Exhibit H
THE SOUTHERN COMPANY
AND
THE FIRST NATIONAL BANK OF CHICAGO,
as Unit Agent
MASTER UNIT AGREEMENT
Dated as of July o, 1999
TABLE OF CONTENTS
Page
RECITALS.................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONSOF GENERAL APPLICATION
SECTION 101.Definitions..................................1
SECTION 102.Compliance Certificates and Opinions.........8
SECTION 103.Form of Documents Delivered to Unit Agent....8
SECTION 104.Acts of Holders; Record Dates................9
SECTION 105.Notices, etc. to Unit Agent and the Company.10
SECTION 106.Notice to Holders; Waiver...................11
SECTION 107.Effect of Headings and Table of Contents....11
SECTION 108.Successors and Assigns......................12
SECTION 109.Separability Clause.........................12
SECTION 110.Benefits of Agreement.......................12
SECTION 111.Governing Law...............................12
SECTION 000.Xxxxx Holidays..............................12
SECTION 113.Counterparts................................13
SECTION 114.Inspection of Agreement.....................13
ARTICLE TWOUNIT CERTIFICATE FORMS
SECTION 201.Forms of Unit Certificates Generally........13
SECTION 202.Form of Unit Agent's Certificate of Authentication 14
ARTICLE THREETHE UNITS
SECTION 301.Title and Terms; Denominations..............14
SECTION 302.Rights and Obligations Evidenced by the Unit Certificates 14
SECTION 303.Execution, Authentication, Delivery and Dating 15
SECTION 304.Temporary Unit Certificates.................16
SECTION 305.Registration; Registration of Transfer and Exchange 16
SECTION 306.Mutilated, Destroyed, Lost and Stolen Unit Certificates 18
SECTION 307.Persons Deemed Owners.......................20
SECTION 308.Cancellation................................20
SECTION 309.Substitution of Pledged Securities and Creation of Stripped
Units;
Normal Units Not Otherwise Separable..21
Section 310.Substitution of Pledged Securities and Recreation of Normal
Units;
Stripped Units .......................22
SECTION 311.Payments on the Units.......................23
ARTICLE FOURTHE PLEDGED SECURITIES
SECTION 401.Payments on the Pledged Securities..........24
SECTION 402.Transfer of Pledged Securities upon Occurrence of TerminationEvent
24
ARTICLE FIVETHE PURCHASE CONTRACTS
SECTION 501.Purchase of Shares of Common Stock..........25
SECTION 502.Contract Fees...............................26
SECTION 503.Deferral of Payment Dates for Contract Fee..27
SECTION 504.Payment of Purchase Price...................28
SECTION 505.Issuance of Shares of Common Stock..........28
SECTION 506.Adjustment of Settlement Rate...............29
SECTION 507. Notice of Adjustments and Certain Other Events 33
SECTION 000.Xx Fractional Shares........................34
SECTION 509.Charges and Taxes...........................35
SECTION 510.Termination Event; Notice...................35
SECTION 511.Early Settlement Right on Reorganization Event 35
ARTICLE SIXREMEDIES
SECTION 601.Unconditional Rights of Holders.............37
SECTION 602.Restoration of Rights and Remedies..........37
SECTION 603.Rights and Remedies Cumulative..............37
SECTION 604.Delay or Omission Not Waiver................38
SECTION 605.Undertaking for Costs.......................38
SECTION 606.Waiver of Stay or Extension Laws............38
ARTICLE SEVENTHE UNIT AGENT
SECTION 701.Certain Duties and Responsibilities.........39
SECTION 702.Notice of Default...........................40
SECTION 703.Certain Rights of Unit Agent................40
SECTION704. Not Responsible for Recitals or Issuance of Xxxxx 00
XXXXXXX000. May Hold Units.............................41
SECTION706. Money Held in Trust........................41
SECTION707. Compensation and Reimbursement.............41
SECTION708. Corporate Unit Agent Required; Eligibility.42
SECTION709. Resignation and Removal; Appointment of Successor 42
SECTION710. Acceptance of Appointment by Successor.....44
SECTION711. Merger, Conversion, Consolidation or Succession to Business
44
SECTION712. Preservation of Information; Communications to Holders 44
SECTION713. No Obligations of Unit Agent...............45
SECTION714. Tax Compliance.............................45
ARTICLE EIGHTSUPPLEMENTAL AGREEMENTS
SECTION801. Supplemental Agreements without Consent of Holders 46
SECTION802. Supplemental Agreements with Consent of Holders 46
SECTION803. Execution of Supplemental Agreements.......48
SECTION804. Effect of Supplemental Agreements..........48
SECTION805. Reference to Supplemental Agreements.......48
ARTICLE NINECONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION901. Covenant Not to Merge, Consolidate, Sell or Convey PropertyExcept
under Certain Conditions................................49
SECTION902. Rights and Duties of Successor Corporation.49
SECTION903. Opinion of Counsel to Unit Agent...........50
ARTICLE TENCOVENANTS
SECTION1001. Performance under Purchase Contracts......50
SECTION1002. Maintenance of Office or Agency...........50
SECTION1003. Company to Reserve Common Stock...........51
SECTION1004. Covenants as to Common Stock..............51
SECTION1005. Statements of Officers of the Company as to Default 51
EXHIBIT A Form of Normal Unit Certificate
EXHIBIT B Form of Stripped Unit Certificate
EXHIBIT C Form of Pledge Agreement
MASTER UNIT AGREEMENT, dated as of July o, 1999, between The Southern
Company, a Delaware corporation (the "Company"), and The First National Bank of
Chicago, a national banking corporation, acting as unit agent for the Holders of
Units from time to time (the "Unit Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Unit Certificates evidencing the Units.
All things necessary to make the Company's obligations under the Units,
when the Unit Certificates are executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Unit Agent, as in this
Agreement provided, the valid obligations of the Company, and to constitute
these presents a valid agreement of the Company, in accordance with its terms,
have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the Units
by the Holders thereof, it is mutually agreed as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 11. 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
(b) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"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.
"Aggregate Market Capitalization" has the meaning specified in Section
506(a).
"Applicable Market Value" has the meaning specified in Section 501.
"Board of Directors" means the board of directors of the Company or a
duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification and delivered
to the Unit Agent.
"Business Day" means any day other than Saturday, Sunday or any other
day on which banking institutions in The City of New York are authorized or
obligated by law or executive order to be closed.
"Closing Price" has the meaning specified in Section 501.
"Collateral Agent" means The Chase Manhattan Bank, as Collateral Agent
under the Pledge Agreement, until a successor Collateral Agent shall have become
such pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Collateral Agent" shall mean the Person who is then the Collateral
Agent thereunder.
"Common Stock" means the Common Stock, par value $1.00 per share, of
the Company having such terms as set forth in the Company's certificate of
incorporation, as amended from time to time.
"Company" means the Person designated as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Contract Fee" means, with respect to each Purchase Contract, a fee
payable by the Company to the Holder of the related Unit accruing on the Stated
Amount of such Unit from and including the date of first issuance of any Units
to but excluding the Final Settlement Date or, if earlier, the date of
settlement of such Purchase Contract at a rate per annum equal to the Contract
Fee Rate (and computed on the basis of a 360-day year of twelve 30-day months),
plus any additional fees accrued thereon pursuant to Section 503.
"Contract Fee Rate" means o%.
"Corporate Trust Office" means the principal office of the Unit Agent
in the Borough of Manhattan, The City of New York, at which at any particular
time its corporate trust business shall be administered, which office at the
date hereof is located at o, o, New York, New York o.
"Current Market Price" has the meaning specified in Section 506(a)(8).
"Deferral Rate" means o% [insert rate equal to coupon on U.S. Treasury
Notes Due 2002 plus Contract Fee Rate].
"Depositary" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for Global Units as contemplated by
Section 305.
"Early Settlement Date" has the meaning specified in Section 511.
"Early Settlement Right" has the meaning specified in Section 511.
"Exchange Act" means the Securities Exchange Act of 1934 or any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Final Settlement Date" means o o, 2002.
"Global Unit Certificate" means a Unit Certificate that evidences all
or part of the Normal Units or a Unit Certificate that evidences all or a part
of the Stripped Units and is registered in the name of the Depositary or a
nominee thereof.
"Holder" means a Person in whose name a Unit Certificate is registered
in the Unit Register; "Holder", when used with respect to any particular Unit
Certificate (or Unit), means a Person in whose name such Unit Certificate (or
the Unit Certificate evidencing such Unit) is registered in the relevant Unit
Register.
"Initial Stock Price" means $o, subject to adjustment as provided in
Section 306.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Company by its Chairman of the Board, any Vice
Chairman, its President or a Vice President and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the Unit
Agent.
"Normal Unit" means the rights to purchase Common Stock and receive
Contract Fees under a Purchase Contract, together with ownership of the U.S.
Treasury Notes Due 2002 pledged to secure the obligations referred to in (a)
below, subject to (a) the obligations owed to the Company under such Purchase
Contract and (b) the pledge arrangements securing the foregoing obligations;
"Normal Unit Recreation" has the meaning specified in Section 310(a).
"NYSE" has the meaning specified in Section 501.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, any Vice Chairman, the President or any Vice President of the Company
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company and delivered to the Unit Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company.
"Outstanding Unit Certificates" means, as of the date of determination,
all Unit Certificates theretofore authenticated, executed and delivered pursuant
to this Agreement, except:
(a) Unit Certificates theretofore canceled by the Unit Agent
or delivered to the Unit Agent for cancellation; and
(b) Unit Certificates in exchange for or in lieu of which
other Unit Certificates have been authenticated, executed on behalf of
the Holder and delivered pursuant to this Agreement, other than any
such Unit Certificate in respect of which there shall have been
presented to the Unit Agent proof satisfactory to it that such Unit
Certificate is held by a bona fide purchaser in whose hands the Units
evidenced by such Unit Certificate are valid obligations of the
Company.
"Outstanding Units" means, as of the date of determination, all Units
evidenced by then Outstanding Unit Certificates, except, on or after the
Termination Date, Final Settlement Date or Early Settlement Date (if
applicable), Units for which the underlying Pledged Securities or the Common
Stock purchasable upon settlement of the underlying Purchase Contracts, as the
case may be, have been theretofore deposited with the Unit Agent in trust for
the Holders of such Units; provided, however, that in determining whether the
Holders of the requisite number of Units have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Units owned by
the Company or any Affiliate of the Company shall be disregarded and deemed not
to be outstanding, except that, in determining whether the Unit Agent shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Units which the Unit Agent actually knows to be
so owned shall be so disregarded. Units so owned which have been pledged in good
faith may be regarded as Outstanding Units if the pledgee establishes to the
satisfaction of the Unit Agent the pledgee's right so to act with respect to
such Units and that the pledgee is not the Company or any Affiliate of the
Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" means the pledge of the Pledged Securities under the Pledge
Agreement.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, among the Company, the Collateral Agent and the Unit Agent, in its
capacity as Unit Agent and as attorney-in-fact for the Holders from time to time
of the Units, the form of which is attached hereto as Exhibit C, as the same may
be amended from time to time in accordance with the terms hereof and thereof.
"Pledged Securities" has the meaning specified in the Pledge Agreement.
"Predecessor Unit Certificate" of any particular Unit Certificate means
every previous Unit Certificate evidencing all or a portion of the rights and
obligations of the Holder under the Units evidenced thereby; and, for the
purposes of this definition, any Unit Certificate authenticated and delivered
under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Unit Certificate shall be deemed to evidence the same rights and
obligations of the Holder as the mutilated, destroyed, lost or stolen Unit
Certificate.
"Principal Agreements" means this Agreement and the Pledge Agreement.
"Purchase Contract" means a contract obligating the Company to sell and
the Holder of the related Unit to purchase Common Stock on the terms and subject
to the conditions set forth in Article Five hereof.
"Purchase Contract Settlement Fund" has the meaning specified in
Section 505.
"Record Date", when used with respect to any payment date, means the
Business Day next preceding such payment date.
"Reorganization Event" has the meaning specified in Section 506(b).
"Responsible Officer", when used with respect to the Unit Agent, means
any vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any trust officer or assistant trust officer, or any other
officer or assistant officer of the Unit Agent customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Semi-Annual Payment Date" means each o o and o o, commencing o o,
1999.
"Settlement Price" has the meaning specified in Section 501.
"Settlement Rate" has the meaning specified in Section 501.
"Stated Amount" means $50 per Unit.
"Stripped Unit" means the rights to purchase Common Stock and receive
Contract Fees under a Purchase Contract, together with ownership of the U.S.
Treasury STRIPS Due 2002 pledged to secure the obligations referred to in (a)
below, subject to (a) the obligations owed to the Company under such Purchase
Contract and (b) the pledge arrangements securing the foregoing obligations.
"Stripped Unit Creation" has the meaning specified in Section 309(a).
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following events
at any time on or prior to the Final Settlement Date: (a) a decree or order of a
court having jurisdiction in the premises shall have been entered adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization of the Company under the United States Bankruptcy Code or
any other similar applicable Federal or State law, and, unless such decree or
order shall have been entered within 60 days prior to the Final Settlement Date,
such decree or order shall have continued undischarged and unstayed for a period
of 60 days, or (b) a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of the Company or of its property, or for the
winding up or liquidation of its affairs, shall have been entered, and, unless
such decree or order shall have been entered within 60 days prior to the Final
Settlement Date, such decree or order shall have continued undischarged and
unstayed for a period of 60 days, or (c) the Company shall institute proceedings
to be adjudicated a bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
reorganization under the United States Bankruptcy Code or any other similar
applicable Federal or State law, or shall consent to the filing of any such
petition, or shall consent to the appointment of a receiver or liquidator or
trustee or assignee in bankruptcy or insolvency of it or of its property, or
shall make an assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" means $o, subject to adjustment as
provided in Section 506.
"Trading Day" has the meaning specified in Section 501.
"Treasury Securities" means United States Treasury Securities.
"Underwriting Agreement" means the Underwriting Agreement dated o o,
1999, among the Company and Xxxxxxx, Xxxxx & Co. and o as representatives of the
Underwriters named therein.
"Unit Agent" means the Person named as the "Unit Agent" in the first
paragraph of this Agreement until a successor Unit Agent shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter "Unit
Agent" shall mean the Person who is then the Unit Agent hereunder.
"Unit Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Normal Units or Stripped
Units, as the case may be, specified on such certificate.
"Unit Register" and "Unit Registrar" have the respective meanings
specified in Section 305.
"Units" means the Normal Units and, if any are issued, Stripped Units.
The Purchase Contracts and/or Pledged Securities constituting a part of any
Units are sometimes referred to herein as "underlying" such Units and are
sometimes herein said to "underlie" such Units.
"U.S. Treasury Notes Due 2002" means United States Treasury o% Notes
due o o, 2002.
"U.S. Treasury STRIPS Due 2002" means United States Treasury STRIPS due
o o, 2002.
"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 12. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Unit Agent to take any action under
any provision of this Agreement, the Company shall furnish to the Unit Agent at
the Unit Agent's request (i) an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and/or (ii) 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:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 13. Form of Documents Delivered to Unit Agent.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
SECTION 14. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Unit Agent and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 701) conclusive in favor of the Unit Agent and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Unit Agent deems sufficient.
(c) The ownership of Units shall be proved by the Unit Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Unit shall bind every future Holder of
the same Unit and the Holder of every Unit Certificate evidencing such Unit
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
Unit Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Unit Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Units entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Units. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Units on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite number of Outstanding Units on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite number of Outstanding Units on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Unit Agent in writing and to each Holder of Units in the manner set
forth in Section 106.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day; provided that no
such change shall be effective unless notice of the proposed new Expiration Date
is given to the Unit Agent in writing, and to each Holder of Units in the manner
set forth in Section 106, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the Company shall be deemed to have initially designated the
180th day after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.
SECTION 15. Notices, etc. to Unit Agent and the Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Agreement to be made upon, given or furnished to, or filed with,
(a) the Unit 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
Unit Agent at o, Attention: o or at any other address previously
furnished in writing by the Unit Agent to the Holders and the Company,
or
(b) the Company by the Unit 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 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000,
Attention: General Counsel, or at any other address previously
furnished in writing by the Company to the Unit Agent and the Holders.
SECTION 16. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Unit 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
Unit 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 Unit Agent
shall constitute a sufficient notification for every purpose hereunder.
SECTION 17. 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 18. 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 19. Separability Clause.
In case any provision in this Agreement or in the Units shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
SECTION 110. Benefits of Agreement.
Nothing in this Agreement or in the Unit Certificates, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefits or any legal or equitable
right, remedy or claim under this Agreement. The Holders from time to time shall
be beneficiaries of this Agreement and shall be bound by all of the terms and
conditions hereof and of the Units evidenced by their Unit Certificates by their
acceptance of delivery thereof.
SECTION 111. Governing Law.
THIS AGREEMENT AND THE UNITS SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
SECTION 112. Legal Holidays.
In any case where any Semi-Annual Payment Date or the Final Settlement
Date shall not be a Business Day, then (notwithstanding any other provision of
this Agreement or of the Units) payment in respect of interest on Pledged
Securities or Contract Fees shall not be made, Purchase Contracts shall not be
performed and other actions described herein shall not occur, but such payments
shall be made, the Purchase Contracts shall be performed and such other actions
shall occur, as applicable, on the next succeeding Business Day with the same
force and effect as if made on such Semi-Annual Payment Date or Final Settlement
Date, as the case may be; provided, that to the extent such payment is made on
the next succeeding Business Day, no interest shall accrue or be payable by the
Company or any Holder for the period from and after any such Semi-Annual Payment
Date or Final Settlement Date, as the case may be, to the date of payment or
performance.
SECTION 113. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which, when so executed, shall be deemed an original, but all such counterparts
shall together constitute one and the same instrument.
SECTION 114. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times at
the Corporate Trust Office for inspection by any Holder.
ARTICLE TWO
UNIT CERTIFICATE FORMS
SECTION 21. Forms of Unit Certificates Generally.
Unit Certificates evidencing Normal Units shall be in substantially the
form set forth in Exhibit A hereto and Unit Certificates evidencing the Stripped
Units shall be in substantially the form of Exhibit B hereto, in each case 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 Units are listed
or Depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Unit Certificates, as evidenced by their
execution of the Unit Certificates.
The definitive Unit Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing the Unit Certificates,
consistent with the provisions of this Agreement, as evidenced by their
execution thereof.
Every Global Unit Certificate authenticated, executed and delivered
hereunder shall bear a legend in substantially the following form:
THIS UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE WITHIN THE MEANING
OF THE MASTER UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS UNIT CERTIFICATE
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A UNIT CERTIFICATE
REGISTERED, AND NO TRANSFER OF THIS UNIT CERTIFICATE IN WHOLE OR IN
PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE MASTER UNIT AGREEMENT.
SECTION 22. Form of Unit Agent's Certificate of Authentication.
The form of the Unit Agent's certificate of authentication of the Units
shall be in substantially the form set forth on the form of the Unit
Certificates.
ARTICLE THREE
THE UNITS
SECTION 31. Title and Terms; Denominations.
The aggregate number of Units evidenced by Unit Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to o (subject to increase up to a maximum of o to the extent the
over-allotment option of the underwriters under the Underwriting Agreement is
exercised), except for Unit Certificates authenticated, executed and delivered
upon registration of transfer of, in exchange for, or in lieu of, other Unit
Certificates pursuant to Xxxxxxx 000, 000, 000, 000, 000 xx 000.
All of the Unit Certificates authenticated, executed and delivered
hereunder shall be Normal Units except for any Unit Certificates evidencing
Stripped Units issued in connection with a Stripped Unit Creation pursuant to
Section 309 and Unit Certificates authenticated, executed and delivered upon
registration of transfer of, in exchange for, or in lieu of, other Unit
Certificates evidencing Stripped Units pursuant to Section 304, 305, 306 or 805.
Unit Certificates shall be issuable only in registered form and only in
denominations of a single Unit and any integral multiple thereof.
SECTION 32. Rights and Obligations Evidenced by the Unit Certificates.
Each Unit Certificate shall evidence the number of Units specified
therein. Prior to the purchase, if any, of shares of Common Stock under the
Purchase Contracts, the Units shall not entitle the Holders to any of the rights
or privileges of a holder of shares of Common Stock by virtue of holding such
Units, including, without limitation, the right to vote or receive any dividends
or other distributions or to consent or to receive notice as stockholders in
respect of the meetings of stockholders or for the election of directors of the
Company or for any other matter.
SECTION 33. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Section 309 hereof, upon the execution and
delivery of this Agreement, and at any time and from time to time thereafter,
the Company may deliver Unit Certificates executed by the Company to the Unit
Agent for authentication, execution on behalf of the Holders and delivery,
together with its Issuer Order for authentication of such Unit Certificates, and
the Unit Agent in accordance with such Issuer Order shall authenticate, execute
on behalf of the Holders and make such Unit Certificates available for delivery.
The Unit Certificates shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Unit Certificates may be manual or facsimile.
Unit 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 Unit
Certificates or did not hold such offices at the date of such Unit Certificates.
Each Unit Certificate shall be dated the date of its authentication.
No Purchase Contract underlying a Unit evidenced by a Unit Certificate
shall be valid until such Unit Certificate has been executed on behalf of the
Holder by the manual signature of an authorized signatory of the Unit Agent, as
such Holder's attorney-in-fact. Such signature by an authorized signatory of the
Unit Agent shall be conclusive evidence that the Holder of such Unit Certificate
has entered into the Purchase Contracts underlying the Units evidenced by such
Unit Certificate.
No Unit Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on such
Unit Certificate a certificate of authentication substantially in the form
provided for herein executed by an authorized signatory of the Unit Agent by
manual signature, and such certificate upon any Unit Certificate shall be
conclusive evidence, and the only evidence, that such Unit Certificate has been
duly authenticated and delivered hereunder.
SECTION 34. Temporary Unit Certificates.
Pending the preparation of definitive Unit Certificates, the Company
shall execute and deliver (together with an Issuer Order) to the Unit Agent, and
the Unit Agent shall authenticate, execute on behalf of the Holders, and
deliver, in lieu of such definitive Unit Certificates, temporary Unit
Certificates which are in substantially the form set forth in Exhibit A or
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
Units are listed or Depositary therefor, or as may, consistently herewith, be
determined by the officers of the Company executing such Unit Certificates, as
evidenced by their execution of the Unit Certificates.
If temporary Unit Certificates are issued, the Company will cause
definitive Unit Certificates to be prepared without unreasonable delay. After
the preparation of definitive Unit Certificates, the temporary Unit Certificates
shall be exchangeable for definitive Unit Certificates upon surrender of the
temporary Unit 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 Unit Certificates, the Company shall execute and deliver
to the Unit Agent, and the Unit Agent shall authenticate, execute on behalf of
the Holder, and deliver in exchange therefor, one or more definitive Unit
Certificates of authorized denominations and evidencing a like number of Normal
Units or Stripped Units, as the case may be, as the temporary Unit Certificate
or Unit Certificates so surrendered. Until so exchanged, the temporary Unit
Certificates shall in all respects evidence the same benefits and the same
obligations with respect to the Units evidenced thereby as definitive Unit
Certificates.
SECTION 35. Registration; Registration of Transfer and Exchange.
The Unit Agent shall keep at the Corporate Trust Office registers (the
registers maintained in such office being herein referred to as the "Unit
Registers") in which, subject to such reasonable regulations as it may
prescribe, the Unit Agent shall provide for the registration of Unit
Certificates evidencing the Normal Units and the Stripped Units and of transfers
of Unit Certificates evidencing the Normal Units and the Stripped Units (the
Unit Agent, in such capacity, the "Unit Registrar").
Upon surrender for registration of transfer of any Unit Certificate at
the Corporate Trust Office, the Company shall execute and deliver to the Unit
Agent, and the Unit 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 Unit Certificates evidencing a like
number of Normal Units or Stripped Units, as the case may be.
At the option of the Holder, Unit Certificates may be exchanged for
other Unit Certificates evidencing a like number of Normal Units or Stripped
Units, as the case may be, upon surrender of the Unit Certificates to be
exchanged at the Corporate Trust Office. Whenever any Unit Certificates are so
surrendered for exchange, the Company shall execute and deliver to the Unit
Agent, and the Unit Agent shall authenticate, execute on behalf of the Holder,
and deliver the Unit Certificates which the Holder making the exchange is
entitled to receive.
All Unit Certificates issued upon any registration of transfer or
exchange of a Unit Certificate shall evidence the ownership of the same number
of Normal Units or Stripped Units, as the case may be, and be entitled to the
same benefits and subject to the same obligations, under the Principal
Agreements as the Normal Units or Stripped Units, as the case may be, evidenced
by the Unit Certificate surrendered upon such registration of transfer or
exchange.
Every Unit Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Unit Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Unit Agent duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Unit Certificate, but the Company and the Unit 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 Unit Certificates (which, for these purposes, includes a
Stripped Unit Creation or Normal Unit Recreation), other than any exchanges
pursuant to Sections 304, 306 and 805 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated
to authenticate, execute on behalf of the Holder and deliver any Unit
Certificate in respect of a Unit Certificate presented or surrendered for
registration of transfer or for exchange on or after the Final Settlement Date
or the Termination Date. In lieu of delivery of a new Unit Certificate, upon
satisfaction of the applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from such Holder,
the Unit Agent shall (a) if the Final Settlement Date has occurred, deliver the
shares of Common Stock issuable in respect of the Purchase Contracts forming a
part of the Units evidenced by such Unit Certificate, or (b) if a Termination
Event shall have occurred on or prior to the Final Settlement Date, transfer the
principal amount of the Pledged Securities evidenced thereby, in each case
subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
The provisions of Clauses (a), (b), (c) and (d) below shall apply only
to Global Unit Certificates:
(a) Each Global Unit Certificate authenticated and executed on
behalf of the Holders under this Agreement shall be registered in the
name of the Depositary designated for such Global Unit Certificate or a
nominee thereof and delivered to such Depositary or a nominee thereof
or custodian therefor, and each such Global Unit Certificate shall
constitute a single Unit Certificate for all purposes of this
Agreement.
(b) Notwithstanding any other provision in this Agreement, no
Global Unit Certificate may be exchanged in whole or in part for Unit
Certificates registered, and no transfer of a Global Unit Certificate
in whole or in part may be registered, in the name of any Person other
than the Depositary for such Global Unit Certificate or a nominee
thereof unless (i) such Depositary (x) has notified the Company that it
is unwilling or unable to continue as Depositary for such Global Unit
Certificate or (y) has ceased to be a clearing agency registered under
the Exchange Act or (ii) there shall have occurred and be continuing a
default by the Company in respect of its obligations under one or more
Principal Agreements.
(c) Subject to Clause (b) above, any exchange of a Global Unit
Certificate for other Unit Certificates may be made in whole or in
part, and all Unit Certificates issued in exchange for a Global Unit
Certificate or any portion thereof shall be registered in such names as
the Depositary for such Global Unit Certificate shall direct.
(d) Every Unit Certificate authenticated and delivered upon
registration of transfer of, in exchange for or in lieu of a Global
Unit Certificate or any portion thereof, whether pursuant to this
Section, Section 304, 306, 309, 310 or 805 or otherwise, shall be
authenticated, executed on behalf of the Holders and delivered in the
form of, and shall be, a Global Unit Certificate, unless such Unit
Certificate is registered in the name of a Person other than the
Depositary for such Global Unit Certificate or a nominee thereof.
SECTION 36. Mutilated, Destroyed, Lost and Stolen Unit Certificates.
If any mutilated Unit Certificate is surrendered to the Unit Agent, the
Company shall execute and deliver to the Unit Agent, and the Unit Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
a new Unit Certificate, evidencing the same number of Normal Units or Stripped
Units, as the case may be, and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Unit Agent (a)
evidence to their satisfaction of the destruction, loss or theft of any Unit
Certificate, and (b) such security or indemnity as may be required by them to
save each of them and any agent of any of them harmless, then, in the absence of
notice to the Company or the Unit Agent that such Unit Certificate has been
acquired by a bona fide purchaser, the Company shall execute and deliver to the
Unit Agent, and the Unit Agent shall authenticate, execute on behalf of the
Holder, and deliver to the Holder, in lieu of any such destroyed, lost or stolen
Unit Certificate, a new Unit Certificate, evidencing the same number of Normal
Units or Stripped Units, as the case may be, and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated
to authenticate, execute on behalf of the Holder, and deliver to the Holder, on
or after the Final Settlement Date or the Termination Date, a Unit Certificate
in respect of any mutilated, destroyed, lost or stolen Unit Certificate. In lieu
of delivery of a new Unit Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Unit Agent shall (a)
if the Final Settlement Date has occurred, deliver the shares of Common Stock
issuable in respect of the Purchase Contracts forming a part of the Units
evidenced by such Unit Certificate, or (b) if a Termination Event shall have
occurred on or prior to the Final Settlement Date, transfer the liquidation or
principal amount of the Pledged Securities evidenced thereby, in each case
subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
Upon the issuance of any new Unit Certificate under this Section, the
Company and the Unit Agent may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Unit Agent) connected therewith.
Every new Unit Certificate issued pursuant to this Section in lieu of
any destroyed, lost or stolen Unit Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder, whether or
not the destroyed, lost or stolen Unit Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of the Principal Agreements equally and proportionately
with any and all other Unit Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
settlement of mutilated, destroyed, lost or stolen Unit Certificates.
SECTION 37. Persons Deemed Owners.
Prior to due presentment of a Unit Certificate for registration of
transfer, the Company and the Unit Agent, and any agent of the Company or the
Unit Agent, may treat the Person in whose name such Unit Certificate is
registered as the owner of the Units evidenced thereby, for the purpose of
receiving payments of interest on the Pledged Securities, receiving or making
payments of Contract Fees and performance of the underlying Purchase Contracts
and for all other purposes whatsoever, whether or not the payment of interest on
the Pledged Securities or any Contract Fee payable in respect of the Purchase
Contracts constituting a part of the Units evidenced thereby shall be overdue
and notwithstanding any notice to the contrary, and neither the Company nor the
Unit Agent, nor any agent of the Company or the Unit Agent, shall be affected by
notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Unit
Certificate, nothing herein shall prevent the Company, the Unit Agent or any
agent of the Company or the Unit Agent, from giving effect to any written
certification, proxy or other authorization furnished by any Depositary (or its
nominee), as a Holder, with respect to such Global Unit Certificate or impair,
as between such Depositary and owners of beneficial interests in such Global
Unit Certificate, the operation of customary practices governing the exercise of
rights of such Depositary (or its nominee) as Holder of such Global Unit
Certificate.
SECTION 38. Cancellation.
All Unit Certificates surrendered for delivery of shares of Common
Stock on an Early Settlement Date, on or after the Final Settlement Date, on
transfer of Pledged Securities after the occurrence of a Termination Event or on
registration of transfer or exchange shall, if surrendered to any Person other
than the Unit Agent, be delivered to the Unit Agent and, if not already
canceled, shall be promptly canceled by it. The Company may at any time deliver
to the Unit Agent for cancellation any Unit Certificates previously
authenticated, executed and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Unit Certificates so delivered shall,
upon Issuer Order, be promptly canceled by the Unit Agent. No Unit Certificates
shall be authenticated, executed on behalf of the Holder and delivered upon
transfer of, in exchange for or in lieu of any Unit Certificates canceled as
provided in this Section, except as expressly permitted by this Agreement. All
canceled Unit Certificates held by the Unit Agent shall be disposed of as
directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire any Unit
Certificate, such acquisition shall not operate as a cancellation of such Unit
Certificate unless and until such Unit Certificate is delivered to the Unit
Agent canceled or for cancellation.
SECTION 39. Substitution of Pledged Securities and Creation of Stripped Units;
Normal Units Not Otherwise Separable.
(a) A Holder of Normal Units may obtain the release from the Pledge of
such Holder's Pledged Securities underlying such Normal Units, free and clear of
the Company's security interests therein, and convert such Normal Units into
Stripped Units (a "Stripped Unit Creation") at any time after the original
issuance of such Normal Units and on or prior to the second Business Day
immediately preceding the Final Settlement Date by:
(i) delivering to the Collateral Agent U.S. Treasury STRIPS
Due 2002 having a total principal amount equal to the total Stated
Amount of such Normal Units; and
(ii) surrendering the Unit Certificate evidencing such Normal
Units, with the form of Request to Create Stripped Units thereon duly
completed and executed, to the Unit Agent, whereupon the Unit Agent
shall promptly request the Collateral Agent to release the Pledged
Securities underlying such Normal Units;
provided, however, that a Holder of Normal Units may only exercise its right to
Stripped Unit Creation with respect to a number of Normal Units that is an
integral multiple of 20.
(b) Upon receipt of the items described in clause (i) of Section 309(a)
above and the request from the Unit Agent described in clause (ii) of Section
309(a) above, the Collateral Agent will, in accordance with the terms of the
Pledge Agreement, release to the Unit Agent, on behalf of the Holder, from the
Pledge, free and clear of the Company's security interests therein, the
securities that theretofore had been the Pledged Securities underlying such
Normal Units, and upon receipt thereof the Unit Agent shall promptly:
(i) cancel the Unit Certificate for such Normal Units;
(ii) transfer such released Pledged Securities to the Holder
or, subject to Section 305, the Holder's designee;
(iii) authenticate, execute on behalf of such Holder and
deliver to the Holder or, subject to Section 305, the Holder's designee
a Unit Certificate executed by the Company in accordance with Section
303 evidencing a number of Stripped Units equal to the number of such
Normal Units.
Concurrently with any release of the securities that theretofore had been the
Pledged Securities underlying such Normal Units as contemplated by the preceding
sentence, the U.S. Treasury STRIPS Due 2002 delivered to the Collateral Agent as
contemplated by clause (i) of Section 309(a) above shall thereupon be
substituted for such securities as Pledged Securities underlying the Stripped
Units created from such Normal Units.
(c) Except for a Stripped Unit Creation effected in compliance with
this Section 309, for so long as the Purchase Contract underlying a Normal Unit
remains in effect such Normal Unit shall not be separable into its constituent
parts, and the rights and obligations of the Holder of such Normal Unit in
respect of the Pledged Securities and Purchase Contract underlying such Normal
Unit may be acquired, and may be transferred and exchanged, only as an
integrated Normal Unit. Other than a Unit Certificate, no Holder of a Normal
Unit, nor any transferee thereof, shall be entitled to receive a certificate
evidencing the ownership of Pledged Securities or any other rights or
obligations underlying such Normal Unit for so long as the Purchase Contract
underlying such Normal Unit remains in effect.
SECTION 310. Substitution of Pledged Securities and Recreation of Normal Units;
Stripped Units Not Otherwise Separable.
(a) A Holder of Stripped Units may reconstitute Normal Units from
Stripped Units (a "Normal Unit Recreation") at any time after the creation of
such Stripped Units and on or prior to the second Business Day immediately
preceding the Final Settlement Date by:
(i) delivering to the Collateral Agent U.S. Treasury Notes Due
2002 having a total principal amount equal to the total Stated Amount
of such Stripped Units; and
(ii) surrendering the Unit Certificate evidencing such
Stripped Units, with the form of Request to Recreate Normal Units
thereon duly completed and executed, to the Unit Agent, whereupon the
Unit Agent shall promptly request the Collateral Agent to release the
Pledged Securities underlying such Stripped Units;
provided, however, that a Normal Unit Recreation may only be effected with
respect to a number of Stripped Units that is an integral multiple of 20.
(b) Upon receipt of the items described in clause (i) of Section 310(a)
above and the request from the Unit Agent described in clause (ii) of Section
310(a) above, the Collateral Agent will, in accordance with the terms of the
Pledge Agreement, release to the Unit Agent, on behalf of the Holder, from the
Pledge, free and clear of the Company's security interests therein, the
securities that theretofore had been the Pledged Securities underlying such
Stripped Units, and upon receipt thereof the Unit Agent shall promptly:
(i) cancel the Unit Certificate for such Stripped Units;
(ii) transfer such released Pledged Securities to the Holder
or, subject to Section 305, the Holder's designee; and
(iii) authenticate, execute on behalf of such Holder and
deliver to the Holder or, subject to Section 305, the Holder's designee
a Unit Certificate executed by the Company in accordance with Section
303 evidencing a number of Normal Units equal to the number of such
Stripped Units.
Concurrently with the release of the securities that theretofore had been the
Pledged Securities underlying such Stripped Units as contemplated by the
preceding sentence, the U.S. Treasury Notes Due 2002 delivered to the Collateral
Agent as contemplated by clause (i) of Section 310(a) above shall thereupon be
substituted for such securities as Pledged Securities underlying the Normal
Units created from such Stripped Units.
(c) Except for a Normal Unit Recreation effected in compliance with
this Section 310, for so long as the Purchase Contract underlying a Stripped
Unit remains in effect such Stripped Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Stripped
Unit in respect of the Pledged Securities and Purchase Contract underlying such
Stripped Unit may be acquired, and may be transferred and exchanged, only as an
integrated Stripped Unit. Other than a Unit Certificate, no Holder of a Stripped
Unit, nor any transferee thereof, shall be entitled to receive a certificate
evidencing the ownership of Pledged Securities or any other rights or
obligations underlying such Stripped Unit for so long as the Purchase Contract
underlying such Stripped Unit remains in effect.
SECTION 311. Payments on the Units.
Contract Fees payable by the Company to the Holders, if any, and all
amounts payable to Holders as required by Section 401, will be payable at the
office of the Unit 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 address as it appears on the relevant Unit Register on
the Record Date; provided, however, that for so long as any Units are evidenced
by Global Certificates, the Unit Agent will pay each such amount payable in
respect of such Units by wire transfer in same-day funds, no later than 2:00
p.m., New York City time, on the Business Day such amount is received by the
Unit Agent from the Collateral Agent or the Company (or, if such amount is
received by the Unit Agent after 1:00 p.m., New York City time, on a Business
Day or on a day that is not a Business Day, no later than 10:00 a.m., New York
City time, on the next succeeding Business Day), to the Depositary, to the
account or accounts designated by it for such purpose.
ARTICLE FOUR
THE PLEDGED SECURITIES
SECTION 41. Payments on the Pledged Securities.
On each Semi-Annual Payment Date, as provided by the terms of the
Pledge Agreement, subject to receipt by the Collateral Agent of the relevant
interest payments in respect of the Pledged Securities underlying any Holder's
Normal Units, (a) the Collateral Agent shall remit to the Unit Agent the amount
of such interest payments and (b) the Unit Agent shall pay such amount, subject
to receipt thereof by the Unit Agent from the Collateral Agent, to the Person in
whose name the Unit Certificate (or one or more Predecessor Unit Certificates)
evidencing such Units is registered at the close of business on the Record Date
next preceding such Semi-Annual Payment Date.
Principal payments on the Pledged Securities on the Final Settlement
Date are discussed at Section 504.
SECTION 42. Transfer of Pledged Securities upon Occurrence of Termination Event.
Upon the occurrence of a Termination Event and the transfer of the
Pledged Securities underlying each Holder's Units to the Unit Agent pursuant to
the terms of the Pledge Agreement, the Unit Agent shall request transfer
instructions with respect to such Pledged Securities from such Holder by written
request mailed to such Holder at his address as it appears in the relevant Unit
Register and shall give notice of such Termination Event to the Collateral
Agent. Thereafter, upon surrender to the Unit Agent of a Unit Certificate
evidencing a Holder's Units, with transfer instructions in proper form for
transfer of the underlying Pledged Securities, the Unit Agent shall transfer the
Pledged Securities evidenced by such Unit Certificate to such Holder in
accordance with such instructions; provided, however, that if the Pledged
Securities are to be transferred to a Person other than the Person in whose name
such Unit Certificate is registered, no such transfer shall be made unless the
Person requesting the transfer has paid any transfer and other taxes required by
reason of such transfer to a Person other than the registered Holder of such
Unit Certificate or has established to the satisfaction of the Company that such
tax either has been paid or is not payable. Until the foregoing conditions to
transfer any of the Pledged Securities underlying any Units has been met, the
Unit Agent shall hold such Pledged Securities as custodian for the Holder of
such Units.
If upon a Termination Event any Holder of Units would, after satisfying
the foregoing conditions, otherwise be entitled to receive (or have transferred
to such Holder's designee) Treasury Securities of any series having a principal
amount that is not an integral multiple of $1,000, such Holder shall instead be
entitled to receive (or have transferred to such Holder's designee) Treasury
Securities of such series in a principal amount equal to the next lower integral
multiple of $1,000 plus a portion of the net proceeds from the sale of Treasury
Securities of such series contemplated by the succeeding sentence representing
such Holder's interest therein. As soon as practicable after transfer to the
Unit Agent of the Pledged Securities as provided in the Pledge Agreement, the
Unit Agent shall, on behalf of all Holders who, by virtue of the preceding
sentence, will not be entitled to a portion of the Treasury Securities of any
series to which they would otherwise be entitled, aggregate and sell the
Treasury Securities of such series representing such portion to or through one
or more U.S. government securities dealers at then prevailing prices, deduct
from the proceeds of such sales all commissions and other out-of-pocket
transaction costs incurred in connection with such sales and, until the net
proceeds therefrom have been distributed to the Holders entitled thereto or
their designees, hold such proceeds in trust for such Holders.
ARTICLE FIVE
THE PURCHASE CONTRACTS
SECTION 51. Purchase of Shares of Common Stock.
Each Purchase Contract underlying a Unit shall obligate the Holder of
such Unit to purchase, and the Company to sell, on the Final Settlement Date,
for cash in an amount equal to $50, Common Stock at a price per share equal to
the Settlement Price (i.e., a number of shares of Common Stock equal to $50
divided by the Settlement Price); provided, however, that the number of shares
of Common Stock that will be purchased and sold per Purchase Contract (the
"Settlement Rate") will be rounded upward or downward to the nearest 1/10,000th
of a share or, if there is not a nearest 1/10,000th of a share, to the next
higher 1/10,000th of a share. "Settlement Price" means the Applicable Market
Value, except that (a) if the Applicable Market Value is below the Initial Stock
Price, "Settlement Price" means the Initial Stock Price, and (b) if the
Applicable Market Value is above the Threshold Appreciation Price, "Settlement
Price" means the Threshold Appreciation Price. As provided in Section 509, no
fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock during the 20 consecutive Trading Day period ending on
and including the last Trading Day before the Final Settlement Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The NASDAQ Stock Market, or, if the Common Stock is not
so reported, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized investment
banking firm retained for this purpose by the Company. A "Trading Day" means a
day on which the Common Stock (A) is not suspended from trading on any national
or regional securities exchange or association or over-the-counter market at the
close of business and (B) has traded at least once on the national or regional
securities exchange or association or over-the-counter market that is the
primary market for the trading of the Common Stock.
Each Holder of a Unit Certificate evidencing Units, by his acceptance
thereof, irrevocably authorizes the Unit Agent to enter into and perform the
underlying Purchase Contracts on his behalf as his attorney-in-fact, agrees to
be bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions of the
Principal Agreements, irrevocably authorizes the Unit Agent to enter into and
perform the Pledge Agreement on his behalf as his attorney-in-fact, and consents
to and agrees to be bound by the Pledge of the Pledged Securities underlying
such Units pursuant to the Pledge Agreement. Each Holder of Units, by his
acceptance thereof, further irrevocably covenants and agrees that, unless such
Holder satisfies its obligations to the Company under the Purchase Contracts
underlying such Units as provided in Section 504(a), then to the extent and in
the manner provided in Section 504(b) and the Pledge Agreement, but subject to
the terms thereof, payments in respect of all or a portion of the principal of
or proceeds from the Pledged Securities on the Final Settlement Date shall be
paid by the Collateral Agent to the Company in satisfaction of such Holder's
obligations under such Purchase Contract and such Holder shall acquire no right,
title or interest in such payments.
Upon registration of transfer of a Unit Certificate evidencing Units,
the transferee shall be bound (without the necessity of any other action on the
part of such transferee) by the terms of the underlying Purchase Contracts and
by the Pledge Agreement and the transferor shall be released from all such
obligations evidenced by the Unit Certificate so transferred. The Company
covenants and agrees, and each Holder of a Unit Certificate, by his acceptance
thereof, likewise covenants and agrees, to be bound by the provisions of this
paragraph.
SECTION 52. Contract Fees.
Subject to Section 503, the Company shall pay, prior to 1:00 p.m., New
York City time, on each Semi-Annual Payment Date to and including the Final
Settlement Date, the Contract Fees payable in respect of each Purchase Contract
to the Person in whose name the Unit Certificate (or one or more Predecessor
Unit Certificates) evidencing such Purchase Contract is registered at the close
of business on the Record Date next preceding such Semi-Annual Payment Date.
Each Unit Certificate delivered under this Agreement upon registration
of transfer of, in exchange for or in lieu of any other Unit Certificate shall
carry the rights to receive and obligations to pay Contract Fees accrued and
unpaid, and to accrue, which were carried by the Purchase Contracts evidenced by
such other Unit Certificate.
SECTION 53. Deferral of Payment Dates for Contract Fee.
So long as no default in the Company's obligations under the Principal
Agreements has occurred and is continuing, the Company shall have the right, at
any time prior to the Final Settlement Date, to defer the payment of any or all
of the Contract Fees otherwise payable by the Company on any Semi-Annual Payment
Date, but only if the Company shall give the Holders and the Unit Agent written
notice of its election to defer such payment (specifying the amount to be
deferred) at least five Business Days prior to the earlier of (a) such
Semi-Annual Payment Date or (b) the date the Company is required to give notice
of such Semi-Annual Payment Date or the Record Date therefor to the NYSE or
other applicable self-regulatory organization or to Holders, or (c) the Record
Date for such Semi-Annual Payment Date. Any Contract Fees so deferred shall bear
additional Contract Fees thereon at a rate per annum equal to the Deferral Rate
(computed on the basis of a 360-day year of twelve 30-day months), compounding
on each succeeding Semi-Annual Payment Date, until paid in full. Deferred
Contract Fees (and additional Contract Fees accrued thereon) shall be due on the
next succeeding Semi-Annual Payment Date except to the extent that payment is
deferred pursuant to this Section. No Contract Fees may be deferred to a date
that is after the Final Settlement Date.
In the event the Company exercises its option to defer the payment of
Contract Fees payable by it, then, until all deferred Contract Fees (including
additional Contract Fees accrued thereon) have been paid in full, the Company
shall not declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock (other than (i) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of, common stock
of the Company, (ii) any declaration of a dividend in connection with the
implementation of a stockholder's rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (iii) as a result of a reclassification of the Company's
capital stock solely into shares of one or more classes or series 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, (iv) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the securities being converted or exchanged and (v) purchases of common
stock in connection with the satisfaction by the Company of its obligations
under any employment contract, incentive plan, benefit plan or similar
arrangement of the Company or any of its subsidiaries or in connection with a
dividend reinvestment plan or stock purchase plan of the Company).
SECTION 54. Payment of Purchase Price.
On the Final Settlement Date, the Collateral Agent will, pursuant to
the terms of the Pledge Agreement, deliver to the Company all payments it shall
have received in respect of principal of the Pledged Securities underlying the
Units, in full satisfaction of the obligations of the Holders of Units to
purchase Common Stock on that date. The Company shall not be obligated to issue
any shares of Common Stock in respect of the Purchase Contracts or deliver any
certificates therefor to Holders unless it shall have received payment in full
of the aggregate purchase price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
SECTION 55. Issuance of Shares of Common Stock.
As promptly as practicable on or after the Final Settlement Date, upon
receipt by the Company of payment in full of the aggregate purchase price for
the shares of Common Stock purchased by the Holders pursuant to the foregoing
provisions of this Article, and subject to Section 506(b), the Company shall
deposit with the Unit Agent, for the benefit of the Holders of the Units, one or
more certificates representing the shares of Common Stock registered in the name
of the Unit Agent (or its nominee) as custodian for the Holders (such
certificates for shares of Common Stock, together with any dividends or
distributions with respect thereto, 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 Unit Certificate to the
Unit Agent on or after the Final Settlement Date, with the form of Settlement
Instructions thereon duly completed and executed, the Holder of such Unit
Certificate shall be entitled to receive in exchange therefor a certificate
representing that number of whole shares of Common Stock which such Holder is
entitled to receive pursuant to the provisions of this Article Five (after
taking into account all Units then held by such Holder) together with cash in
lieu of fractional shares as provided in Section 508 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 Unit
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 form of Settlement Instructions appearing on the surrendered Unit
Certificate.
If any shares of Common Stock issued in respect of a Purchase Contract
are to be registered to a Person other than the Person in whose name the Unit
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 Unit 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 56. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on any class of Common Stock of the Company in Common Stock, the
Initial Stock Price and Threshold Appreciation Price 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 each
be decreased by multiplying it by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination and the denominator shall be the sum of such
number of shares and the total number of shares constituting such dividend or
other distribution, such increase to become effective immediately after the
opening of business on the day following the date fixed for such determination.
For the purposes of this paragraph (1), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all
holders of its Common Stock (not being available on an equivalent basis to
Holders of the Units upon settlement of the Purchase Contracts underlying such
Units) entitling them, for a period expiring within 45 days after the record
date for the determination of stockholders entitled to receive such rights,
options or warrants, to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price per share of the Common Stock
on the date fixed for the determination of stockholders entitled to receive such
rights, options or warrants, the Initial Stock Price and Threshold Appreciation
Price in effect at the opening of business on the day following the date fixed
for such determination shall each be decreased by multiplying it 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 shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company shall not issue any such rights, options or warrants in respect of
shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into
a greater number of shares of Common Stock, the Initial Stock Price and
Threshold Appreciation Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall each be
proportionately decreased, and, conversely, in case outstanding shares of Common
Stock shall each be combined into a smaller number of shares of Common Stock,
the Initial Stock Price and Threshold Appreciation Price in effect at the
opening of business on the day following the day upon which such combination
becomes effective shall each be proportionately increased, such decrease or
increase, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or
combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (2) of this Section, any dividend or distribution paid exclusively in
cash and any dividend or distribution referred to in paragraph (1) of this
Section), the Initial Stock Price and Threshold Appreciation Price in effect
immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution shall each
be decreased by multiplying it 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 Unit Agent) of the portion of the assets or evidences
of indebtedness so distributed applicable to one share of Common Stock and the
denominator shall all be such Current Market Price per share of the Common
Stock, such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock cash (excluding any cash that is distributed in
a Reorganization Event to which Section 506(b) applies or as part of a
distribution referred to in paragraph (4) of this Section) in an aggregate
amount that, when combined with 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 to the extent such amount has
not already been applied in a prior adjustment pursuant to this paragraph (5)
exceeds 10% of the Company's Aggregate Market Capitalization on the date fixed
for the determination of stockholders entitled to receive such distribution, the
Initial Stock Price and Threshold Appreciation Price in effect immediately prior
to the close of business on the date fixed for such determination shall each be
decreased by multiplying it by a fraction of which (i) the numerator shall be
the Current Market Price per share of the Common Stock on the date fixed for
such determination less the per share amount of such distribution and (ii) the
denominator shall be the Current Market Price per share of the Common Stock on
the date fixed for such determination, 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.
(6) In case the Company or any subsidiary of the Company shall
consummate a tender or exchange offer for all or any portion of the Common Stock
and pay a consideration per share in respect thereof having a fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) that exceeds the Current Market
Price per share of the Common Stock on the date of expiration of such offer, the
Initial Stock Price and Threshold Appreciation Price in effect immediately prior
to the close of business on the date of such expiration shall each be decreased
by multiplying it by a fraction of which (i) the numerator shall be (A) the
Aggregate Market Capitalization on the date of such expiration (calculated
without giving effect to the acquisition of shares acquired in such offer) less
(B) the aggregate amount of the cash and the aggregate fair market value
(determined as aforesaid) of the non-cash consideration paid in respect of such
offer and (ii) the denominator shall be (A) the number of shares of Common Stock
outstanding at the close of business on the date of such expiration (calculated
without giving effect to the acquisition of shares acquired in such offer) less
the number of shares of Common Stock acquired in such offer times (B) the
Current Market Price per share of the Common Stock on the date of such
expiration, such adjustment to become effective immediately prior to the opening
of business on the day following the date of such expiration.
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 506(b) applies) shall be deemed to involve
(i) a distribution of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification shall be deemed to
be "the date fixed for the determination of stockholders entitled to receive
such distribution" and the "date fixed for such determination" within the
meaning of paragraph (4) of this Section), and (ii) a subdivision or
combination, as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section).
(8) The "Current Market Price" per share of Common Stock on any day
means the average of the daily Closing Prices for the 5 consecutive Trading Days
selected by the Company commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the day in question and the day before the
"ex" date with respect to the issuance or distribution requiring such
computation. "Aggregate Market Capitalization" on any day means the Current
Market Price per share of the Common Stock on such day times the number of
shares of Common Stock outstanding at the close of business on such day. 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) Each adjustment to the Initial Stock Price and Threshold
Appreciation Price shall be calculated to the nearest $0.001 (or, if there is
not a nearest $0.001, to the next higher $0.001). No adjustment in the Initial
Stock Price and Threshold Appreciation Price 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.
(10) The Company may make such decreases in the Initial Stock Price and
Threshold Appreciation Price, in addition to those required by this Section, as
it considers to be advisable in order to avoid or diminish any income tax to any
holders of shares of Common Stock resulting from any dividend or distribution of
stock or issuance of rights or warrants to purchase or subscribe for stock or
from any event treated as such for income tax purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization Event.
In the event of (i) any consolidation or merger of the Company with another
Person (other than a consolidation or merger in which the Company is the
continuing corporation and in which the Common Stock outstanding immediately
prior to the consolidation or merger 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 in connection with a conversion of the Company's common stock into
securities, cash or other property (any such event, a "Reorganization Event"),
the Purchase Contracts will be adjusted to provide that each Holder of Normal
Units and Stripped Units will receive, upon settlement of each Purchase Contract
forming a part thereof, the kind and amount of securities, cash and other
property receivable upon such Reorganization Event by a Holder of the number of
shares of Common Stock issuable on account of each Purchase Contract if such
settlement had occurred immediately prior to such Reorganization Event, assuming
(A) such Holder of Common Stock is not a Person with which the Company
consolidated or merged or to which such sale or transfer was made, as the case
may be ("constituent Person"), or an Affiliate of a constituent Person, and
failed to exercise his rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such Reorganization Event
(provided, that if the kind or amount of securities, cash and other property
receivable upon such Reorganization Event is not the same for each share of
Common Stock held immediately prior to such Reorganization Event by other than a
constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("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) and (B) the Applicable Market Value used to
calculate Settlement Price equaled (I) in the case of a settlement on the Early
Settlement Date for such Reorganization Event, the average of the Closing Prices
per share of Common Stock during the 20 consecutive Trading Day period ending on
and including the last Trading Day before the date of consummation of the
Reorganization Event, and (II) in the case of a settlement on the Final
Settlement Date, the Package Value. "Package Value" means (i) the amount of any
cash and the fair market value at the Final Settlement Date (as reasonably
determined in good faith by the Board of Directors of the Company) of any
non-cash consideration (other than Marketable Securities) received per share of
Common Stock in the Reorganization Event plus (ii) the average of the Closing
Prices of each type of Marketable Securities (if any) received in the
Reorganization Event during the 20 consecutive Trading Day period ending on and
including the last Trading Day before the Final Settlement Date times the number
of securities of such type received per share of Common Stock in the
Reorganization Event. "Marketable Securities" means any securities (whether
voting or non-voting) listed on a U.S. national securities exchange or reported
by the NASDAQ National Market. 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 Unit Agent an agreement
supplemental hereto providing that the Holders of each Outstanding Unit shall
have the rights provided by this Section 506. Such supplemental agreement shall
provide for adjustments which, for events subsequent to the effective date of
such supplemental agreement, shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Section. The above provisions of this
Section shall similarly apply to successive Reorganization Events.
SECTION 57. Notice of Adjustments and Certain Other Events.
(a Whenever the Initial Stock Price and Threshold Appreciation Price
are adjusted as herein provided, the Company shall:
(i forthwith compute the adjusted Initial Stock Price and
Threshold Appreciation Price in accordance with Section 506 and prepare
and transmit to the Unit Agent an Officers' Certificate setting forth
the Initial Stock Price and Threshold Appreciation Price, the method of
calculation thereof in reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based; and
(ii within 10 Business Days following the occurrence of an
event that permits or requires an adjustment to the Initial Stock Price
and Threshold Appreciation Price pursuant to Section 506 (or if the
Company is not aware of such occurrence, as soon as practicable after
becoming so aware), provide a written notice to the Holders of the
Units of the occurrence of such event and a statement in reasonable
detail setting forth the method by which the adjustment to the Initial
Stock Price and Threshold Appreciation Price was determined and setting
forth the adjusted Initial Stock Price and Threshold Appreciation
Price.
(b The Unit Agent shall not at any time be under any duty or
responsibility to any holder of Units to determine whether any facts exist which
may require any adjustment of the Initial Stock Price and Threshold Appreciation
Price, or with respect to the nature or extent or calculation of any such
adjustment when made, or with respect to the method employed in making the same.
The Unit 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 Unit Agent makes no representation with respect
thereto. The Unit 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 58. No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Final Settlement Date
or an Early Settlement Date. If Unit 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 Unit Certificates so surrendered. Instead of any
fractional share of Common Stock which would otherwise be deliverable upon
settlement of any Purchase Contracts on the Final Settlement Date or an Early
Settlement Date, the Company, through the Unit Agent, shall make a cash payment
in respect of such fractional interest in an amount equal to such fraction times
the Applicable Market Value. The Company shall provide the Unit Agent from time
to time with sufficient funds to permit the Unit Agent to make all cash payments
required by this Section 508 in a timely manner.
SECTION 59. Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable
to the initial issuance and delivery of the shares of Common Stock pursuant to
the Purchase Contracts; provided, however, that the Company shall not be
required to pay any such tax or taxes which may be payable in respect of any
exchange of or substitution for a Unit Certificate evidencing a Purchase
Contract or any issuance of a share of Common Stock in a name other than that of
the registered Holder of a Unit Certificate surrendered in respect of the
Purchase Contracts evidenced thereby, other than in the name of the Unit Agent,
as custodian for such Holder, and the Company shall not be required to issue or
deliver such share certificates or Unit 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.
SECTION 510. Termination Event; Notice.
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, all obligations and
rights to pay or receive any accrued or deferred Contract Fees or to settle such
Purchase Contracts pursuant to this Article Five, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Unit Agent or the Company, if, on or prior to the Final Settlement
Date, a Termination Event shall have occurred. Upon the occurrence of a
Termination Event, the Company shall give written notice to the Unit Agent, the
Collateral Agent and the Holders, at their addresses as they appear in the Unit
Registers. Upon and after the occurrence of a Termination Event, the provisions
of this Article Five (other than this Section 510) shall automatically terminate
and be of no further force or effect, and the Unit Certificates shall thereafter
represent only the right to receive the Pledged Securities forming a part of the
Units theretofore evidenced thereby in accordance with the provisions of Section
402 and the Pledge Agreement.
SECTION 511. Early Settlement Right on Reorganization Event.
(a In the event of the occurrence of a Reorganization Event prior to
the Final Settlement Date, each Holder of Units shall have the right to
accelerate and settle the underlying Purchase Contracts prior to the Final
Settlement Date as set forth in subsection (b) of this Section 511 (such right,
an "Early Settlement Right").
(b The Company shall, within five Business Days following completion of
a Reorganization Event, mail notice thereof to each holder of Units. Such notice
shall specify a date, which shall be a Business Day not less than ten Business
Days nor more than 20 Business Days after the date on which such notice is
mailed, on which any early settlement pursuant to the Early Settlement Rights
shall occur (such date, the "Early Settlement Date"). Such notice shall also set
forth the applicable purchase price per Purchase Contract (net of Contract Fees)
and the amount of securities, cash or other property receivable on early
settlement of a Purchase Contract, as determined in accordance with Section
506(b) hereof.
(c A Holder of Units may exercise its Early Settlement Right with
respect to the Purchase Contracts underlying such Units only by presenting and
surrendering at the offices of the Unit Agent, by no later than 10:00 a.m., New
York City time, on the Early Settlement Date, the certificate evidencing such
Units with the form of "Election to Settle Early" on the reverse side thereof
completed and executed as indicated, accompanied by payment in lawful money of
the United States by certified or cashier's check payable to the order of the
Company in immediately available funds in an amount equal to (a) the aggregate
Stated Amount of such Units less (b) the aggregate amount of any Contract Fees
accrued thereon to but excluding the Early Settlement Date.
(d By 11:00 a.m., New York City time, on the Early Settlement Date, the
Unit Agent shall (i) deliver to the Company all of the payments made as
contemplated by the preceding paragraph, (ii) notify the Collateral Agent and
the Company as to the number of Normal Units and the number of Stripped Units,
respectively, with respect to which payment has been received as aforesaid (such
Units being collectively referred to as "Early Settled Units"), (iii) request
the Collateral Agent (with notice of such request to the Company) to release the
Pledged Securities underlying the Early Settled Units from the Pledge and
transfer such released Pledged Securities to the Unit Agent for delivery to the
Holders of such Units entitled thereto, free and clear of the Company's security
interest therein and (iv) request the Company to issue and/or deliver to the
Unit Agent for delivery to the Holders of such Units entitled thereto, the
securities, cash and/or property deliverable in respect of such Units.
(e By 1:00 p.m., New York City time, on the Early Settlement Date, the
Collateral Agent shall, as provided by the terms of the Pledge Agreement, comply
with the request referred to in clause (iii) of the preceding paragraph and the
Company shall comply with the request referred to in clause (iv) of the
preceding paragraph (subject to the Company's right under the Pledge Agreement
to prevent the Collateral Agent from doing so to the extent the aggregate amount
the Company has received as contemplated by clause (i) of the preceding
paragraph is less than the aggregate amount payable with respect to the Units
referred to in such request). As soon as possible thereafter, the Unit Agent
shall thereupon, subject to its receipt from the Collateral Agent and the
Company of the Pledged Securities and securities, cash and/or property referred
to in such requests, transfer such released Pledged Securities to the respective
Holders entitled thereto in accordance with the settlement instructions
specified in the form of Election to Settle Early appearing on the Unit
Certificates evidencing the Early Settled Units.
(f If any securities issued in respect of a Purchase Contract
underlying an Early Settled Unit are to be registered to a Person other than the
Person in whose name the Unit 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 Unit
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.
(g If a Holder exercises such Holder's Early Settlement Right with
respect to less than all of the Units evidenced by a Unit Certificate, the
Company shall execute and the Unit Agent shall authenticate, countersign and
deliver to the Holder, at the expense of the Company, a Unit Certificate
evidencing the Units as to which the Holder did not exercise such Early
Settlement Right.
ARTICLE SIX
REMEDIES
SECTION 61. Unconditional Rights of Holders.
Notwithstanding any other provision in this Agreement, the Holder of
any Unit shall have the right, which is absolute and unconditional but which is
subject to Section 510, to purchase Common Stock pursuant to the Purchase
Contract underlying such Unit and to receive payment of Contract Fees payable by
the Company to such Holder with respect to such Purchase Contract and, in each
such case, to institute suit for the enforcement of any such right, and such
rights shall not be impaired without the consent of such Holder.
SECTION 62. Restoration of Rights and Remedies.
If any Holder of Units 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 63. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement of
mutilated, destroyed, lost or stolen Unit Certificates in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Holders
of Units 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 64. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or remedy
shall impair any such right or remedy or constitute a waiver of any such right.
Every right and remedy given by this Article or by law to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by such
Holders.
SECTION 65. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of any Unit by his
acceptance of the Unit Certificate evidencing such Unit 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 Unit Agent for any action taken, suffered or omitted by it as Unit 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 Unit
Agent, to any suit instituted by any Holder of Units, or group of Holders,
holding in the aggregate more than 10% of the number of Outstanding Units, or to
any suit instituted by any Holder of Units for the enforcement of payments due
in respect of Contract Fees on Purchase Contracts underlying such Units on or
after the respective due dates therefor, or for enforcement of the right to
purchase shares of Common Stock under the Purchase Contracts constituting a part
of such Units.
SECTION 66. 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 Unit Agent or the Holders, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE SEVEN
THE UNIT AGENT
SECTION 71. Certain Duties and Responsibilities.
(a(i0 The Unit Agent undertakes to perform, with respect to
the Units, 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 Unit Agent; and
(ii0 in the absence of bad faith or negligence on its part,
the Unit Agent may, with respect to the Units, conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Unit
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 Unit Agent, the Unit 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
Unit Agent from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(i this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(ii the Unit 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 Unit Agent was negligent in ascertaining the
pertinent facts; and
(iii no provision of this Agreement shall require the Unit
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(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 Unit Agent shall be subject to the provisions of
this Section.
SECTION 72. Notice of Default.
Within 90 days after the occurrence of any default by the Company
hereunder, of which a Responsible Officer of the Unit Agent has actual
knowledge, the Unit Agent shall transmit by mail to all Holders of Units, as
their names and addresses appear in the Unit Registers, notice of such default
hereunder, unless such default shall have been cured or waived.
SECTION 73. Certain Rights of Unit Agent.
Subject to the provisions of Section 701:
(a) the Unit Agent may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate, Issuer
Order or Issuer Request, and any resolution of the Board of Directors
of the Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Unit
Agent shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Unit
Agent (unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers'
Certificate of the Company;
(d) the Unit Agent may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Unit 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 Unit Agent, in its
discretion, may make reasonable further inquiry or investigation into
such facts or matters related to the issuance of the Units and the
execution, delivery and performance of the Purchase Contracts as it may
see fit, and, if the Unit Agent shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and promises of the Company, personally or by agent or
attorney; and
(f) the Unit Agent may execute any of its powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Unit Agent shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
SECTION 704. Not Responsible for Recitals or Issuance of Units.
The recitals contained herein and in the Unit Certificates shall be
taken as the statements of the Company and the Unit Agent assumes no
responsibility for their correctness. The Unit Agent makes no representations as
to the validity or sufficiency of this Agreement or of the Units. The Unit Agent
shall not be accountable for the use or application by the Company of the
proceeds in respect of the Purchase Contracts.
SECTION 705. May Hold Units.
Any Unit Registrar or any other agent of the Company, or the Unit
Agent, in its individual or any other capacity, may become the owner or pledgee
of Units and may otherwise deal with the Company with the same rights it would
have if it were not Unit Registrar or such other agent, or the Unit Agent.
SECTION 706. Money Held in Trust.
Money held by the Unit Agent in trust hereunder need not be segregated
from other funds except to the extent required by law. The Unit Agent shall be
under no obligation to invest or pay interest on any money received by it
hereunder except as otherwise agreed with the Company.
SECTION 707. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Unit Agent from time to time reasonable
compensation for all services rendered by it hereunder as the Company
and the Unit Agent shall from time to time agree in writing;
(b) except as otherwise expressly provided herein, to
reimburse the Unit Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Unit 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 Unit Agent and any predecessor Unit Agent
and their agents for, and to hold each of them harmless against, any
and all loss, damage, claim, liability or expense, including taxes
(other than taxes based upon, measured by or determined by the income
of the Unit Agent), incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
SECTION 708. Corporate Unit Agent Required; Eligibility.
There shall at all times be an Unit Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by Federal or
State authority and having its Corporate Trust Office in the Borough of
Manhattan, The City of New York, if there be such a corporation in the Borough
of Manhattan, The City of New York qualified and eligible under this Article and
willing to act on reasonable terms. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Unit Agent shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 709. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Unit Agent and no appointment of a
successor Unit Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Unit Agent in accordance with the
applicable requirements of Section 710.
(b) The Unit 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 Unit Agent required by Section
710 shall not have been delivered to the Unit Agent within 30 days after the
giving of such notice of resignation, the resigning Unit Agent may petition any
court of competent jurisdiction for the appointment of a successor Unit Agent.
(c) The Unit Agent may be removed at any time by Act of the Holders of
a majority in number of the Outstanding Units delivered to the Unit Agent and
the Company.
(d) If at any time
(i) the Unit Agent fails to comply with Section 310(b) of the
TIA, as if the Unit Agent were an indenture trustee under an indenture
qualified under the TIA, after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Unit for at least
six months, or
(ii) the Unit Agent shall cease to be eligible under Section
708 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(iii) the Unit Agent shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Unit Agent or
of its property shall be appointed or any public officer shall take
charge or control of the Unit Agent or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the
Unit Agent, or (y) any Holder who has been a bona fide Holder of a Unit for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Unit Agent
and the appointment of a successor Unit Agent.
(e) If the Unit Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Unit Agent for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Unit
Agent and shall comply with the applicable requirements of Section 710. If no
successor Unit Agent shall have been so appointed by the Company and accepted
appointment in the manner required by Section 710, any Holder who has been a
bona fide Holder of a Unit 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 Unit Agent.
(f) The Company shall give, or shall cause such successor Unit Agent to
give, notice of each resignation and each removal of the Unit Agent and each
appointment of a successor Unit Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Units as their names and
addresses appear in the Unit Registers. Each notice shall include the name of
the successor Unit Agent and the address of its Corporate Trust Office.
SECTION 710. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Unit Agent,
every such successor Unit Agent so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Unit Agent an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring Unit
Agent shall become effective and such successor Unit Agent, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
agencies and duties of the retiring Unit Agent; but, on the request of the
Company or the successor Unit Agent, such retiring Unit Agent shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Unit Agent all the rights, powers and trusts of the retiring Unit
Agent and shall duly assign, transfer and deliver to such successor Unit Agent
all property and money held by such retiring Unit Agent hereunder.
(b) Upon request of any such successor Unit Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Unit Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Unit Agent shall accept its appointment unless at the
time of such acceptance such successor Unit Agent shall be qualified and
eligible under this Article.
SECTION 711. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Unit Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Unit Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Unit Agent, shall be the successor of the Unit Agent hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Unit Certificates shall have been
authenticated and executed on behalf of the Holders, but not delivered, by the
Unit Agent then in office, any successor by merger, conversion or consolidation
to such Unit Agent may adopt such authentication and execution and deliver the
Unit Certificates so authenticated and executed with the same effect as if such
successor Unit Agent had itself authenticated and executed such Units.
SECTION 712. Preservation of Information; Communications to Holders.
(a) The Unit Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by the Unit
Agent in its capacity as Unit Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Unit Agent, and furnish to the Unit Agent reasonable proof
that each such applicant has owned a Unit for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Agreement or under the Units and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit, then
the Unit Agent shall, within five Business Days after the receipt of such
application, afford such applicants access to the information preserved at the
time by the Unit Agent in accordance with Section 712(a).
(c) Every Holder of Units, by receiving and holding the Unit
Certificates evidencing the same, agrees with the Company and the Unit Agent
that none of the Company, the Unit Agent nor any agent of any of them shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with Section 712(b), regardless
of the source from which such information was derived.
SECTION 713. No Obligations of Unit Agent.
Except to the extent otherwise provided in this Agreement, the Unit
Agent assumes no obligations and shall not be subject to any liability under
this Agreement or any Purchase Contract in respect of the obligations of the
Holder of any Unit thereunder. The Company agrees, and each Holder of a Unit
Certificate, by his acceptance thereof, shall be deemed to have agreed, that the
Unit Agent's execution of the Unit Certificates on behalf of the Holders shall
be solely as agent and attorney-in-fact for the Holders, and that the Unit Agent
shall have no obligation to perform such Purchase Contracts on behalf of the
Holders, except to the extent expressly provided in Article Five hereof.
SECTION 714. Tax Compliance.
(a) The Unit 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 Units or (ii) the issuance, delivery, holding,
transfer, redemption or exercise of rights under the Units. Such compliance
shall include, without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
(b) The Unit Agent shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 701(a)(ii) hereof.
(c) The Unit Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available, on
written request, to the Company or to its authorized representative within a
reasonable period of time after receipt of such request.
ARTICLE EIGHT
SUPPLEMENTAL AGREEMENTS
SECTION 801. Supplemental Agreements without Consent of Holders.
Without the consent of any Holders, the parties to any Principal
Agreement, at any time and from time to time, may enter into one or more
agreements supplemental hereto or thereto, in form satisfactory to such parties,
for any of the following purposes:
(1) to evidence the succession of another Person to any such
party, and the assumption by any such successor of the covenants of
such party herein or therein and under the Units; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Unit Agent; or
(4) to make provision with respect to the rights of Holders
pursuant to the requirements of Section 506(b); or
(5) to cure any ambiguity, to correct or supplement any
provisions herein or therein which may be inconsistent with any other
provisions herein or therein, or to make any other provisions with
respect to matters or questions arising under such Principal Agreement,
provided such action pursuant to this Clause (5) shall not adversely
affect the interests of the Holders.
SECTION 802. Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority of the
Outstanding Units (or, with respect to modifications that adversely affect only
the Holders of Normal Units or only the Holders of Stripped Units, with the
consent of the Holders of not less than a majority of the Outstanding Units that
comprise Normal Units or Stripped Units, as the case may be), by Act of said
Holders delivered to the parties to any Principal Agreement, such parties (when
authorized, in the case of the Company, by a Board Resolution) may enter into an
agreement or agreements supplemental to such Principal Agreement for the purpose
of modifying in any manner the terms of the Units, the provisions of such
Principal Agreement or the rights of the Holders in respect of the Units;
provided, however, that no such supplemental agreement shall, without the
consent of the Holder of each Outstanding Unit affected thereby,
(1) extend any payment date;
(2) change the amount or type of Pledged Securities underlying
a Unit, impair the right of the Holder of any Unit to receive interest
payments on the underlying Pledged Securities or otherwise adversely
affect the Holder's rights in or to such Pledged Securities (including
the rights of Holders of Normal Units to effect a Stripped Unit
Creation and the rights of holders of Stripped Units to effect a Normal
Unit Recreation);
(3) reduce the Contract Fees or other amounts receivable by
Holders in respect of Units or increase amounts payable by Holders in
respect of Units or change any place where, or the coin or currency in
which, any Contract Fees or other amounts receivable or payable in
respect of Units are payable;
(4) impair the right to institute suit for the enforcement of
any Purchase Contract;
(5) reduce the number of shares of Common Stock to be
purchased pursuant to any Purchase Contract, increase the price to
purchase shares of Common Stock upon settlement of any Purchase
Contract, change the Final Settlement Date or otherwise adversely
affect the Holder's rights under any Purchase Contract; or
(6) reduce the percentage of the Outstanding Units the consent
of whose Holders is required for any such supplemental agreement.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any supplemental
agreement to any Principal Agreement. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental agreement, whether or not such
Holders remain Holders after such record date; provided, that unless such
consent shall have become effective by virtue of the requisite percentage having
been obtained prior to the date which is 90 days after such record date, any
such consent previously given shall automatically and without further action by
any Holder be cancelled and of no further effect.
SECTION 803. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by the Principal Agreements, the Unit Agent shall be
entitled to receive and (subject to Section 701) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental agreement is authorized or permitted by this Agreement. The Unit
Agent may, but shall not be obligated to, enter into any such supplemental
agreement which affects the Unit Agent's own rights, duties or immunities under
this Agreement or otherwise.
SECTION 804. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article,
the relevant Principal Agreement shall be modified in accordance therewith, and
such supplemental agreement shall form a part of such Principal Agreement for
all purposes; and every Holder of Unit Certificates theretofore or thereafter
authenticated, executed on behalf of the Holder and delivered hereunder shall be
bound thereby.
SECTION 805. Reference to Supplemental Agreements.
Unit 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 Unit Agent, bear a notation in form
approved by the Unit Agent as to any matter provided for in such supplemental
agreement. If the Company shall so determine, new Unit Certificates so modified
as to conform, in the opinion of the Unit 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 Unit Agent
in exchange for Outstanding Unit Certificates evidencing the same number of
Normal Units or Stripped Units, as the case may be.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 901. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except under Certain Conditions.
The Company covenants that it will not merge or consolidate with any
other Person or sell or convey all or substantially all of its assets to any
Person, except that the Company may merge or consolidate with, or sell or convey
all or substantially all of its assets to, any other Person, provided that (a)
the Company shall be the continuing corporation, or the successor (if other than
the Company) shall be a corporation organized and existing under the laws of the
United States of America or a State thereof and such corporation shall assume
the obligations of the Company under the Purchase Contracts and the Pledge
Agreement by one or more supplemental agreements in form satisfactory to the
Unit Agent and, in the case of the Pledge Agreement, the Collateral Agent,
executed and delivered to the Unit Agent, and, in the case of the Pledge
Agreement, the Collateral Agent by such corporation, and (b) the Company or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale or conveyance, be in default in the
performance of any covenant or condition under any Principal Agreement or under
any of the Units.
SECTION 902. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale or conveyance and upon
any such assumption by the successor corporation, such successor corporation
shall succeed to and be substituted for the Company with the same effect as if
it had been named in the Principal Agreements as the Company. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of The Southern Company, any or all of the Unit Certificates
evidencing Units issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Unit 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 Unit Agent shall
authenticate and execute on behalf of the Holders and deliver any Unit
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Unit Agent for authentication and execution, and
any Unit Certificate evidencing Units which such successor corporation
thereafter shall cause to be signed and delivered to the Unit Agent for that
purpose. All the Unit Certificates so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Unit Certificates theretofore
or thereafter issued in accordance with the terms of this Agreement as though
all of such Unit Certificates had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance such
change in phraseology and form (but not in substance) may be made in the Unit
Certificates evidencing Units thereafter to be issued as may be appropriate.
SECTION 903. Opinion of Counsel to Unit Agent.
The Unit Agent, subject to Sections 701 and 703, may receive an Opinion
of Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article.
ARTICLE TEN
COVENANTS
SECTION 1001. Performance under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders from
time to time of the Units that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York an office or agency where Unit Certificates may be presented or surrendered
for acquisition of shares of Common Stock upon settlement and for transfer of
Pledged Securities upon occurrence of a Termination Event, where Unit
Certificates may be surrendered for registration of transfer or exchange or for
effecting Stripped Unit Creations and Normal Unit Recreations, where payment of
Contract Fees payable by the Company to the Holders may be made and where
notices and demands to or upon the Company in respect of the Units and this
Agreement may be served. The Company will give prompt written notice to the Unit
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 Unit 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 Unit 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 Unit 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 Unit Agent of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates as the place of payment for the Units the
Corporate Trust Office and appoints the Unit Agent at its Corporate Trust Office
as paying agent in such city.
SECTION 1003. Company to Reserve Common Stock.
The Company shall at all times prior to the Final Settlement Date
reserve and keep available, free from preemptive rights, out of its authorized
but unissued Common Stock the maximum number of shares of Common Stock issuable
against tender of payment in respect of all Purchase Contracts underlying the
Units (assuming for this purpose that the Settlement Price is the Initial Stock
Price).
SECTION 1004. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be
issued against tender of payment in respect of the Purchase Contracts underlying
the Units will, upon issuance, be newly issued (i.e., not issued out of treasury
shares) and be duly authorized, validly issued, fully paid and nonassessable.
SECTION 1005. Statements of Officers of the Company as to Default.
The Company will deliver to the Unit Agent, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions hereof, and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
THE SOUTHERN COMPANY
By:
Title:
Name:
THE FIRST NATIONAL BANK OF CHICAGO,
as Unit Agent
By:
Title
Name:
EXHIBIT A
Form of Normal Unit Certificate
THE SOUTHERN COMPANY
o% Adjustable Conversion-rate Equity Security Units
(Stated Amount $50 per Normal Unit)
CUSIP No. ______
No. ______ _______ Normal Units
This Unit Certificate certifies that is the registered Holder of the
number of Normal Units set forth above. Each Normal Unit represents the right to
purchase Common Stock and receive Contract Fees under a Purchase Contract with
The Southern Company, a Delaware corporation (the "Company"), together with
ownership of the U.S. Treasury Notes Due 2002 pledged to secure the obligations
referred to in (a) below, subject to (a) the obligations owed to the Company
under such Purchase Contract, and (b) the pledge arrangements securing the
foregoing obligations.
Each Purchase Contract evidenced hereby is governed by a Master Unit
Agreement, dated as of o o, 1999 (the "Master Unit Agreement"), between the
Company and The First National Bank of Chicago, as unit agent (herein called the
"Unit Agent"). All terms used herein which are not defined herein and which are
defined in the Master Unit Agreement have the meanings set forth therein. The
Pledge of the Pledged Securities evidenced hereby is governed by the Pledge
Agreement. Reference is hereby made to the Master Unit Agreement and the Pledge
Agreement, and any supplemental agreements thereto, for a description of the
respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Unit Agent, the Company, the Collateral Agent and the Holders.
The summary contained herein is qualified in its entirety by the provisions of
the Principal Agreements, and the Principal Agreements shall govern the rights
of the parties to the extent that there is any conflict between such summary and
such provisions.
Each Purchase Contract evidenced hereby obligates the Holder of this
Unit Certificate to purchase, and the Company to sell, on o o, 2002 (the "Final
Settlement Date"), for cash in an amount equal to $50, Common Stock at a price
per share equal to the Settlement Price (i.e., a number of shares of Common
Stock equal to $50 divided by the Settlement Price); provided, however, that the
number of shares of Common Stock that will be purchased and sold per Purchase
Contract will be rounded upward or downward to the nearest 1/10,000th of a share
or, if there is not a nearest 1/10,000th of a share, to the next higher
1/10,000th of a share. "Settlement Price" means the Applicable Market Value,
except that (a) if the Applicable Market Value is below the Initial Stock Price,
"Settlement Price" means the Initial Stock Price, and (b) if the Applicable
Market Value is above the Threshold Appreciation Price, "Settlement Price" means
the Threshold Appreciation Price. As provided in Section 509 in the Master Unit
Agreement, no fractional shares of Common Stock will be issued upon settlement
of Purchase Contracts. On the Final Settlement Date, the Collateral Agent will,
pursuant to the terms of the Pledge Agreement, deliver to the Company all
payments it shall have received in respect of principal of the Pledged
Securities underlying the Units, in full satisfaction of the obligation of the
Holder to purchase Common Stock on that date. The Company shall not be obligated
to issue any shares of Common Stock in respect of the Purchase Contracts or
deliver any certificates therefor to the Holder unless it shall have received
payment in full of the aggregate purchase price for the shares of Common Stock
to be purchased thereunder in the manner herein set forth.
In the event of the occurrence of a Reorganization Event prior to the
Final Settlement Date, the Holder shall have the right to accelerate and settle
the Purchase Contracts evidenced by this Unit Certificate prior to the Final
Settlement Date as set forth in the Master Unit Agreement.
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, all obligations and
rights to pay or receive any accrued or deferred Contract Fees or to settle such
Purchase Contracts, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Unit Agent or the Company,
if, on or prior to the Final Settlement Date, a Termination Event shall have
occurred. Upon and after the occurrence of a Termination Event, this Unit
Certificate shall thereafter represent only the right to receive the Pledged
Securities forming a part of the Units theretofore evidenced hereby in
accordance with the provisions of the Master Unit Agreement and the Pledge
Agreement.
The Company shall pay on each o o and o o, commencing o o, 1999, to and
including the Final Settlement Date, the Contract Fee.
Payments due to the Holder in respect of the Normal Units evidenced
hereby will be payable to the Person in whose name this Unit Certificate (or a
Predecessor Unit Certificate) is registered at the close of business on the
Record Date next preceding the relevant payment date.
The transfer of any Unit Certificate will be registered and Unit
Certificates may be exchanged as provided in the Master Unit Agreement. The Unit
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents permitted by the Master Unit Agreement. No
service charge shall be required for any such registration of transfer or
exchange, but the Company and the Unit Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Except as provided in the Master Unit Agreement in connection with a
Stripped Unit Creation, for so long as the Purchase Contract underlying a Normal
Unit remains in effect, such Normal Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Normal
Unit in respect of the Pledged Securities and Purchase Contract constituting
such Normal Unit may be transferred and exchanged only as an integrated Normal
Unit.
Upon registration of transfer of this Unit Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts evidenced hereby and by the
Pledge Agreement, and the transferor shall be released from such obligations.
The Company covenants and agrees, and the Holder, by his acceptance hereof,
likewise covenants and agrees, to be bound by the provisions of this paragraph.
The Holder of this Unit Certificate, by his acceptance hereof,
irrevocably authorizes the Unit Agent to enter into and perform the related
Purchase Contracts evidenced hereby on his behalf as his attorney-in-fact,
agrees to be bound by the terms and provisions thereof, covenants and agrees to
perform his obligations under such Purchase Contracts, consents to the
provisions of the Principal Agreements, irrevocably authorizes the Unit Agent to
enter into and perform the Pledge Agreement on his behalf as his
attorney-in-fact, and consents to and agrees to be bound by the Pledge of the
Pledged Securities evidenced hereby pursuant to the Pledge Agreement.
Subject to certain exceptions, the provisions of the Principal
Agreements may be amended with the consent of the Holders of at least a majority
of the Outstanding Units or, if the amendment affects only the Holders of the
Normal Units or only the Holders of the Stripped Units, at least a majority of
the Outstanding Units comprising Normal Units or Stripped Units, as the case may
be.
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 THEREOF.
The Company, the Unit Agent and any agent of the Company or the Unit
Agent may treat the Person in whose name this Unit Certificate is registered as
the owner of the Normal Units evidenced hereby for the purpose of receiving
payments of distributions or interest on the Pledged Securities, receiving the
rights and performing the obligations under 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 Unit Agent nor any such agent shall be affected by notice to the contrary.
THE PURCHASE CONTRACTS SHALL NOT, PRIOR TO THE SETTLEMENT THEREOF,
ENTITLE THE HOLDER TO ANY OF THE RIGHTS OF A HOLDER OF SHARES OF COMMON STOCK.
Copies of the Principal Agreements are available for inspection at the
offices of the Unit Agent.
Unless the certificate of authentication hereon has been executed by
the Unit Agent by manual signature, this Unit Certificate shall not be entitled
to any benefit under the Principal Agreements or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company and the Holder hereby agree to their
respective obligations under the Purchase Contracts evidenced by this
instrument, and the Holder hereby acknowledges that the Pledged Securities
evidenced by this instrument are subject to the Pledge under the Pledge
Agreement.
THE SOUTHERN COMPANY
By:_________________________________
Attest: _______________________
HOLDER SPECIFIED ABOVE
By: The First National Bank of Chicago,
as Attorney-in-Fact of such Holder
By:_________________________________
Dated:
Unit Agent's Certificate of Authentication
This is one of the Unit Certificates referred to in the within
mentioned Master Unit Agreement.
The First National Bank of Chicago,
as Unit Agent
By: __________________________
Settlement Instructions
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on an Early Settlement Date or on or after the
Final Settlement Date of the Purchase Contracts underlying the number of Normal
Units evidenced by this Unit Certificate be registered in the name of, and
delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: _________________________ ____________________________________
Signature*
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please print Please print name and address of
such Person's name and address: Registered Holder:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Common Stock is to be delivered other than to, and in
the name of, the registered Holder.
Request to Create Stripped Units
The undersigned Holder directs that (a) the Pledged Securities
underlying the number of Normal Units indicated below (which number does not
exceed the number of Normal Units evidenced by this Unit Certificate) be
released from the Pledge and registered in the name of, and delivered to, the
undersigned at the address indicated below unless a different name and address
have been indicated below and (b) a corresponding number of Stripped Units be
registered in the name of, and delivered to, the undersigned at the address
indicated below unless a different name and address have been indicated below.
If the released Pledged Securities or the Stripped Units are to be registered in
the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
The undersigned confirms that the requisite U.S. Treasury STRIPS Due
2002 have been delivered to the Collateral Agent.
Dated: _________________________ ____________________________________
Signature*
If released Pledged Securities are to be registered in REGISTERED HOLDER
the name of and delivered to a Person other than the
Holder, please print Please print name and address of
such Person's name and address: Registered Holder:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
If Stripped Units are to be registered in the name of and delivered to a Person
other than the Holder, please print such Person's name and address:
Name
Address
Social Security or other Taxpayer
Identification Number, if any
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Pledged Securities or Stripped Units are to be
delivered other than to, and in the name of, the registered Holder.
Election to Settle Early
The undersigned Holder hereby irrevocably exercises its Early
Settlement Right in accordance with the terms of the Master Unit Agreement with
respect to the Purchase Contracts underlying the number of Units evidenced by
this Unit Certificate specified below. The option to effect Early Settlement may
be exercised only with respect to Purchase Contracts underlying Units 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
Unit Certificate representing any Units 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 Securities deliverable upon such Early Settlement will
be transferred in accordance with the transfer instructions set forth below. If
the released Pledged Securities or the share of Common Stock are to be
registered in the name of a Person other than the undersigned, the undersigned
will pay any transfer tax payable incident thereto.
Dated: _________________________ ____________________________________
Signature*
Number of Units evidenced hereby as to which Early Settlement of the related
Purchase Contracts is being elected: __________.
If released Pledged Securities and shares of Common Stock REGISTERED HOLDER are
to be registered in the name of and delivered to a Person other than the Holder,
please print such Person's Please print name and address of name and address:
Registered Holder:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Pledged Securities or Stripped Units are to be
delivered other than to, and in the name of, the registered Holder.
Transfer Instructions for Pledged Securities Transferable Upon Early Settlement:
----------------------------------------
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EXHIBIT B
Form of Stripped Unit Certificate
THE SOUTHERN COMPANY
o% Adjustable Conversion-rate Equity Security Units
(Stated Amount $50 per Unit)
CUSIP No. _______
No. _____ _____ Stripped Units
This Unit Certificate certifies that is the registered Holder of the
number of Stripped Units set forth above. Each Stripped Unit represents the
right to purchase Common Stock under a Purchase Contract with The Southern
Company, a Delaware corporation (the "Company"), together with ownership of the
Treasury Securities pledged to secure the obligations referred to in (a) below,
subject to (a) the obligations owed to the Company under such Purchase Contract
and (b) the pledge arrangements securing the foregoing obligations.
Each Purchase Contract evidenced hereby is governed by a Master Unit
Agreement, dated as of o o, 1999 (the "Master Unit Agreement"), between the
Company and The National Bank of Chicago, as unit agent (herein called the "Unit
Agent"). All terms used herein which are not defined herein and which are
defined in the Master Unit Agreement have the meanings set forth therein. The
Pledge of the Pledged Securities evidenced hereby is governed by the Pledge
Agreement. Reference is hereby made to the Master Unit Agreement and the Pledge
Agreement, and any supplemental agreements thereto, for a description of the
respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Unit Agent, the Company, the Collateral Agent and the Holders.
The summary contained herein is qualified in its entirety by the provisions of
the Principal Agreements, and the Principal Agreements shall govern the rights
of the parties to the extent that there is any conflict between such summary and
such provisions.
Each Purchase Contract evidenced hereby obligates the Holder of this
Unit Certificate to purchase, and the Company to sell, on o o, 2002 (the "Final
Settlement Date"), for cash in an amount equal to $50, Common Stock at a price
per share equal to the Settlement Price (i.e., a number of shares of Common
Stock equal to $50 divided by the Settlement Price); provided, however, that the
number of shares of Common Stock that will be purchased and sold per Purchase
Contract will be rounded upward or downward to the nearest 1/10,000th of a share
or, if there is not a nearest 1/10,000th of a share, to the next higher
1/10,000th of a share. "Settlement Price" means the Applicable Market Value,
except that (a) if the Applicable Market Value is below the Initial Stock Price,
"Settlement Price" means the Initial Stock Price, and (b) if the Applicable
Market Value is above the Threshold Appreciation Price, "Settlement Price" means
the Threshold Appreciation Price. As provided in Section 509 in the Master Unit
Agreement, no fractional shares of Common Stock will be issued upon settlement
of Purchase Contracts. On the Final Settlement Date, the Collateral Agent will,
pursuant to the terms of the Pledge Agreement, deliver to the Company all
payments it shall have received in respect of principal of the Pledged
Securities underlying the Units, in full satisfaction of the obligation of the
Holder to purchase Common Stock on that date. The Company shall not be obligated
to issue any shares of Common Stock in respect of the Purchase Contracts or
deliver any certificates therefor to the Holder unless it shall have received
payment in full of the aggregate purchase price for the shares of Common Stock
to be purchased thereunder in the manner herein set forth.
In the event of the occurrence of a Reorganization Event prior to the
Final Settlement Date, the Holder shall have the right to accelerate and settle
the Purchase Contracts evidenced by this Unit Certificate prior to the Final
Settlement Date as set forth in the Master Unit Agreement.
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, all obligations and
rights to pay or receive any accrued or deferred Contract Fees or to settle such
Purchase Contracts, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Unit Agent or the Company,
if, on or prior to the Final Settlement Date, a Termination Event shall have
occurred. Upon and after the occurrence of a Termination Event, this Unit
Certificate shall thereafter represent only the right to receive the Pledged
Securities forming a part of the Units theretofore evidenced hereby in
accordance with the provisions of the Master Unit Agreement and the Pledge
Agreement.
The Company shall pay on each o o and o o, commencing o o, 1999, to and
including the Final Settlement Date, the Contract Fee.
Payments due to the Holder in respect of the Stripped Units evidenced
hereby will be payable to the Person in whose name this Unit Certificate (or a
Predecessor Unit Certificate) is registered at the close of business on the
Record Date next preceding the relevant payment date.
The transfer of any Unit Certificate will be registered and Unit
Certificates may be exchanged as provided in the Master Unit Agreement. The Unit
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents permitted by the Master Unit Agreement. No
service charge shall be required for any such registration of transfer or
exchange, but the Company and the Unit Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. For so long as the Purchase Contract underlying a Stripped Unit
remains in effect, such Stripped Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Stripped
Unit in respect of the Pledged Securities and Purchase Contract constituting
such Stripped Unit may be transferred and exchanged only as an integrated
Stripped Unit.
Upon registration of transfer of this Unit Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts evidenced hereby and by the
Pledge Agreement, and the transferor shall be released from such obligations.
The Company covenants and agrees, and the Holder, by his acceptance hereof,
likewise covenants and agrees, to be bound by the provisions of this paragraph.
The Holder of this Unit Certificate, by his acceptance hereof,
irrevocably authorizes the Unit Agent to enter into and perform the related
Purchase Contracts evidenced hereby on his behalf as his attorney-in-fact,
agrees to be bound by the terms and provisions thereof, covenants and agrees to
perform his obligations under such Purchase Contracts, consents to the
provisions of the Principal Agreements, irrevocably authorizes the Unit Agent to
enter into and perform the Pledge Agreement on his behalf as his
attorney-in-fact, and consents to and agrees to be bound by the Pledge of the
Pledged Securities evidenced hereby pursuant to the Pledge Agreement.
Subject to certain exceptions, the provisions of the Principal
Agreements may be amended with the consent of the Holders of at least a majority
of the Outstanding Units or, if the amendment affects only the Holders of the
Normal Units or only the Holders of the Stripped Units, at least a majority of
the Outstanding Units comprising Normal Units or Stripped Units, as the case may
be.
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 CONFLICT OF LAWS PRINCIPLES THEREOF.
The Company, the Unit Agent and any agent of the Company or the Unit
Agent may treat the Person in whose name this Unit Certificate is registered as
the owner of the Stripped Units evidenced hereby for the purpose of receiving
payments of distributions or interest on the Pledged Securities, receiving the
rights and performing the obligations under 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 Unit Agent nor any such agent shall be affected by notice to the contrary.
THE PURCHASE CONTRACTS SHALL NOT, PRIOR TO THE SETTLEMENT THEREOF,
ENTITLE THE HOLDER TO ANY OF THE RIGHTS OF A HOLDER OF SHARES OF COMMON STOCK.
Copies of the Principal Agreements are available for inspection at the
offices of the Unit Agent.
Unless the certificate of authentication hereon has been executed by
the Unit Agent by manual signature, this Unit Certificate shall not be entitled
to any benefit under the Principal Agreements or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company and the Holder hereby agree to their
respective obligations under the Purchase Contracts evidenced by this
instrument, and the Holder hereby acknowledges that the Pledged Securities
evidenced by this instrument are subject to the Pledge under the Pledge
Agreement.
THE SOUTHERN COMPANY
By:_________________________________
Attest: _______________________
HOLDER SPECIFIED ABOVE
By: The First National Bank of Chicago,
as Attorney-in-Fact of such Holder
By:_________________________________
Dated:
Unit Agent's Certificate of Authentication
This is one of the Unit Certificates referred to in the within
mentioned Master Unit Agreement.
The First National Bank of Chicago,
as Unit Agent
By: __________________________
Settlement Instructions
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Final Settlement Date of the
Purchase Contracts underlying the number of Stripped Units evidenced by this
Unit Certificate be registered in the name of, and delivered, together with a
check in payment for any fractional share, to the undersigned at the address
indicated below unless a different name and address have been indicated below.
If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated: _________________________ ____________________________________
Signature*
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please print Please print name and address of
such Person's name and address: Registered Holder:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Common Stock is to be delivered other than to, and in
the name of, the registered Holder.
Request to Recreate Normal Units
The undersigned Holder directs that (a) the Pledged Securities
underlying the number of Stripped Units indicated below (which number does not
exceed the number of Stripped Units evidenced by this Unit Certificate) be
released from the Pledge and registered in the name of, and delivered to, the
undersigned at the address indicated below unless a different name and address
have been indicated below and (b) a corresponding number of Normal Units be
registered in the name of, and delivered to, the undersigned at the address
indicated below unless a different name and address have been indicated below.
If the released Pledged Securities or the Normal Units are to be registered in
the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
The undersigned confirms that the requisite U.S. Treasury Securities
Due 2002 have been delivered to the Collateral Agent.
Dated: _________________________ ____________________________________
Signature*
If released Pledged Securities are to be registered in REGISTERED HOLDER
the name of and delivered to a Person other than the
Holder, please print Please print name and address of
such Person's name and address: Registered Holder:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
If Normal Units are to be registered in the name of and delivered to a Person
other than the Holder, please print such Person's name and address:
Name
Address
Social Security or other Taxpayer
Identification Number, if any
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Pledged Securities or Normal Units are to be
delivered other than to, and in the name of, the registered Holder.
Election to Settle Early
The undersigned Holder hereby irrevocably exercises its Early
Settlement Right in accordance with the terms of the Master Unit Agreement with
respect to the Purchase Contracts underlying the number of Units evidenced by
this Unit Certificate specified below. The option to effect Early Settlement may
be exercised only with respect to Purchase Contracts underlying Units 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
Unit Certificate representing any Units 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 Securities deliverable upon such Early Settlement will
be transferred in accordance with the transfer instructions set forth below. If
the released Pledged Securities or the share of Common Stock are to be
registered in the name of a Person other than the undersigned, the undersigned
will pay any transfer tax payable incident thereto.
Dated: _________________________ ____________________________________
Signature*
Number of Units evidenced hereby as to which Early Settlement of the related
Purchase Contracts is being elected: __________.
If released Pledged Securities and shares of Common Stock REGISTERED HOLDER are
to be registered in the name of and delivered to a Person other than the Holder,
please print such Person's Please print name and address of name and address:
Registered Holder:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Pledged Securities or Stripped Units are to be
delivered other than to, and in the name of, the registered Holder.
Transfer Instructions for Pledged Securities Transferable Upon Early Settlement
or a Termination Event:
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EXHIBIT C
Form of Pledge Agreement
