to the Agent (a)
semiannually, not later than ______ and _________ in each year, commencing
__________, a list, in such form as the Agent may reasonably require, of the
names and addresses of the Holders ("List of Holders") as of a date not more
than 15 days prior to the delivery thereof, and (b) at such other times as the
Agent may request in writing, within 30 days after the receipt by the Company of
any such request, a List of Holders as of a date not more than 15 days prior to
the time such list is furnished; provided that, the Company shall not be
obligated to provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders given to the Agent by the
Company. The Agent may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Agent shall comply with its obligations under Section 311(a) of
the TIA, subject to the provisions of Section 311(b) and Section 312(b) of the
TIA.
SECTION 11.3. REPORTS BY THE AGENT.
Not later than ___________ of each year, commencing ___________, the
Agent shall provide to the Holders such reports, if any, as are required by
Section 313(a) of the TIA in the form and in the manner provided by Section
313(a) of the TIA. Such reports shall be as of the preceding __________. The
Agent shall also comply with the requirements of Sections 313(b), (c) and (d) of
the TIA.
SECTION 11.4. PERIODIC REPORTS TO AGENT.
The Company shall provide to the Agent such documents, reports and
information as required by Section 314(a) (if any) and the compliance
certificate required by Section 314(a) of the TIA in the form, in the manner and
at the times required by Section 314(a) of the TIA.
SECTION 11.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Company shall provide to the Agent such evidence of compliance with
any conditions precedent provided for in this Agreement as and to the extent
required by Section 314(c) of the TIA. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) of the TIA may be given in the
form of a Company's Certificate. Any
56
opinion required to be given pursuant to
Section 314(c)(2) of the TIA may be given in the form of an Opinion of Counsel.
SECTION 11.6. DEFAULTS; WAIVER.
The Holders of a majority of the Outstanding Purchase Contracts voting
together as one class may, by vote or consent, on behalf of all of the Holders,
waive any past Default and its consequences, except a Default
(a) in the payment on any Security, or
(b) in respect of a provision hereof which under Section 8.2 cannot be
modified or amended without the consent of the Holder of each Outstanding
Security affected.
Upon such waiver, any such Default shall cease to exist, and any
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Agreement, but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
SECTION 11.7. AGENT'S KNOWLEDGE OF DEFAULTS.
The Agent shall not be deemed to have knowledge of any Default unless a
Responsible Officer charged with the administration of this Agreement shall have
obtained written notice of such Default.
SECTION 11.8. CONFLICTING INTERESTS.
The Indenture shall be deemed to be specifically described in this
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the TIA.
SECTION 11.9. DIRECTION OF AGENT.
Sections 315(d)(3) and 316(a)(1)(A) of the TIA are hereby expressly
excluded from this Agreement, as permitted by the TIA.
57
IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Contract Agreement to be duly executed as of the day and year first above
written.
FPL GROUP, INC.
By:____________________________
Name:
Title:
THE BANK OF NEW YORK, as
Purchase Contract Agent and
Trustee
By:____________________________
Name:
Title:
58
EXHIBIT A
FORM OF TYPE A CERTIFICATE
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
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 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.
No. _____
CUSIP No.
Number of Type A Securities _______
FPL GROUP, INC.
Form of Face of Type A Certificate
____% Type A Securities
This Type A Certificate certifies that ___________ is the registered
Holder of the number of Type A Securities set forth above. Each Type A Security
represents (a) a stock purchase contract (as modified and supplemented and in
effect from time to time, a "Purchase Contract") of FPL Group, Inc., a Florida
corporation (the "Company"), and (b) either (A) one _____ % Debenture due
____________ (the "Debenture") of FPL Group Capital Inc., a Florida corporation
("FPL Group Capital"), in an aggregate principal amount of $____, subject to the
Pledge of such Debenture by such Holder pursuant to the Pledge Agreement or (B)
following the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date, the Applicable Ownership Interest in the Treasury
Portfolio, subject to the Pledge of such Applicable Ownership Interest in the
Treasury Portfolio by such Holder pursuant to the Pledge Agreement. All
A-1
capitalized terms used herein without definition herein shall have the meaning
set forth in the Purchase Contract Agreement referred to below.
Pursuant to the Pledge Agreement, the Debenture and/or the appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case may be,
constituting part of each Type A Securities evidenced hereby have been pledged
to the Collateral Agent, for the benefit of the Company, to secure the
obligations of the Holder under the Purchase Contract comprising a portion of
such Type A Securities.
The Pledge Agreement provides that all payments of the principal amount
of Debentures or the Stated Amount of the appropriate Applicable Ownership
Interest (as specified in clause __ of the definition of such term) of the
Treasury Portfolio, as the case may be, or payments of interest on any Pledged
Debentures or the appropriate Pledged Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, constituting part of the Type A
Securities 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) payments of
interest with respect to Pledged Debentures or cash distributions on the
appropriate Pledged Applicable Ownership Interest (as specified in clause __ of
the definition of such term) of the Treasury Portfolio, as the case may be, and
(B) any payments of the principal amount of Debentures or the Stated Amount of
the appropriate Applicable Ownership Interest (as specified in clause __ of the
definition of such term) of the Treasury Portfolio, as the case may be, with
respect to any Debentures or the appropriate 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 2:00 p.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 12:30 p.m., New York City time, on a Business Day, then such
payment shall be made no later than 10:30 a.m., New York City time, on the next
succeeding Business Day) and (ii) in the case of payments of the principal
amount of Debentures or the Stated Amount of the appropriate Applicable
Ownership Interest (as specified in clause __ of the definition of such term) of
the Treasury Portfolio, as the case may be, of any Debentures or the appropriate
Applicable Ownership Interest (as specified in clause (__) of the definition of
such term) of the Treasury Portfolio, as the case may be, to the Company on the
Purchase Contract Settlement 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 Type A Securities of which such Pledged
Debentures or the Treasury Portfolio, as the case may be, are a part under the
Purchase Contracts forming a part of such Type A Securities. Payment of interest
on any Pledged Debenture or cash distribution on the appropriate Pledged
Applicable Ownership Interest (as specified in clause (__) of the definition of
such term) of the Treasury Portfolio, as the case may be, forming part of a Type
A Security evidenced hereby which are payable quarterly in arrears
on_____________ and ________ each year, commencing __________ (a "Payment
Date"), shall, subject to receipt thereof by the Agent from the Collateral
Agent, be paid to the Person in whose name this Type A Certificate (or a
Predecessor Type A Certificate) is registered at the close of business on the
Record Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Type A Certificate to purchase, and the Company to sell, on _________ (the
"Purchase Contract Settlement Date"), at a price of $____ in cash (the "Purchase
Price"), a number of shares of Common Stock, $0.01 par value ("Common Stock"),
A-2
of the Company equal to the Settlement Rate, unless on or prior to the Purchase
Contract Settlement Date there shall have occurred a Termination Event or an
Early Settlement with respect to the Type A Securities of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement and more
fully described on the reverse hereof.
The Company shall pay, on each Payment Date in respect of each Purchase
Contract forming part of a Type A Security evidenced hereby, an amount (the
"Contract Adjustment Payments") equal to ___% per annum 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 Purchase Contract
Agreement and more fully described on the reverse hereof. Such Contract
Adjustment Payments shall be payable to the Person in whose name this Type A
Certificate (or a Predecessor Type A Certificate) is registered at the close of
business on the Record Date for such Payment Date.
Payment of interest on the Debentures or cash distributions on the
appropriate Applicable Ownership Interest (as specified in clause ___ of the
definition of such term) in the Treasury Portfolio, as the case may be, and
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 Type A
Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Type A Certificate shall not be entitled to
any benefit under the Pledge Agreement or the Purchase Contract Agreement or be
valid or obligatory for any purpose.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
FPL GROUP, INC.
By:
-------------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under
the Purchase Contracts evidenced
hereby)
By:
-------------------------------
not individually but solely as
Attorney-in-Fact of such Holder
By:
-------------------------------
Name:
Title:
Dated:
-----------
A-4
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Type A Certificates referred to in the within
mentioned Purchase Contract Agreement.
By:
-------------------------------
as Purchase Contract Agent
By:
-------------------------------
Authorized Signatory
A-5
(FORM OF REVERSE OF TYPE A CERTIFICATE)
Unless the context otherwise requires, each provision of this Security
shall be part of the Purchase Contracts evidenced hereby. This Security and each
Purchase Contract evidenced hereby is governed by a Purchase Contract Agreement,
dated as of ____________ (as may be supplemented from time to time, the
"Purchase Contract Agreement"), between the Company and _____________, as
Purchase Contract Agent and trustee (including any successor thereunder, herein
called the "Agent"), to which the Purchase Contract Agreement and supplemental
agreements thereto reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Agent, the Company, and the Holders and of the terms upon which the Type A
Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Type A Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price"), a number of shares of Common Stock of the Company equal to the
Settlement Rate, unless, on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event or an Early Settlement with
respect to the Security of which such Purchase Contract is a part. The
"Settlement Rate" is equal to (a) if the Applicable Market Value (as defined
below) is equal to or greater than $_______ (the "Threshold Appreciation
Price"), _____ shares of Common Stock per Purchase Contract, (b) if the
Applicable Market Value is less than the Threshold Appreciation Price but is
greater than $______, the number of shares of Common Stock per Purchase Contract
equal to the Stated Amount divided by the Applicable Market Value and (c) if the
Applicable Market Amount is less than or equal to $_______, _____ shares of
Common Stock per Purchase Contract, in each case subject to adjustment as
provided in the Purchase Contract Agreement. No fractional shares of Common
Stock will be issued upon settlement of Purchase Contracts, as provided in the
Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of the
related Type A Securities to purchase at the Purchase Price, and the Company to
sell, a number of newly issued shares of Common Stock equal to the Early
Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Purchase Contract Settlement
Date. 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, 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
A-6
regional securities exchange or association or over-the-counter-market at the
close of business and (B) has traded at least once on the national or regional
securities exchange or association or over-the-counter-market that is the
primary market for the trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of the Type A Securities evidenced hereby shall pay, on the Purchase
Contract Settlement Date, the Purchase Price for the shares of Common Stock
purchased pursuant to each Purchase Contract evidenced hereby by effecting a
Cash Settlement or an Early Settlement. A Holder of Type A Securities who does
not make such payment in accordance with the Purchase Contract Agreement or who
does not notify the Agent of such Holder's intention, on or prior to 5:00 p.m.
New York City time on the fifth Business Day immediately preceding the Purchase
Contract Settlement Date, to make an effective Cash Settlement or an Early
Settlement, shall have defaulted in its obligations under applicable portion of
the related Purchase Contract and the Collateral Agent shall exercise its rights
as a secured creditor for the benefit of the Company under the Purchase Contract
Agreement and the Pledge Agreement and shall apply the Proceeds of the sale of
the related Pledged Debentures held by the Collateral Agent to satisfy the
Holder's obligations under such Purchase Contract to purchase Common Stock at
the Purchase Price.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment in full of the aggregate Purchase
Price for the shares of Common Stock to be purchased thereunder in the manner
set forth in the Purchase Contract Agreement.
Under the terms of the Pledge Agreement and the Purchase Contract
Agreement, the Agent will be entitled to exercise the voting and any other
consensual rights pertaining to the Pledged Debentures. Upon receipt of notice
of any meeting at which holders of Debentures are entitled to vote or upon the
solicitation of consents, waivers or proxies of holders of Debentures, the Agent
shall, as soon as practicable thereafter, mail to the Type A Security Holders a
notice containing such information as is contained in the notice or solicitation
(a) stating that each Type A Security 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 Debentures entitled to vote) shall be
entitled to instruct the Agent as to the exercise of the voting rights
pertaining to the Debentures constituting a part of such Holder's Type A
Securities and (b) stating the manner in which such instructions may be given.
Upon the written request of the Type A Security Holders on such record date, the
Agent shall endeavor insofar as practicable to vote or cause to be voted, in
accordance with the instructions set forth in such requests, the maximum number
of Debentures as to which any particular voting instructions are received. In
the absence of specific instructions from the Holder of a Type A Security, the
Agent shall abstain from voting the Debenture evidenced by such Type A
Securities.
Upon the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date, the Redemption Price payable on the Tax Event
Redemption Date with respect to the Applicable Principal Amount of Debentures
shall be delivered to the Collateral Agent in exchange for the Pledged
Debentures. Pursuant to the terms of the Pledge Agreement, the Collateral Agent
will apply an amount equal to the Redemption Amount of such Redemption Price to
purchase, on behalf of the Holders of Type A Securities the Treasury Portfolio
and promptly remit the remaining portion of such Redemption Price to the Agent
A-7
for payment to the Holders of such Type A Securities. The Treasury Portfolio
will be substituted for the Pledged Debentures, and will be held by the
Collateral Agent in accordance with the terms of the Pledge Agreement to secure
the obligation of each Holder of a Type A Security to purchase the Common Stock
of the Company on the Purchase Contract Settlement Date under the Purchase
Contract constituting a part of such Type A Security.
Following the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Holders of Type A Securities and the
Collateral Agent shall have such security interests, rights and obligations with
respect to the Treasury Portfolio as the Holder of Type A Securities and the
Collateral Agent had in respect of the Debentures, 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 to the Debentures shall be deemed to
be reference to such Treasury Portfolio. The Company may cause to be made in any
Type A Security Certificate therewith to be issued such change in phraseology
and form (but not in substance) as may be appropriate to reflect the
substituting on of the Treasury Portfolio for Debentures as Collateral.
The Type A Certificates are issuable only in registered form and only
in denominations of a single Type A Security and any integral multiple thereof.
The transfer of any Type A Certificate will be registered and Type A
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The Type A Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Purchase
Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. A Holder who elects to substitute Treasury
Securities for Debentures or the appropriate Applicable Ownership Interest in
the Treasury Portfolio, thereby creating Type B Securities, shall be responsible
for any fees or expenses payable in connection therewith. Except as provided in
the Purchase Contract Agreement, for so long as the Purchase Contract underlying
a Type A Security remains in effect, such Type A Security shall not be separable
into its constituent parts, and the rights and obligations of the Holder of such
Type A Security in respect of Debentures or the appropriate Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, and Purchase Contract
constituting such Type A Security may be transferred and exchanged only as a
Type A Security. The holder of any Type A Securities may substitute for the
Pledged Debentures or the appropriate Pledged Applicable Ownership Interest (as
specified in clause __ of the definition of such term) in the Treasury Portfolio
securing its obligation under the related Purchase Contract, Treasury Securities
in an aggregate principal amount equal to the aggregate principal amount of the
Pledged Debentures or the Stated Amount of the appropriate Pledged Applicable
Ownership Interest in the Treasury Portfolio in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement. From and after such
Collateral Substitution, the Security for which such Pledged Treasury Securities
secures the Holder's obligation under the Purchase Contract shall be referred to
as a "Type B Security." A Holder may make such Collateral Substitution only in
integral multiples of [20] Type A Securities for [20] Type B Securities;
provided, however, that if a Tax Event Redemption has occurred and the Treasury
Portfolio has become a component of the Type A Securities, a Holder may make
such Collateral Substitutions only in integral multiples of ___________ Type A
Securities for ___________ Type B Securities. Such Collateral Substitution may
cause the equivalent aggregate principal amount of this Certificate to be
A-8
increased or decreased; provided, however, the equivalent aggregate principal
amount outstanding under this Type A Certificate shall not exceed $_________.
All such adjustments to the equivalent aggregate principal amount of this Type A
Certificate shall be duly recorded by placing an appropriate notation on the
Schedule attached hereto.
A Holder of Type B Securities may create or recreate Type A Securities
by delivering to the Collateral Agent Debentures or the appropriate Applicable
Ownership Interest in the Treasury Portfolio, with a Stated Amount, in the case
of such Debentures, or with the appropriate Applicable Ownership Interest (as
specified in clause __ of the definition of such term) of the Treasury
Portfolio, in the case of such appropriate Applicable Ownership Interest in the
Treasury Portfolio, equal to the aggregate principal amount of the Pledged
Treasury Securities in exchange for the release of such Pledged Treasury
Securities in accordance with the terms of the Purchase Contract Agreement and
the Pledge Agreement.
Subject to the next succeeding paragraph, the Company shall pay, on
each Payment Date, the Contract Adjustment Payments payable in respect of each
Purchase Contract to the Person in whose name the Type A Certificate evidencing
such Purchase Contract is registered at the close of business on the Record Date
for such Payment Date. Contract Adjustment Payments will be payable at the
office of the Agent in 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 Type A Register.
The Company shall have the right, at any time prior to the Purchase
Contract Settlement 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 such payment (specifying the amount to be deferred) as provided in the
Purchase Contract Agreement. Any Contract Adjustment Payments so deferred shall
bear additional Contract Adjustment Payments thereon at the rate of ___ % per
annum (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, 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 Purchase Contract Agreement. No
Contract Adjustment Payments may be deferred to a date that is after the
Purchase Contract Settlement Date.
In the event that the Company elects to defer the payment of Contract
Adjustment Payments on the Purchase Contracts until the Purchase Contract
Settlement Date, the Holder of this Type A Certificate will receive on the
Purchase Contract Settlement Date, in lieu of a cash payment, a number of shares
of Common Stock equal to (x) the aggregate amount of Deferred Contract
Adjustment Payments payable to the Holder of this Type A Certificate divided by
(y) the Applicable Market Value.
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 capital stock or make guarantee
A-9
payments with respect to the foregoing (other than (i) purchases or acquisitions
of capital stock of the Company in connection with the satisfaction by the
Company of its obligations under any employee or agent benefit plans or the
satisfaction by the Company of its obligations pursuant to any contract or
security outstanding on the date of such event requiring the Company to purchase
its capital stock, (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 the Company's
capital stock pursuant to the conversion or exchange provisions of the Company's
capital stock or the security being converted or exchanged, (iv) dividends or
distributions in capital stock of the Company (or rights to acquire capital
stock) or repurchases or redemptions of capital stock solely from the issuance
or exchange of capital stock or (v) redemptions or repurchases of any rights
outstanding under a shareholder rights plan.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Contract
Adjustment Payments or any Deferred Contract Adjustment Payments, and the rights
and obligations 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 Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon the occurrence of
a Termination Event, the Company shall promptly but in no event later than two
Business Days thereafter give written notice to the Agent, the Collateral Agent
and to the Holders, at their addresses as they appear in the Type A Register.
Upon and after the occurrence of a Termination Event, the Collateral Agent shall
release the Debentures or the appropriate Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, forming a part of the Type A Securities
evidenced hereby from the Pledge in accordance with the provisions of the Pledge
Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, a Holder of Type A Securities may settle the related
Purchase Contracts in their entirety on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, but only in
integral multiples of ______ Type A Securities; provided, however, that if a Tax
Event Redemption has occurred and the Treasury Portfolio has become a component
of the Type A Securities, Holders may early settle Type A Securities on or prior
to the second Business Day immediately preceding the Purchase Contract
Settlement Date only in integral multiples of ___________ Type A Securities. In
order to exercise the right to effect any such early settlement ("Early
Settlement") with respect to any Purchase Contracts evidenced by this Type A
Certificate, the Holder of this Type A Certificate shall deliver this Type A
Certificate to the Agent at the Corporate Trust Office duly endorsed for
transfer to the Company or in blank with the form of Election to Settle Early
set forth below duly completed and accompanied by payment in the form of
immediately available funds payable to the order of the Company in an amount
(the "Early Settlement Amount") equal to the sum of (i) $_____ times the number
of Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement, plus (ii) if such delivery is made with respect to any
Purchase Contracts during the period from the close of business on any Record
Date for any Payment Date to the opening of business on such Payment Date, an
amount equal to the Contract Adjustment Payments payable, if any, on such
Payment Date with respect to such Purchase Contracts. Upon Early Settlement of
Purchase Contracts by a Holder of the related Securities, the Pledged Debentures
A-10
or the appropriate Pledged Applicable Ownership Interest in the Treasury
Portfolio underlying such Securities shall be released from the Pledge as
provided in the Pledge Agreement and the Holder shall be entitled to receive a
number of shares of Common Stock on account of each Purchase Contract forming
part of a Type A Security as to which Early Settlement is effected equal to the
Early Settlement Rate; provided however, that upon the Early Settlement of the
Purchase Contracts, the Holder thereof will forfeit the right to receive any
Deferred Contract Adjustment Payments, if any, on such Purchase Contracts. The
Early Settlement Rate shall initially be equal to ______ shares of Common Stock
and shall be adjusted in the same manner and at the same time as the Settlement
Rate is adjusted as provided in the Purchase Contract Agreement.
Upon registration of transfer of this Type A Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Type A
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 Type A Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Type A Securities evidenced hereby on his behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
its obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Pledge Agreement on its behalf as its attorney-in-fact, and consents to the
Pledge of the Debentures or the appropriate Pledged Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, underlying this Type A
Certificate pursuant to the Pledge Agreement. The Holder further covenants and
agrees, that, to the extent and in the manner provided in the Purchase Contract
Agreement and the Pledge Agreement, but subject to the terms thereof, payments
in respect to the principal amount of the Pledged Debentures, or the Stated
Amount of the appropriate Applicable Ownership Interest (as specified in clause
__ of the definition of such term) of the Treasury Portfolio, on the Purchase
Contract Settlement Date shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Purchase Contract and such
Holder shall acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts. In addition, certain amendments to the Purchase Contract
Agreement may be made without any consent of the Holders as provided in the
Purchase Contract Agreement.
THE 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 CONFLICTS OF LAWS PRINCIPLES THEREUNDER, EXCEPT TO THE EXTENT THAT THE LAWS
A-11
OF ANY OTHER JURISDICTION SHALL BE MANDATORILY APPLICABLE.
The Company and the Agent and any agent of the Company or the Agent may
treat the Person in whose name this Type A Certificate is registered on the Type
A Register as the owner of the Type A Securities evidenced hereby for the
purpose of receiving payments of interest payable quarterly on the Debentures,
receiving payments of Contract Adjustment Payments and any Deferred Contract
Adjustment Payments, performance of the Purchase Contracts and for all other
purposes whatsoever, whether or not any payments in respect thereof be overdue
and notwithstanding any notice to the contrary, and neither the Company, the
Agent nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof in
accordance with the Purchase Contract Agreement, entitle the Holder to any of
the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Agent.
A-12
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.
-------------------------
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 Type A Certificates and all rights thereunder, hereby irrevocably
constituting and appointing
--------------------------------------------------------------------------------
attorney to transfer said Type A Certificates on the books of FPL Group, 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 Type A Certificates in
every particular, without alteration or
enlargement or any change whatsoever.
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.
A-13
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Type A Securities
evidenced by this Type A 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:
---------------
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.
If shares are to be registered in REGISTERED HOLDER
the name of and delivered to a
Person other than the Holder,
please (i) print such Person's name
and address and (ii) provide a
guarantee of your signature:
Please print name and address of Registered Holder:
----------------------------------- -----------------------------------
Name Name
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
Address Address
--------------------------------------------------------------------------------
Social Security or other Taxpayer Identification Number, if any
A-14
ELECTION TO SETTLE EARLY
The undersigned Holder of this Type A Certificate hereby irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Type A Securities evidenced by this Type A Certificate
specified below. The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon such Early Settlement be registered in the name
of, and delivered, together with a check in payment for any fractional share and
any Type A Certificate representing any Type A Securities evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Debentures or the appropriate 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:
---------------
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.
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock or Type A
Certificates are to be registered
in the name of and delivered to and
Pledged Debentures, or the Treasury
Portfolio, as the case may be, are
to be transferred to a Person other REGISTERED HOLDER
than the Holder, please print
such Person's name and address:
Please print name and address of Registered Holder:
----------------------------------- -----------------------------------
Name Name
----------------------------------- -----------------------------------
Address Address
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
--------------------------------------------------------------------------------
Social Security or other Taxpayer Identification Number, if any
Transfer Instructions for Pledged Debentures, or the Treasury Portfolio, as the
case may be, Transferable Upon Early Settlement or a Termination Event:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A-15
[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:
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
PRINCIPAL AMOUNT OF
AMOUNT OF DECREASE AMOUNT OF INCREASE THIS GLOBAL SIGNATURE OF
IN PRINCIPAL AMOUNT IN PRINCIPAL AMOUNT CERTIFICATE AUTHORIZED OFFICER
OF THE GLOBAL OF THE GLOBAL FOLLOWING SUCH OF TRUSTEE OR
DATE CERTIFICATE CERTIFICATE DECREASE OR INCREASE SECURITIES CUSTODIAN
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A-16
EXHIBIT B
FORM OF TYPE B CERTIFICATE
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
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 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.
No. _____
CUSIP No.
Number of Type B Securities _______
FPL GROUP, INC.
Form of Face of Type B Certificate
This Type B Certificate certifies that ___________ is the registered
Holder of the number of Type B Securities set forth above. Each Type B Security
represents (a) a stock purchase contract (as modified and supplemented and in
effect from time to time, a "Purchase Contract") of FPL Group, Inc., a Florida
corporation (the "Company"), and (b) a [1/20] undivided beneficial ownership
interest of a Treasury Security having a principal amount at maturity equal to
[$1,000], subject to the Pledge of such Treasury Security by such Holder
pursuant to the Pledge Agreement. All capitalized terms used herein without
definition herein shall have the meaning set forth in the Purchase Contract
Agreement referred to below.
Pursuant to the Pledge Agreement, the Treasury Securities constituting
part of each Type B Securities evidenced hereby have been pledged to the
Collateral Agent, for the benefit of the Company, to secure the obligations of
the Holder under the Purchase Contract comprising a portion of such Type B
Securities.
B-1
The Pledge Agreement provides that all payments of the principal of any
Treasury Securities received by the Collateral Agent shall be paid by the
Collateral Agent by wire transfer in same day funds (i) in the case of any
principal payments with respect to any Treasury Securities that have been
released from the Pledge pursuant to the Pledge Agreement, to the Holders of the
applicable Type B Securities to the accounts designated by them in writing for
such purpose no later than 2:00 p.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 12:30 p.m., New York City time, on a Business Day, then such
payment shall be made no later than 10:30 a.m., New York City time, on the next
succeeding Business Day) and (ii) in the case of the principal of any Pledged
Treasury Securities, to the Company on the Purchase Contract Settlement 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 Type B
Securities of which such Pledged Treasury Securities are a part under the
Purchaser Contracts forming a part of such Type B Securities.
Each Purchase Contract evidenced hereby obligates the Holder of this
Type B Certificate to purchase, and the Company to sell, on _________ (the
"Purchase Contract Settlement Date"), at a price of $____ (the "Stated Amount"),
a number of shares of Common Stock, $0.01 par value ("Common Stock"), of the
Company equal to the Settlement Rate, unless on or prior to the Purchase
Contract Settlement Date there shall have occurred a Termination Event or an
Early Settlement with respect to the Type B Securities of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement and more
fully described on the reverse hereof.
The Company shall pay on each Payment Date in respect of each Purchase
Contract forming part of a Type B Security evidenced hereby an amount (the
"Contract Adjustment Payments") equal to ___% per annum 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 Purchase Contract
Agreement and more fully described on the reverse hereof. Such Contract
Adjustment Payments shall be payable to the Person in whose name this Type B
Certificate (or a Predecessor Type B 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 Type B
Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Type B Certificate shall not be entitled to
any benefit under the Pledge Agreement or the Purchase Contract Agreement or be
valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
FPL GROUP, INC.
By:
-----------------------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts evidenced hereby)
By:
-----------------------------------------
not individually but solely as
Attorney-in-Fact of such Holder
By:
-----------------------------------------
Name:
Title:
Dated:
----------
B-3
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Type B Certificates referred to in the within
mentioned Purchase Contract Agreement.
By:
-----------------------------------------
as Purchase Contract Agent
By:
-----------------------------------------
Authorized Signatory
B-4
(FORM OF REVERSE OF TYPE B CERTIFICATE)
Unless the context otherwise requires, each provision of this Security
shall be part of the Purchase Contracts evidenced hereby. This Security and each
Purchase Contract evidenced hereby is governed by a Purchase Contract Agreement,
dated as of ____________ (as may be supplemented from time to time, the
"Purchase Contract Agreement"), between the Company and _____________, as
Purchase Contract Agent and trustee (including any successor thereunder, herein
called the "Agent"), to which the Purchase Contract Agreement and supplemental
agreements thereto reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Agent, the Company, and the Holders and of the terms upon which the Type B
Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Type B Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price") a number of shares of Common Stock of the Company equal to the
Settlement Rate, unless, on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event or an Early Settlement with
respect to the Security of which such Purchase Contract is a part. The
"Settlement Rate" is equal to (a) if the Applicable Market Value (as defined
below) is equal to or greater than $_______ (the "Threshold Appreciation
Price"), _____ shares of Common Stock per Purchase Contract, (b) if the
Applicable Market Value is less than the Threshold Appreciation Price but is
greater than $______, the number of shares of Common Stock per Purchase Contract
equal to the Stated Amount divided by the Applicable Market Value and (c) if the
Applicable Market Amount is less than or equal to $_______, _____ shares of
Common Stock per Purchase Contract, in each case subject to adjustment as
provided in the Purchase Contract Agreement. No fractional shares of Common
Stock will be issued upon settlement of Purchase Contracts, as provided in the
Purchase Contract Agreement.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Purchase Contract Settlement
Date. 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, 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.
B-5
In accordance with the terms of the Purchase Contract Agreement, the
Holder of the Type B Securities evidenced hereby shall pay, on the Purchase
Contract Settlement Date, the Purchase Price for the shares of Common Stock
purchased pursuant to each Purchase Contract evidenced hereby by effecting
either an Early Settlement of each such Purchase Contract or by applying a
principal amount of the Pledged Treasury Securities underlying such Holder's
Type B Securities equal to the Stated Amount of such Purchase Contract to the
purchase of the Common Stock. A Holder of Type B Securities who does not make
such payment in accordance with the Purchase Contract Agreement or who does not
notify the Agent of such Holder's intention, on or prior to 5:00 p.m. New York
City time on the second Business Day immediately preceding the Purchase Contract
Settlement Date, to make an effective Cash Settlement or an Early Settlement,
shall have defaulted in its obligations under the applicable portion of the
related Purchase Contract, and the Collateral Agent shall exercise its rights as
a secured creditor for the benefit of the Company under the Purchase Contract
Agreement and the Pledge Agreement and shall apply the principal amount at
maturity of the related Pledged Treasury Securities held by the Collateral Agent
to the Purchase Price of the Common Stock on the Purchase Contract Settlement
Date.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment in full of the aggregate Purchase
Price for the shares of Common Stock to be purchased thereunder in the manner
set forth in the Purchase Contract Agreement.
The Type B Certificates are issuable only in registered form and only
in denominations of a single Type B Security and any integral multiple thereof.
The transfer of any Type B Certificate will be registered and Type B
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The Type B Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Purchase
Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable associated therewith. A Holder who elects to substitute Debentures or
the appropriate Applicable Ownership Interest in the Treasury Portfolio, as the
case may be, for Treasury Securities, thereby recreating Type A Securities,
shall be responsible for any fees or expenses associated therewith. Except as
provided in the Purchase Contract Agreement, for so long as the Purchase
Contract underlying a Type B Security remains in effect, such Type B Security
shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Type B Security in respect of the Treasury
Security and the Purchase Contract constituting such Type B Security may be
transferred and exchanged only as a Type B Security.
A Holder of a Type B Security may create or recreate a Type A Security
by depositing with the Collateral Agent Debentures or the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, in an
aggregate principal amount in the case of Debentures, or an aggregate Stated
Amount of the appropriate Applicable Ownership Interest (as specified in clause
__ of the definition of such term) in the Treasury Portfolio, as the case may
be, equal to the aggregate principal amount of the Pledged Treasury Securities
comprising part of the Type B Security, in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement. Any such recreation of a
Type B Security may be effected only in integral multiples of [20] Type B
Securities for [20] Type A Securities; provided, however, if a Tax Event
B-6
Redemption has occurred and the Treasury Portfolio has become a component of the
Type A Securities, a Holder may make such Collateral Substitution in integral
multiples of [20] Type B Securities for [20] Type A Securities. From and after
such substitution, the Holder's Security shall be referred to as a "Type A
Security." Such substitution may cause the equivalent aggregate principal amount
of this Certificate to be increased or decreased; provided, however, the
equivalent aggregate principal amount outstanding under this Type B Certificate
shall not exceed $__________. All such adjustments to the equivalent aggregate
principal amount of this Type B Certificate shall be duly recorded by placing an
appropriate notation on the Schedule attached hereto.
Subject to the next succeeding paragraph, the Company shall pay, on
each Payment Date, the Contract Adjustment Payments payable in respect of each
Purchase Contract to the Person in whose name the Type B Certificate evidencing
such Purchase Contract is registered at the close of business on the Record Date
for such Payment Date. Contract Adjustment Payments will be payable at the
office of the Agent in 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 Type B Register.
The Company shall have the right, at any time prior to the Purchase
Contract Settlement 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 such payment (specifying the amount to be deferred) as provided in the
Purchase Contract Agreement. Any Contract Adjustment Payments so deferred shall
bear additional Contract Adjustment Payments thereon at the rate of ___% per
annum (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, 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 Purchase Contract Agreement. No
Contract Adjustment Payments may be deferred to a date that is after the
Purchase Contract Settlement Date.
In the event that the Company elects to defer the payment of Contract
Adjustment Payments on the Purchase Contracts until the Purchase Contract
Settlement Date, the Holder of this Type B Certificate will receive on the
Purchase Contract Settlement Date, in lieu of a cash payment, a number of shares
of Common Stock equal to (x) the aggregate amount of Deferred Contract
Adjustment Payments payable to the Holder of this Type B Certificate divided by
(y) the Applicable Market Value.
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 capital stock or make guarantee
payments with respect to the foregoing (other than (i) purchases or acquisitions
of capital stock of the Company in connection with the satisfaction by the
Company of its obligations under any employee or agent benefit plans or the
satisfaction by the Company of its obligations pursuant to any contract or
security outstanding on the date of such event requiring the Company to purchase
B-7
its capital stock, (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 the Company's
capital stock pursuant to the conversion or exchange provisions of the Company's
capital stock or the security being converted or exchanged, (iv) dividends or
distributions in capital stock of the Company (or rights to acquire capital
stock) or repurchases or redemptions of capital stock solely from the issuance
or exchange of capital stock or (v) redemptions or repurchases of any rights
outstanding under a shareholder rights plan.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Contract
Adjustment Payments or any Deferred Contract Adjustment Payments, and the rights
and obligations 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 Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon the occurrence of
a Termination Event, the Company shall promptly but in no event later than two
Business Days thereafter give written notice to the Agent, the Collateral Agent
and to the Holders, at their addresses as they appear in the Type B Register.
Upon and after the occurrence of a Termination Event, the Collateral Agent shall
release the Treasury Securities from the Pledge in accordance with the
provisions of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, a Holder of Type B Securities may settle the related
Purchase Contracts in their entirety on or prior to the second Business Day
immediately preceding the Purchase Contract Settlement Date, but only in
integral multiples of _____ Type B Securities. In order to exercise the right to
effect any such early settlement ("Early Settlement") with respect to any
Purchase Contracts evidenced by this Type B Certificate, the Holder of this Type
B Certificate shall deliver this Type B Certificate to the Agent at the
Corporate Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early set forth below duly completed and
accompanied by payment in the form of immediately available funds payable to the
order of the Company in an amount (the "Early Settlement Amount") equal to the
sum of (i) $_____ times the number of Purchase Contracts with respect to which
the Holder has elected to effect Early Settlement, plus (ii) if such delivery is
made with respect to any Purchase Contracts during the period from the close of
business on any Record Date for any Payment Date to the opening of business on
such Payment Date, an amount equal to the Contract Adjustment Payments payable,
if any, on such Payment Date with respect to such Purchase Contracts. Upon Early
Settlement of Purchase Contracts by a Holder of the related Securities, the
Pledged Treasury Securities underlying such Securities shall be released from
the Pledge as provided in the Pledge Agreement and the Holder shall be entitled
to receive a number of shares of Common Stock on account of each Purchase
Contract forming part of a Type B Security as to which Early Settlement is
effected equal to the Early Settlement Rate; provided however, that upon the
Early Settlement of the Purchase Contracts, the Holder thereof will forfeit the
right to receive any Deferred Contract Adjustment Payments on such Purchase
Contracts. The Early Settlement Rate shall initially be equal to _____ shares of
Common Stock and be adjusted in the same manner and at the same time as the
B-8
Settlement Rate is adjusted as provided in the Purchase Contract Agreement.
Upon registration of transfer of this Type B Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Type B
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 Type B Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Type B Securities evidenced hereby on his behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
its obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Pledge Agreement on its behalf as its attorney-in-fact, and consents to the
Pledge of the Treasury Securities underlying this Type B Certificate pursuant to
the Pledge Agreement. The Holder further covenants and agrees, that, to the
extent and in the manner provided in the Purchase Contract Agreement and the
Pledge Agreement, but subject to the terms thereof, payments in respect to the
Stated Amount of the Pledged Treasury Securities on the Purchase Contract
Settlement Date shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Purchase Contract and such
Holder shall acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts. In addition, certain amendments to the Purchase Contract
Agreement may be made without any consent of the Holders as provided in the
Purchase Contract Agreement.
THE 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 CONFLICTS OF LAWS PRINCIPLES THEREUNDER, EXCEPT TO THE EXTENT THAT THE LAWS
OF ANY OTHER JURISDICTION SHALL BE MANDATORILY APPLICABLE.
The Company and the Agent and any agent of the Company or the Agent may
treat the Person in whose name this Type B Certificate is registered on the Type
B Register as the owner of the Type B Securities evidenced hereby for the
purpose of receiving payments of interest on the Treasury Securities, receiving
payments of Contract Adjustment Payments and any Deferred Contract Adjustment
Payments, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the Agent
nor any such agent shall be affected by notice to the contrary.
B-9
The Purchase Contracts shall not, prior to the settlement thereof, in
accordance with the Purchase Contract Agreement, entitle the Holder to any of
the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Agent.
B-10
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.
-------------------------
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 Type B Certificates and all rights thereunder, hereby irrevocably
constituting and appointing
--------------------------------------------------------------------------------
attorney to transfer said Type B Certificates on the books of FPL Group, 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 Type B Certificates in
every particular, without
alteration or enlargement or any
change whatsoever.
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.
B-11
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Type B Securities
evidenced by this Type B 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:
---------------
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.
If shares are to be registered in REGISTERED HOLDER
the name of anddelivered to a
Person other than the Holder, please
(i) print such Person's name and
address and (ii) provide a guarantee
of your signature:
Please print name and address of Registered Holder:
----------------------------------- -----------------------------------
Name Name
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
Address Address
--------------------------------------------------------------------------------
Social Security or other Taxpayer Identification Number, if any
B-12
ELECTION TO SETTLE EARLY
The undersigned Holder of this Type B Certificate hereby irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Type B Securities evidenced by this Type B Certificate
specified below. The option to effect Early Settlement may be exercised only
with respect to Purchase Contracts underlying Type B Securities with an
aggregate Stated Amount equal to [$1,000] or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Type B Certificate representing any Type B Securities evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Treasury Securities deliverable upon such
Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated:
----------------------------- -----------------------------------
Signature
Signature Guarantee:
---------------
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.
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock or Type B
Certificates are to be registered
in the name of and delivered to and
Pledged Treasury Securities are to
be transferred to a Person other
than the Holder, please print such REGISTERED HOLDER
Person's name and address:
Please print name and address of Registered Holder:
----------------------------------- -----------------------------------
Name Name
----------------------------------- -----------------------------------
Address Address
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
--------------------------------------------------------------------------------
Social Security or other Taxpayer Identification Number, if any
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement or a Termination Event:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
B-13
[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:
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
PRINCIPAL AMOUNT OF
AMOUNT OF DECREASE AMOUNT OF INCREASE THIS GLOBAL SIGNATURE OF
IN PRINCIPAL AMOUNT IN PRINCIPAL AMOUNT CERTIFICATE AUTHORIZED OFFICER
OF THE GLOBAL OF THE GLOBAL FOLLOWING SUCH OF TRUSTEE OR
DATE CERTIFICATE CERTIFICATE DECREASE OR INCREASE SECURITIES CUSTODIAN
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B-14
EXHIBIT C
NOTICE TO SETTLE BY SEPARATE CASH
Attention:____________________
Re: Securities of FPL Group, Inc. (the "Company")
The undersigned Holder hereby irrevocably notifies you in
accordance with Section 5.4 of the Purchase Contract Agreement, dated as of
______ ___, _____________ among the Company, yourselves, as Purchase Contract
Agent and as Attorney-in-Fact for the Holders of the Purchase Contracts, that
such Holder has elected to pay to the Collateral Agent, on or prior to 11:00
a.m. New York City time, on the Business Day immediately preceding the Purchase
Contract Settlement Date, (in lawful money of the United States by [certified or
cashiers check or] wire transfer, in each case in immediately available funds),
$_________ as the Purchase Price for the shares of Common Stock issuable to such
Holder by the Company under the related Purchase Contract on the Purchase
Contract Settlement Date. The undersigned Holder hereby instructs you to notify
promptly the Collateral Agent of the undersigned Holder's election to make such
cash settlement with respect to the Purchase Contracts related to such Holder's
[Type A Securities] [Type B Securities].
Dated: By:
----------------------------- -------------------------------
Name:
Title:
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:
Name Social Security or other Taxpayer
----------------------------------------- Identification Number, if any
Address
-------------------------------------
--------------------------------------------- ---------------------------------
---------------------------------------------
C-1
