Exhibit 4.3
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DOMINION RESOURCES, INC.
and
JPMORGAN CHASE BANK
As Purchase Contract Agent
______________________
PURCHASE CONTRACT AGREEMENT
Dated as of March 20, 2002
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TABLE OF CONTENTS
Page
ARTICLE I Definitions and Other Provisions of General Application
Section 1.1. Definitions........................................................ 1
Section 1.2. Compliance Certificates and Opinions............................... 14
Section 1.3. Form of Documents Delivered to Purchase Contract Agent............. 15
Section 1.4. Acts of Holders; Record Dates...................................... 15
Section 1.5. Notices............................................................ 17
Section 1.6. Notice to Holders; Waiver.......................................... 17
Section 1.7. Effect of Headings and Table of Contents........................... 18
Section 1.8. Successors and Assigns............................................. 18
Section 1.9. Separability Clause................................................ 18
Section 1.10. Benefits of Agreement.............................................. 18
Section 1.11. Governing Law...................................................... 18
Section 1.12. Legal Holidays..................................................... 18
Section 1.13. Counterparts....................................................... 19
Section 1.14. Inspection of Agreement............................................ 19
ARTICLE II Certificate Forms
Section 2.1. Forms of Certificates Generally.................................... 19
Section 2.2. Form of Purchase Contract Agent's Certificate of Authentication.... 20
ARTICLE III The Securities
Section 3.1. Amount; Form and Denominations..................................... 20
Section 3.2. Rights and Obligations Evidenced by the Certificates............... 21
Section 3.3. Execution, Authentication, Delivery and Dating..................... 21
Section 3.4. Temporary Certificates............................................. 22
Section 3.5. Registration; Registration of Transfer and Exchange................ 23
Section 3.6. Book-Entry Interests............................................... 24
Section 3.7. Notices to Holders................................................. 25
Section 3.8. Appointment of Successor Clearing Agency........................... 25
Section 3.9. Definitive Certificates............................................ 25
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates................. 25
Section 3.11. Persons Deemed Owners.............................................. 26
Section 3.12. Cancellation....................................................... 27
Section 3.13. Creation of Treasury Units by Substitution of Treasury Securities.. 27
Section 3.14. Reestablishment of Corporate Units................................. 29
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event........ 30
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Section 3.16. No Consent to Assumption................................................ 30
ARTICLE IV The Senior Notes
Section 4.1. Interest Payments; Rights to Interest Preserved......................... 31
Section 4.2. Interest Rate Reset..................................................... 32
Section 4.3. Notice and Voting....................................................... 32
Section 4.4. Tax Event Redemption.................................................... 32
ARTICLE V The Purchase Contracts
Section 5.1. Purchase of Shares of Common Stock...................................... 33
Section 5.2. Contract Adjustment Payments............................................ 35
Section 5.3. [Intentionally omitted.]................................................ 36
Section 5.4. Payment of Purchase Price; Remarketing.................................. 36
Section 5.5. Issuance of Shares of Common Stock...................................... 42
Section 5.6. Adjustment of Settlement Rate........................................... 43
Section 5.7. Notice of Adjustments and Certain Other Events. ........................ 48
Section 5.8. Termination Event; Notice............................................... 49
Section 5.9. Early Settlement; Cash Settlement....................................... 49
Section 5.10. No Fractional Shares.................................................... 54
Section 5.11. Charges and Taxes....................................................... 54
ARTICLE VI Remedies
Section 6.1. Unconditional Right of Holders to Receive Contract Adjustment Payments
and to Purchase Shares of Common Stock.................................. 54
Section 6.2. Restoration of Rights and Remedies...................................... 55
Section 6.3. Rights and Remedies Cumulative.......................................... 55
Section 6.4. Delay or Omission Not Waiver............................................ 55
Section 6.5. Undertaking for Costs................................................... 55
Section 6.6. Waiver of Stay or Extension Laws........................................ 56
ARTICLE VII The Purchase Contract Agent
Section 7.1. Certain Duties and Responsibilities..................................... 56
Section 7.2. Notice of Default....................................................... 57
Section 7.3. Certain Rights of Purchase Contract Agent............................... 57
Section 7.4. Not Responsible for Recitals or Issuance of Securities.................. 58
Section 7.5. May Hold Securities..................................................... 58
Section 7.6. Money Held in Custody................................................... 58
Section 7.7. Compensation and Reimbursement.......................................... 59
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility................. 59
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Section 7.9. Resignation and Removal; Appointment of Successor............................... 59
Section 7.10. Acceptance of Appointment by Successor.......................................... 61
Section 7.11. Merger, Conversion, Consolidation or Succession to Business..................... 61
Section 7.12. Preservation of Information; Communications to Holders.......................... 61
Section 7.13. No Obligations of Purchase Contract Agent....................................... 62
Section 7.14. Tax Compliance.................................................................. 62
ARTICLE VIII Supplemental Agreements
Section 8.1. Supplemental Agreements Without Consent of Holders.............................. 63
Section 8.2. Supplemental Agreements With Consent of Holders................................. 63
Section 8.3. Execution of Supplemental Agreements............................................ 64
Section 8.4. Effect of Supplemental Agreements............................................... 64
Section 8.5. Reference to Supplemental Agreements............................................ 64
ARTICLE IX Merger, Consolidation, Share Exchange, Sale or Conveyance
Section 9.1. Covenant Not to Merge, Consolidate, Enter into a Share Exchange,
Sell or Convey Property Except Under Certain Conditions....................... 65
Section 9.2. Rights and Duties of Successor Corporation...................................... 65
Section 9.3. Officers' Certificate and Opinion of Counsel Given to Purchase Contract Agent... 66
ARTICLE X Covenants
Section 10.1. Performance Under Purchase Contracts............................................ 66
Section 10.2. Maintenance of Office or Agency................................................. 66
Section 10.3. Company to Reserve Common Stock................................................. 67
Section 10.4. Covenants as to Common Stock.................................................... 67
Section 10.5. Statements of Officers of the Company as to Default............................. 67
Section 10.6. ERISA .......................................................................... 67
EXHIBITS
EXHIBIT A Form of Corporate Unit Certificate
EXHIBIT B Form of Treasury Unit Certificate
EXHIBIT C Notice from Holder to Purchase Contract Agent
(Election for Creation of Treasury Units or Recreation of
Corporate Units)
EXHIBIT D Instruction to Purchase Contract Agent
EXHIBIT E Notice from Purchase Contract Agent to Holders
(Transfer of Collateral upon Occurrence of a Termination Event)
EXHIBIT F Notice to Settle by Cash
EXHIBIT G Notice from Purchase Contract Agent to Collateral Agent and
Indenture Trustee (Settlement of Purchase Contract through
Remarketing)
EXHIBIT H Notice from Holder to Indenture Trustee
(Election to Tender for Purchase Senior Notes in the Remarketing)
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PURCHASE CONTRACT AGREEMENT, dated as of March 20, 2002, between
DOMINION RESOURCES, INC., a Virginia corporation (the "Company"), and JPMORGAN
CHASE BANK, a New York banking corporation, acting as purchase contract agent
for the Holders of Securities from time to time (the "Purchase Contract Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Securities.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company and authenticated, executed on behalf
of the Holders and delivered by the Purchase Contract Agent, as provided in this
Agreement, the valid obligations of the Company, and to constitute these
presents a valid agreement of the Company, in accordance with its terms, have
been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1. Definitions.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular, and
nouns and pronouns of the masculine gender include the feminine and neuter
genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(d) the following terms have the meanings given to them in this
Section 1.1(d):
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Adjusted Contract Adjustment Payment Rate" means, with respect to
any Reset Transaction, the rate per annum that is the arithmetic average of the
rates quoted by two Reference Dealers selected by the Company as the rate at
which Contract Adjustment Payments should accrue so that the fair market value,
expressed in dollars, of a Corporate Unit immediately after the later of
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(i) public announcement of such Reset Transaction or (ii) public announcement of
a change in dividend policy in connection with such Reset Transaction will equal
the average Trading Price of a Corporate Unit for the 20 Trading Days
immediately preceding the date of public announcement of such Reset Transaction;
provided that the Adjusted Contract Adjustment Payment Rate shall not be less
than 3.00% per annum.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Affiliated Person" with respect to any specified Person means any
other Person that is an Affiliate of such specified Person.
"Agreement" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning set forth in Section
5.1.
"applicants" has the meaning set forth in Section 7.12(b).
"Authorized Newspaper" has the meaning set forth in the Indenture.
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform system
of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry Interest, a
Person who is the beneficial owner of such Book-Entry Interest as reflected on
the books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Board of Directors" means the board of directors of the Company
or a duly authorized committee of that board or two or more Senior Officers of
the Company, acting jointly.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of each of which has been certified by the Secretary or an
Assistant Secretary of the Company, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification
and delivered to the Purchase Contract Agent.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 3.6.
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"Business Day" means any day other than (i) a Saturday or Sunday
or a day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (ii) a day on which the
Indenture Trustee is closed for business; provided that for purposes of the
second paragraph of Section 1.12 only, the term "Business Day" shall also be
deemed to exclude any day on which trading on the New York Stock Exchange, Inc.
is closed or suspended.
"Cash Settlement" has the meaning set forth in Section
5.9(B)(a)(i).
"Certificate" means a Corporate Unit Certificate or a Treasury
Unit Certificate.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Securities and in whose name, or in the name of a nominee of
that organization, shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Securities.
Initially, DTC shall be the Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Price" has the meaning set forth in Section 5.1.
"Code" means the Internal Revenue Code of 1986, as amended, and
the rules and regulations promulgated thereunder.
"Collateral" has the meaning set forth in Section 1 of the Pledge
Agreement.
"Collateral Account" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Collateral Agent" means Bank One Trust Company, N.A., as
Collateral Agent under the Pledge Agreement until a successor Collateral Agent
shall have become such pursuant to the applicable provisions of the Pledge
Agreement, and thereafter "Collateral Agent" shall mean the Person who is then
the Collateral Agent thereunder.
"Collateral Substitution" means the substitution of Treasury
Securities, for a Holder's Senior Notes, pursuant to Section 3.13 of this
Agreement and Section 5.2 of the Pledge Agreement, and the substitution of a
Holder's Senior Notes for Treasury Securities pursuant to Section 3.14 of this
Agreement and Section 5.3 of the Pledge Agreement.
"Common Stock" means the common stock, no par value per share, of
the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such pursuant
to the applicable provision of this Agreement, and thereafter "Company" shall
mean such successor.
"Constituent Person" has the meaning set forth in Section 5.6(b).
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"Contract Adjustment Payments" means the payments payable by the
Company on the Payment Dates in respect of each Purchase Contract, equal to (a)
if a Reset Transaction has not occurred, 3.00% per annum of the Stated Amount or
(b) following the occurrence of a Reset Transaction, the Adjusted Contract
Adjustment Payment Rate related to such Reset Transaction until any succeeding
Reset Transaction shall occur, in either case computed (i) for any full
quarterly period on the basis of a 360-day year of twelve 30-day months, (ii)
for any period shorter than a full quarterly period for which such payments are
calculated, on the basis of a 30-day month and (iii) for periods of less than a
month, the actual number of days elapsed per 30-day month.
"Corporate Trust Office" means the office of the Purchase Contract
Agent at which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at 000 Xxxx
00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Institutional
Trust Services.
"Corporate Unit" means the collective rights and obligations of a
Holder of a Corporate Unit Certificate in respect of the Senior Notes or, if
substituted therefor, in respect of the Treasury Portfolio Interest, in each
case, subject to the Pledge thereof, and the related Purchase Contract.
"Corporate Unit Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Corporate Units
specified on such certificate.
"Corporate Unit Register" and "Corporate Unit Registrar" have the
respective meanings specified in Section 3.5.
"Coupon Rate" means the percentage rate per annum at which each
Senior Note will bear interest initially.
"Current Market Price" has the meaning specified in Section
5.6(a)(8).
"Depositary" means DTC until another Clearing Agency becomes its
successor.
"Dividend Yield" means, with respect to any security for any
period, the dividends paid or proposed to be paid pursuant to an announced
dividend policy on such security for such period divided by, if with respect to
dividends paid on such security, the average Closing Price of such security
during such period and, if with respect to dividends so proposed to be paid on
such security, the Closing Price of such security on the effective date of the
related Reset Transaction.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Early Settlement" has the meaning set forth in Section 5.9(A)(a).
"Early Settlement Amount" has the meaning set forth in Section
5.9(A)(a).
"Early Settlement Date" has the meaning set forth in Section
5.9(A)(a).
"Early Settlement Rate" has the meaning set forth in Section
5.9(A)(b).
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"Election Date" means February 9, 2006, which is the fourth
Business Day prior to the Initial Remarketing Date.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Expiration Date" has the meaning set forth in Section 1.4(e).
"Expiration Time" has the meaning set forth in Section 5.6(a)(6).
"Failed Remarketing" has the meaning set forth in Section 5.4(d).
"Final Remarketing" has the meaning set forth in Section 2(d) of
the Remarketing Agreement.
"Final Remarketing Date" has the meaning set forth in Section 2(d)
of the Remarketing Agreement.
"Global Certificate" means a Certificate that evidences all or
part of the Securities and is registered in the name of a Clearing Agency or a
nominee thereof.
"Holder" means, with respect to a Security, the Person in whose
name the Security evidenced by a Corporate Unit Certificate and/or a Treasury
Unit Certificate is registered in the related Corporate Unit Register and/or the
Treasury Unit Register, as the case may be; provided, however, that in
determining whether the Holders of the requisite number of Corporate Units
and/or Treasury Units have Acted on any matter, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Security
remains in the form of one or more Global Certificates and if the Clearing
Agency which is the holder of such Global Certificate has sent an omnibus proxy
assigning voting rights to the Clearing Agency Participants to whose accounts
the Securities are credited on the applicable record date, the term "Holder"
shall mean such Clearing Agency Participant acting at the direction of the
Beneficial Owners.
"Indenture" means the Senior Indenture, dated as of June 1, 2000,
between the Company and the Indenture Trustee, as amended and supplemented from
time to time (including any provisions of the TIA that are deemed incorporated
therein and including the Supplemental Indenture), pursuant to which the Senior
Notes will be issued.
"Indenture Trustee" means JPMorgan Chase Bank (formerly known as
The Chase Manhattan Bank), a New York banking corporation, as trustee under the
Indenture, or any successor thereto.
"Initial Remarketing" has the meaning set forth in Section 2(c) of
the Remarketing Agreement.
"Initial Remarketing Date" has the meaning set forth in Section
2(c) of the
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Remarketing Agreement.
"Issuer Order" or "Issuer Request" means a written request or
order signed in the name of the Company by (i) either its Chief Executive
Officer, its President or one of its Vice Presidents and (ii) either its
Corporate Secretary or one of its Assistant Corporate Secretaries or its
Treasurer or one of its Assistant Treasurers, and delivered to the Purchase
Contract Agent.
"non-electing share" has the meaning set forth in Section 5.6(b).
"NYSE" has the meaning set forth in Section 5.1.
"Officers' Certificate" means a certificate signed by (i) either
the Chief Executive Officer, the President or one of the Vice Presidents and
(ii) either the Corporate Secretary or one of the Assistant Corporate
Secretaries or the Treasurer or one of the Assistant Treasurers, of the Company,
and delivered to the Purchase Contract Agent.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company (and who may be an employee of the Company), and who
shall be reasonably acceptable to the Purchase Contract Agent.
"Outstanding Securities" means, with respect to any Corporate
Units or Treasury Units and as of the date of determination, all Corporate Units
or Treasury Units evidenced by Certificates theretofore authenticated, executed
and delivered under this Agreement, except:
(1) If a Termination Event has occurred, (i) Treasury Units and
(ii) Corporate Units for which the underlying Treasury Securities, Senior
Notes or Treasury Portfolio, as the case may be, have been theretofore
deposited with the Purchase Contract Agent in trust for the Holders of such
Corporate Units;
(2) Corporate Units and Treasury Units evidenced by Certificates
theretofore cancelled by the Purchase Contract Agent or delivered to the
Purchase Contract Agent for cancellation or deemed cancelled pursuant to
the provisions of this Agreement; and
(3) Corporate Units and Treasury Units evidenced by Certificates
in exchange for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered pursuant to
this Agreement, other than any such Certificate in respect of which there
shall have been presented to the Purchase Contract Agent proof satisfactory
to it that such Certificate is held by a bona fide purchaser in whose hands
the Corporate Units or Treasury Units evidenced by such Certificate are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
number of the Corporate Units or Treasury Units have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Corporate Units
or Treasury Units owned by the Company or any Affiliate of the Company shall be
disregarded and deemed not to be Outstanding Securities, except that, in
determining whether the Purchase Contract Agent shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Corporate Units or Treasury Units which a Responsible Officer of
the Purchase Contract Agent knows to be so owned shall be so disregarded.
Corporate Units or Treasury Units so owned which have been pledged in good faith
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may be regarded as Outstanding Securities if the pledgee establishes to the
satisfaction of the Purchase Contract Agent the pledgee's right so to act with
respect to such Corporate Units or Treasury Units and that the pledgee is not
the Company or any Affiliate of the Company.
"Payment Date" means each February 15, May 15, August 15 and
November 15, commencing May 15, 2002.
"Permitted Investments" has the meaning set forth in Section 1 of
the Pledge Agreement.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof or any other entity of
whatever nature.
"Plan" means an employee benefit plan that is subject to ERISA, a
plan or individual retirement account that is subject to Section 4975 of the
Code or any entity whose assets are considered assets of any such plan.
"Pledge" means the pledge under the Pledge Agreement of the Senior
Notes, any Treasury Portfolio or any Treasury Securities, in each case
constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, by and among the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact for the Holders from time to time of the Securities, as the
same may be amended, modified or supplemented from time to time in accordance
with the terms thereof.
"Pledged Senior Notes" has the meaning set forth in Section 1 of
the Pledge Agreement.
"Pledged Treasury Portfolio Interest" has the meaning set forth in
Section 1 of the Pledge Agreement.
"Pledged Treasury Securities" has the meaning set forth in Section
1 of the Pledge Agreement.
"Predecessor Certificate" means a Predecessor Corporate Unit
Certificate or a Predecessor Treasury Unit Certificate.
"Predecessor Corporate Unit Certificate" of any particular
Corporate Unit Certificate means every previous Corporate Unit Certificate
evidencing all or a portion of the rights and obligations of the Company and the
Holder under the Corporate Units evidenced thereby; and, for the purposes of
this definition, any Corporate Unit Certificate authenticated and delivered
under Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Corporate Unit Certificate shall be deemed to evidence the same rights
and obligations of the Company and the Holder as the mutilated, destroyed, lost
or stolen Corporate Unit Certificate.
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"Predecessor Treasury Unit Certificate" of any particular Treasury
Unit Certificate means every previous Treasury Unit Certificate evidencing all
or a portion of the rights and obligations of the Company and the Holder under
the Treasury Units evidenced thereby; and, for the purposes of this definition,
any Treasury Unit Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Treasury Unit
Certificate shall be deemed to evidence the same rights and obligations of the
Company and the Holder as the mutilated, destroyed, lost or stolen Treasury Unit
Certificate.
"Primary Treasury Dealer" means a primary U.S. government
securities dealer in New York City.
"Proceeds" has the meaning set forth in Section 1 of the Pledge
Agreement.
"Purchase Contract" means, with respect to any Security, the
contract forming a part of such Security and obligating the Company to (i) sell,
and the Holder of such Security to purchase, shares of Common Stock and (ii) pay
the Holder Contract Adjustment Payments in each case on the terms and subject to
the conditions set forth in Article Five hereof.
"Purchase Contract Agent" means the Person named as the "Purchase
Contract Agent" in the first paragraph of this instrument until a successor
Purchase Contract Agent shall have become such pursuant to the applicable
provisions of this Agreement, and thereafter "Purchase Contract Agent" shall
mean such Person.
"Purchase Contract Settlement Date" means May 15, 2006.
"Purchase Contract Settlement Fund" has the meaning set forth in
Section 5.5.
"Purchase Price" has the meaning set forth in Section 5.1.
"Purchased Shares" has the meaning set forth in Section 5.6(a)(6).
"Quotation Agent" means (i) Xxxxxxx Xxxxx Xxxxxx Inc. and its
respective successors, provided, however, that if the foregoing shall cease to
be a Primary Treasury Dealer, the Company shall substitute therefor another
Primary Treasury Dealer or (ii) any other Primary Treasury Dealer selected by
the Company.
"Record Date" for the Contract Adjustment Payments payable on any
Payment Date means, as to any Global Certificate, the Business Day next
preceding such Payment Date, and as to any other Certificate, the fifteenth
Business Day prior to such Payment Date.
"Redemption Amount" means, for each Senior Note, the product of
(i) the principal amount of such Senior Note and (ii) a fraction whose numerator
is the applicable Redemption Treasury Portfolio Purchase Price and whose
denominator is the applicable Tax Event Redemption Principal Amount.
"Redemption Price" means the redemption price per Senior Note
equal to the Redemption Amount plus any accrued and unpaid interest on such
Senior Note to the date of
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redemption.
"Redemption Treasury Portfolio" means, in connection with a Tax
Event Redemption, (a) if the Tax Event Redemption Date occurs prior to the
Initial Remarketing Date or, in the event that there has not been a Successful
Initial Remarketing or Successful Subsequent Remarketing, prior to the Purchase
Contract Settlement Date, a portfolio of zero-coupon U.S. Treasury Securities
consisting of (i) principal or interest strips of U.S. Treasury Securities which
mature on or prior to the Purchase Contract Settlement Date in an aggregate
amount equal to the applicable Tax Event Redemption Principal Amount and (ii)
with respect to each scheduled interest payment date on the Senior Notes that
occurs after the Tax Event Redemption Date and on or before the Purchase
Contract Settlement Date, principal or interest strips of U.S. Treasury
Securities that mature on or prior to such date in an aggregate amount equal to
the aggregate interest payment that would be due on the applicable Tax Event
Redemption Principal Amount of the Senior Notes on such date, and (b) if the Tax
Event Redemption Date occurs on or after the Initial Remarketing Date or, in the
event that there has not been a Successful Initial Remarketing or a Successful
Subsequent Remarketing, on or after the Purchase Contract Settlement Date, a
portfolio of zero-coupon U.S. Treasury Securities consisting of (i) principal or
interest strips of U.S. Treasury Securities which mature on or prior to the
Stated Maturity in an aggregate amount equal to the applicable Tax Event
Redemption Principal Amount and (ii) with respect to each scheduled interest
payment date on the Senior Notes that occurs after the Tax Event Redemption
Date, interest strips of such U.S. Treasury Securities that mature on or prior
to such date in an aggregate amount equal to the aggregate interest payment that
would be due on the applicable Tax Event Redemption Principal Amount of the
Senior Notes on such date.
"Redemption Treasury Portfolio Purchase Price" means the lowest
aggregate price quoted by the Primary Treasury Dealer to the Quotation Agent on
the third Business Day immediately preceding the Tax Event Redemption Date for
the purchase of the Redemption Treasury Portfolio for settlement on the Tax
Event Redemption Date.
"Reference Dealer" means a dealer engaged in the trading of
convertible securities.
"Reference Price" has the meaning set forth in Section 5.1.
"Register" means the Corporate Unit Register and the Treasury Unit
Register.
"Registrar" means the Corporate Unit Registrar and the Treasury
Unit Registrar.
"Remarketing" means the remarketing of the Remarketing Senior
Notes pursuant to the Remarketing Procedures.
"Remarketing Agent" has the meaning set forth in Section 5.4(b).
"Remarketing Agreement" means the Remarketing Agreement, dated as
of the date hereof between the Company and the Remarketing Agent, as the same
may be amended, modified or supplemented from time to time in accordance with
the terms thereof.
"Remarketing Date" means the date of any Successful Remarketing.
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"Remarketing Fee" has the meaning set forth in Section 5.4(b).
"Remarketing Procedures" has the meaning specified in Section 1(b) of
the Remarketing Agreement.
"Remarketing Senior Notes" has the meaning set forth in Section
5.4(b).
"Remarketing Settlement Date" means the date of the settlement of any
Successful Remarketing, which will be three Business Days after such
Remarketing.
"Remarketing Value" means the sum of
(1) Unless the Remarketing occurs on the Final Remarketing Date, the value
on the Remarketing Date of U.S. Treasury securities that will mature or
pay, on or prior to the Payment Date falling on the Purchase Contract
Settlement Date, an amount of cash equal to the aggregate interest that is
scheduled to be payable on that Payment Date, on (i) the Senior Notes that
are included in Corporate Units and (ii) the Separated Senior Notes, in
each case, which are participating in the Remarketing, assuming for that
purpose that the interest rate on the Senior Notes is equal to the Coupon
Rate;
(2) the value on the Remarketing Date of U.S. Treasury securities that will
pay, on or prior to the Purchase Contract Settlement Date, an amount of
cash equal to the Stated Amount of (i) such Senior Notes that are included
in Corporate Units and (ii) the Separated Senior Notes, in each case, which
are participating in the Remarketing; and
(3) the Remarketing Fee;
provided that, for purposes of each of clauses (1) through (3) above, the
Remarketing Value shall be calculated on the assumptions that (i) the U.S.
Treasury securities are highly liquid securities and mature on or within 35
days prior to the Purchase Contract Settlement Date, as determined in good
faith by the Remarketing Agent in a manner intended to minimize the
Remarketing Value, and (ii) the U.S. Treasury securities are valued based
on the ask-side price of the Treasury securities at a time between 9:00
a.m. and 11:00 a.m. (New York City time), selected by the Remarketing
Agent, on the Remarketing Date as determined on a third-day settlement
basis by a reasonable and customary means selected in good faith by the
Remarketing Agent, plus accrued interest to that date; and provided further
that, the Remarketing Agent shall, in its sole discretion, select the U.S.
Treasury securities in connection with a Remarketing in open market
transactions, at a U.S. Treasury auction and/or from its own account.
"Reorganization Event" has the meaning set forth in Section 5.6(b).
"Reset Rate" has the meaning set forth in Section 102 of the
Supplemental Indenture.
"Reset Transaction" means a merger, consolidation or statutory share
exchange to which the Person that is the issuer of the shares of Common Stock
for which the Purchase Contracts are then to be settled is a party, a sale of
all or substantially all assets of such Person, a
11
recapitalization of such Common Stock or a distribution described in Section
5.6(a)(4) by such Person and after the effective date of such transaction the
Purchase Contracts are then to be settled for shares of common stock of a Person
(i) which had a Dividend Yield for the four fiscal quarters immediately
preceding the public announcement thereof which was, or (ii) that announces a
dividend policy prior to the effective date thereof which policy, if
implemented, would result in a Dividend Yield on such shares of Common Stock for
the next four fiscal quarters which would be, more than 250 basis points higher
than the Dividend Yield on the shares of Common Stock for which the Purchase
Contracts are to be settled prior to such effective date for the four fiscal
quarters immediately preceding such public announcement.
"Responsible Officer," when used with respect to the Purchase Contract
Agent, means any officer of the Purchase Contract Agent assigned by the Purchase
Contract Agent to administer its corporate trust matters.
"Securities Intermediary" means Bank One Trust Company, N.A., as
Securities Intermediary under the Pledge Agreement until a successor Securities
Intermediary shall have become such pursuant to the applicable provisions of the
Pledge Agreement, and thereafter "Securities Intermediary" shall mean such
successor.
"Security" means a Corporate Unit or a Treasury Unit or the collective
reference to the Corporate Units and the Treasury Units, as the case may be.
"Senior Notes" means the 2002 Series A 5.75% Senior Notes, due May 15,
2008 to be issued by the Company under the Supplemental Indenture, each having a
minimum denomination of $50 and bearing interest, payable on the Payment Dates,
at the Coupon Rate to, but not including, the Remarketing Settlement Date or the
Purchase Contract Settlement Date, as applicable, and thereafter at the Reset
Rate, in each case pursuant to the Supplemental Indenture. Any reference herein
to "one Senior Note," "a Senior Note" or "the Senior Note" or any phrase herein
having a similar meaning shall be a reference to a Senior Note in the principal
amount of $50.
"Senior Officer" means any one of the Company's Chief Executive
Officer, President, Executive Vice Presidents, Senior Vice Presidents or
Treasurer.
"Separated Senior Notes" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Settlement Rate" has the meaning specified in Section 5.1.
"Stated Amount" means $50 in cash.
"Stated Maturity" means, with respect to the Senior Notes, May 15,
2008.
"Subsequent Remarketing" has the meaning specified in Section 2(d) of
the Remarketing Agreement.
"Subsequent Remarketing Date" has the meaning specified in Section
2(d) of the Remarketing Agreement.
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"Successful Final Remarketing" has the meaning specified in Section
2(e) of the Remarketing Agreement.
"Successful Initial Remarketing" has the meaning specified in Section
2(e) of the Remarketing Agreement.
"Successful Remarketing" has the meaning specified in Section 2(e) of
the Remarketing Agreement.
"Successful Subsequent Remarketing" has the meaning specified in
Section 2(e) of the Remarketing Agreement.
"Supplemental Indenture" means the Tenth Supplemental Indenture, dated
as of March 1, 2002, between the Company and the Indenture Trustee,
supplementing the Indenture.
"Tax Event" means the receipt by the Company of an opinion of a
nationally recognized independent tax counsel experienced in such matters, which
may be McGuireWoods LLP, to the effect that, as a result of (a) any amendment
to, or change (including any announced proposed change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, (b) any amendment to or
change in an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority or (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the generally accepted position on
March 20, 2002, which amendment, change or proposed change is effective or which
interpretation or pronouncement is announced on or after March 20, 2002, there
is more than an insubstantial risk that interest on the Senior Notes would not
be deductible, in whole or in part, by the Company for United States federal
income tax purposes.
"Tax Event Redemption" means, if a Tax Event shall occur and
be continuing, the redemption of the Senior Notes, at the option of the Company,
in whole but not in part, on not less than 20 days nor more than 60 days'
written notice.
"Tax Event Redemption Date" means the date upon which a Tax Event
Redemption is to occur.
"Tax Event Redemption Principal Amount" means either (i) if the Tax
Event Redemption Date occurs prior to the Initial Remarketing Date or, in the
event that there has not been a Successful Remarketing or a Successful
Subsequent Remarketing, prior to the Purchase Contract Settlement Date, the
aggregate principal amount of the Senior Notes which are components of Corporate
Units on the Tax Event Redemption Date or (ii) if the Tax Event Redemption Date
occurs on or after the Initial Remarketing Date or, in the event that there has
not been a Successful Remarketing or a Successful Subsequent Remarketing, on or
after the Purchase Contract Settlement Date, the aggregate principal amount of
the Senior Notes outstanding on such Tax Event Redemption Date.
"Termination Date" means the date, if any, on which a Termination
Event occurs.
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"Termination Event" means the occurrence of any of the following
events:
(1) at any time on or prior to the Purchase Contract Settlement Date, a
judgment, decree or court order shall have been entered granting relief
with respect to the Company under the Bankruptcy Code or any other similar
applicable Federal or state law, adjudicating the Company to be insolvent,
or approving as properly filed a petition seeking reorganization or
liquidation of the Company, and, unless such judgment, decree or order
shall have been entered within 60 days prior to the Purchase Contract
Settlement Date, such decree or order shall have continued undischarged and
unstayed for a period of 60 days;
(2) a judgment, decree or court order for the appointment of a receiver
or liquidator or trustee or assignee in bankruptcy or insolvency of the
Company or of its property, or for the winding up or liquidation of its
affairs, shall have been entered, and, unless such judgment, decree or
order shall have been entered within 60 days prior to the Purchase Contract
Settlement Date, such judgment, decree or order shall have continued
undischarged and unstayed for a period of 60 days; or
(3) at any time on or prior to the Purchase Contract Settlement Date,
the Company shall file a petition for relief under the Bankruptcy Code, or
shall consent to the filing of a bankruptcy proceeding against it, or shall
file a petition or answer or consent seeking reorganization or liquidation
of the Company under the Bankruptcy Code or any other similar applicable
Federal or state law, or shall consent to the filing of any such petition,
or shall consent to the appointment of a receiver or liquidator or trustee
or assignee in bankruptcy or insolvency of it or of its property, or shall
make an assignment for the benefit of its creditors, or shall admit in
writing its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning set forth in
Section 5.1.
"TIA" means the Trust Indenture Act of 1939, as amended from
time to time, or any successor legislation, and the rules and regulations
promulgated thereunder.
"Trading Day" has the meaning set forth in Section 5.1.
"Trading Price" of a security on any date of determination
means:
(1) the closing sale price (or, if no closing price is reported, the
last reported sale price) of a security (regular way) on the NYSE on such
date,
(2) if such security is not listed for trading on the NYSE on any such
date, the closing sale price as reported in the composite transactions for
the principal United States securities exchange on which such security is
so listed,
(3) if such security is not so listed on a United States national or
regional securities exchange, the closing sale price as reported by the
NASDAQ Stock Market,
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(4) if such security is not so reported, the price quoted by
Interactive Data Corporation for such security or, if Interactive Data
Corporation is not quoting such price, a similar quotation service selected
by the Company,
(5) if such security is not so quoted, the average of the
mid-point of the last bid and ask prices for such security from at least
two dealers recognized as market-makers for such security, or
(6) if such security is not so quoted, the average of the last bid
andask prices for such security from a Reference Dealer.
"Treasury Portfolio" has the meaning specified in Section 5.4(b).
"Treasury Portfolio Interest" has the meaning specified in Section
5.4(b) or, in the event that a Tax Event Redemption has occurred, means the
related interest in the Redemption Treasury Portfolio applicable to a Corporate
Unit.
"Treasury Portfolio Return" has the meaning specified in Section
4.1.
"Treasury Security" means a zero-coupon U.S. Treasury Security
which has a principal amount at maturity of $1,000 and which matures on or prior
to the Business Day prior to the Purchase Contract Settlement Date.
"Treasury Unit" means, following the substitution of Treasury
Securities for Senior Notes as collateral to secure a Holder's obligations under
a Purchase Contract, the collective rights and obligations of a Holder of a
Treasury Unit Certificate in respect of such Treasury Securities, subject to the
Pledge thereof, and the related Purchase Contract.
"Treasury Unit Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Treasury Units
specified on such certificate.
"Treasury Unit Register" and "Treasury Unit Registrar" have the
respective meanings set forth in Section 3.5.
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Purchase Contract Agent to take any
action in accordance with any provision of this Agreement, the Company shall
furnish to the Purchase Contract Agent an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and, if requested by the Purchase
Contract Agent, an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Agreement
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement (other than pursuant to
Section 10.5) shall include:
15
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Purchase Contract Agent.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Purchase Contract Agent and, where it is hereby expressly required, to
the Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this
16
Agreement and (subject to Section 7.1) conclusive in favor of the Purchase
Contract Agent and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Purchase Contract
Agent deems sufficient.
(c) The ownership of Securities shall be proved by the Corporate Unit
Register or the Treasury Unit Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Purchase
Contract Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Securities. If any record date is set pursuant to this paragraph, the
Holders of the Outstanding Corporate Units and the Outstanding Treasury Units,
as the case may be, on such record date, and no other Holders, shall be entitled
to take the relevant action with respect to the Corporate Units or the Treasury
Units, as the case may be, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
number of Outstanding Securities on such record date. Nothing contained in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and be of no effect), and nothing
contained in this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite number of Outstanding Securities on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Purchase Contract Agent in writing and to each Holder of Securities
in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to
time may change the Expiration Date to any earlier or later day; provided that
no such change shall be effective unless notice of the proposed new Expiration
Date is given to the Purchase Contract Agent in writing, and to each Holder of
Securities in the manner set forth in Section 1.6, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the Company shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
17
Section 1.5. Notices.
Any notice or communication is duly given if in writing and
delivered in Person or mailed by first-class mail (registered or certified,
return receipt requested), telecopier (with receipt confirmed) or overnight air
courier guaranteeing next day delivery, to the others' address; provided that
notice shall be deemed given to the Purchase Contract Agent only upon receipt
thereof:
If to the Purchase Contract Agent:
JPMorgan Chase Bank
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000)000-0000/8160
Attention: Institutional Trust Services
If to the Company:
Dominion Resources, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000)000-0000
Attention: Treasurer
If to the Collateral Agent and Securities Intermediary:
Bank One Trust Company, N.A.
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000)000-0000
Attention: Corporate Trust Administration
If to the Indenture Trustee:
JPMorgan Chase Bank
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000)000-0000/8160
Attention: Institutional Trust Services
Section 1.6. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at its address as it appears in the applicable Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Agreement provides for notice
in any manner,
18
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Purchase Contract Agent, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Purchase
Contract Agent shall constitute a sufficient notification for every purpose
hereunder.
Section 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.8. Successors and Assigns.
All covenants and agreements in this Agreement by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.9. Separability Clause.
In case any provision in this Agreement or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and thereof shall not in any
way be affected or impaired thereby.
Section 1.10. Benefits of Agreement.
Nothing contained in this Agreement or in the Securities, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and, to the extent provided hereby, the Holders, any
benefits or any legal or equitable right, remedy or claim under this Agreement.
The Holders from time to time shall be beneficiaries of this Agreement and shall
be bound by all of the terms and conditions hereof and of the Securities
evidenced by their Certificates by their acceptance of delivery of such
Certificates.
Section 1.11. Governing Law.
This Agreement and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business Day,
then (notwithstanding any other provision of this Agreement or the Corporate
Unit Certificates or the Treasury Unit Certificates) Contract Adjustment
Payments shall not be made on such date, but shall be made on the next
succeeding Business Day with the same force and effect as if made on such
Payment Date, provided that no interest shall accrue or be payable by the
Company or any Holder for the period from and after any such Payment Date,
except that, if such next succeeding Business Day
19
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day with the same force and effect as if made on
such Payment Date.
In any case where any Purchase Contract Settlement Date shall not
be a Business Day, notwithstanding any other provision of this Agreement, the
Corporate Unit Certificates or the Treasury Unit Certificates, Purchase
Contracts shall not be performed on such date, but the Purchase Contracts shall
be performed on the immediately following Business Day with the same force and
effect as if performed on the Purchase Contract Settlement Date.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts by
the parties hereto on separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable
times during normal business hours at the Corporate Trust Office for inspection
by any Holder or Beneficial Owner.
ARTICLE II
Certificate Forms
Section 2.1. Forms of Certificates Generally.
The Corporate Unit Certificates (including the form of Purchase
Contract forming part of the Corporate Units evidenced thereby) shall be in
substantially the form set forth in Exhibit A hereto, with such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Corporate Units are listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Corporate Unit Certificates, as evidenced by their
execution of the Corporate Unit Certificates.
The definitive Corporate Unit Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Corporate Units evidenced by such Corporate Unit Certificates, consistent with
the provisions of this Agreement, as evidenced by their execution thereof.
The Treasury Unit Certificates (including the form of Purchase
Contracts forming part of the Treasury Units evidenced thereby) shall be in
substantially the form set forth in Exhibit B hereto, with such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Treasury Units may be listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Treasury Unit Certificates, as evidenced by their
execution of the Treasury Unit Certificates.
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The definitive Treasury Unit Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Treasury Units evidenced by such Treasury Unit Certificates, consistent with the
provisions of this Agreement, as evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend in substantially the
following form:
"This Certificate is a Global Certificate within the meaning of the
Purchase Contract Agreement hereinafter referred to and is registered
in the name of The Depository Trust Company, a New York corporation
(the "Depositary"), or a nominee of the Depositary. This Certificate
is exchangeable for certificates registered in the name of a person
other than the Depositary or its nominee only in the limited
circumstances described in the Purchase Contract Agreement and no
transfer of this Certificate (other than a transfer of this
Certificate as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Certificate is presented by an authorized representative
of the Depositary for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or
such other name as is requested by an authorized representative of the
Depositary (and any payment hereon is made to Cede & Co. or to such
other entity as is requested by an authorized representative of the
Depositary), any transfer, pledge or other use hereof for value or
otherwise by or to any person is wrongful since the registered owner
hereof, Cede & Co., has an interest herein."
Section 2.2. Form of Purchase Contract Agent's Certificate of Authentication.
The form of the Purchase Contract Agent's certificate of
authentication of the Corporate Unit shall be in substantially the form set
forth on the form of the Corporate Unit Certificates.
The form of the Purchase Contract Agent's certificate of
authentication of the Treasury Unit shall be in substantially the form set forth
on the form of the Treasury Unit Certificates.
ARTICLE III
The Securities
Section 3.1. Amount; Form and Denominations.
The aggregate number of Securities evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to 6,000,000 (or 6,600,000 if the purchaser of the Certificates
exercises its overallotment option in full), except for Certificates
authenticated, executed and delivered upon registration of transfer of, in
exchange for, or in lieu of, other Certificates pursuant to Section 3.4, 3.5,
3.10, 3.13, 3.14, 5.9 or 8.5.
21
The Certificates shall be issuable only in registered form and
only in denominations of a single Corporate Unit or Treasury Unit and any
integral multiple thereof.
Section 3.2. Rights and Obligations Evidenced by the Certificates.
Each Corporate Unit Certificate shall evidence the number of
Corporate Units specified therein, with each such Corporate Unit representing
(1) the ownership by the Holder thereof of a beneficial interest in one Senior
Note or if substituted therefor, the Pledged Treasury Portfolio Interest, in
either case, subject to the Pledge of such Senior Note or such Pledged Treasury
Portfolio Interest, as the case may be, by such Holder pursuant to the Pledge
Agreement, and (2) the rights and obligations of the Holder thereof and the
Company under one Purchase Contract. The Purchase Contract Agent as
attorney-in-fact for, and on behalf of, the Holder of each Corporate Unit shall
pledge, pursuant to the Pledge Agreement, the Senior Note or if substituted
therefor, the Treasury Portfolio Interest, forming a part of such Corporate
Unit, to the Collateral Agent and grant to the Collateral Agent a security
interest in the right, title and interest of such Holder in such Senior Note or
such Treasury Portfolio Interest, as the case may be, for the benefit of the
Company, to secure the obligation of the Holder under each Purchase Contract to
purchase shares of Common Stock. Prior to the purchase of shares of Common Stock
under each Purchase Contract, such Purchase Contracts shall not entitle the
Holder of a Corporate Unit Certificate to any of the rights of a holder of
shares of Common Stock, including, without limitation, the right to vote or
receive any dividends or other payments or to consent or to receive notice as a
shareholder in respect of the meetings of shareholders or for the election of
directors of the Company or for any other matter, or any other rights whatsoever
as a shareholder of the Company.
Upon the formation of Treasury Units pursuant to Section 3.13,
each Treasury Unit Certificate shall evidence the number of Treasury Units
specified therein, with each such Treasury Unit representing (1) the ownership
by the Holder thereof of a 1/20 undivided beneficial interest in a Treasury
Security with a principal amount equal to $1,000, subject to the Pledge of such
Treasury Security by such Holder pursuant to the Pledge Agreement, and (2) the
rights and obligations of the Holder thereof and the Company under one Purchase
Contract. The Purchase Contract Agent as attorney-in-fact for, and on behalf of,
the Holder of each Treasury Unit shall pledge, pursuant to the Pledge Agreement,
the Treasury Security, forming a part of such Treasury Unit, to the Collateral
Agent and grant to the Collateral Agent a security interest in the right, title
and interest of such Holder in such Treasury Security for the benefit of the
Company, to secure the obligation of the Holder under each Purchase Contract to
purchase shares of Common Stock. Prior to the purchase of shares of Common Stock
under each Purchase Contract, such Purchase Contract shall not entitle the
Holder of a Treasury Unit Certificate to any of the rights of a holder of shares
of Common Stock, including, without limitation, the right to vote or receive any
dividends or other payments or to consent or to receive notice as a shareholder
in respect of the meetings of shareholders or for the election of directors of
the Company or for any other matter, or any other rights whatsoever as a
shareholder of the Company.
Section 3.3. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Sections 3.1, 3.13 and 3.14 hereof,
upon the execution and delivery of this Agreement, and at any time and from time
to time thereafter, the Company may deliver Certificates executed by the Company
to the Purchase Contract Agent for authentication,
22
execution on behalf of the Holders and delivery, together with its Issuer Order
for authentication of such Certificates, and the Purchase Contract Agent in
accordance with such Issuer Order shall authenticate, execute on behalf of the
Holders and deliver such Certificates.
The Certificates shall be executed on behalf of the Company by
(i) either its Chief Executive Officer, its President or one of its Vice
Presidents and (ii) either the Corporate Secretary or one of its Assistant
Corporate Secretaries or its Treasurer or one of its Assistant Treasurers. The
signature of any of these officers on the Certificates may be manual or
facsimile.
Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid
until such Certificate has been executed on behalf of the Holder by the manual
signature of an authorized officer of the Purchase Contract Agent, as such
Holder's attorney-in-fact. Such signature by an authorized officer of the
Purchase Contract Agent shall be conclusive evidence that the Holder of such
Certificate has entered into the Purchase Contracts evidenced by such
Certificate.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by an authorized officer of the Purchase Contract Agent by
manual signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
Section 3.4. Temporary Certificates.
Pending the preparation of definitive Certificates, the Company
shall execute and deliver to the Purchase Contract Agent, and the Purchase
Contract Agent shall authenticate, execute on behalf of the Holders, and
deliver, in lieu of such definitive Certificates, temporary Certificates which
are in substantially the form set forth in Exhibit A or Exhibit B hereto, as the
case may be, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities exchange on which the
Corporate Units or Treasury Units are or may be listed, or as may, consistently
herewith, be determined by the officers of the Company executing such
Certificates, as evidenced by their execution of the Certificates.
If temporary Certificates are issued, the Company will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office, at the expense of the Company and
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent
23
shall authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, one or more definitive Certificates of like tenor and denominations
and evidencing a like aggregate number of Corporate Units or Treasury Units, as
the case may be, as the temporary Certificate or Certificates so surrendered.
Until so exchanged, the temporary Certificates shall in all respects evidence
the same benefits and the same obligations with respect to the Corporate Units
or Treasury Units, as the case may be, evidenced thereby as definitive
Certificates.
Section 3.5. Registration; Registration of Transfer and Exchange.
The Purchase Contract Agent shall keep at the Corporate Trust
Office a register (the "Corporate Unit Register") in which, subject to such
reasonable regulations as it may prescribe, the Purchase Contract Agent shall
provide for the registration of Corporate Unit Certificates and of transfers of
Corporate Unit Certificates (the Purchase Contract Agent, in such capacity, the
"Corporate Unit Registrar") and a register (the "Treasury Unit Register") in
which, subject to such reasonable regulations as it may prescribe, the Purchase
Contract Agent shall provide for the registration of the Treasury Unit
Certificates and transfers of Treasury Unit Certificates (the Purchase Contract
Agent, in such capacity, the "Treasury Unit Registrar").
Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office, the Company shall execute and deliver to the
Purchase Contract Agent, and the Purchase Contract Agent shall authenticate,
execute on behalf of the designated transferee or transferees, and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of any authorized denominations, like tenor, and evidencing a like
aggregate number of Corporate Units or Treasury Units, as the case may be.
At the option of the Holder, Certificates may be exchanged for
other Certificates, of any authorized denominations and evidencing a like number
of Corporate Units or Treasury Units, as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and
deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall
authenticate, execute on behalf of the Holder, and deliver the Certificates
which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same aggregate
number of Corporate Units or Treasury Units, as the case may be, and be entitled
to the same benefits and subject to the same obligations, under this Agreement
as the Corporate Units or Treasury Units, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Purchase Contract Agent)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Purchase Contract Agent duly executed, by
the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of a Certificate, but the Company and the Purchase Contract Agent
may require payment from the Holder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection
24
with any registration of transfer or exchange of Certificates, other than any
exchanges pursuant to Sections 3.4, 3.6 and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated
to execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall not be obligated to authenticate, execute on behalf of the Holder
and deliver any Certificate in exchange for any other Certificate presented or
surrendered for registration of transfer or for exchange on or after the
Business Day immediately preceding the earlier of the Purchase Contract
Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Purchase Contract Agent shall:
(1) if the Purchase Contract Settlement Date has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the Securities evidenced by such other
Certificate; or
(2) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Senior Notes, the Treasury
Portfolio or the Treasury Securities, as the case may be, evidenced
thereby,
in each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
Section 3.6. Book-Entry Interests.
The Certificates, on original issuance, will be issued in the
form of one or more fully registered Global Certificates, to be delivered to the
Clearing Agency or its custodian by, or on behalf of, the Company. Such Global
Certificate shall initially be registered on the books and records of the
Company in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Beneficial Owner will receive a definitive Certificate representing such
Beneficial Owner's interest in such Global Certificate, except as provided in
Section 3.9. The Purchase Contract Agent shall enter into an agreement with the
Clearing Agency if so requested by the Company. Unless and until definitive,
fully registered Certificates have been issued to Beneficial Owners pursuant to
Section 3.9:
(1) the provisions of this Section 3.6 shall be in full force
and effect;
(2) the Company shall be entitled to deal with the Clearing
Agency for all purposes of this Agreement (including making Contract
Adjustment Payments and receiving approvals, votes or consents hereunder)
as the Holder of the Securities and the sole holder of the Global
Certificates and shall have no obligation to the Beneficial Owners;
(3) to the extent that the provisions of this Section 3.6
conflict with any other provisions of this Agreement, the provisions of
this Section 3.6 shall control; and
(4) the rights of the Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Beneficial Owners and the Clearing Agency
and/or the Clearing Agency Participants.
25
Section 3.7. Notices to Holders.
Whenever a notice or other communication to the Holders is
required to be given under this Agreement, the Company or the Company's agent
shall give such notices and communications to the Holders and, with respect to
any Securities registered in the name of a Clearing Agency or the nominee of a
Clearing Agency, the Company or the Company's agent shall, except as set forth
herein, have no obligations to the Beneficial Owners.
Section 3.8. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities or ceases to be eligible as
a "clearing agency" under the Exchange Act, the Company may, in its sole
discretion, appoint a successor Clearing Agency with respect to the Securities.
Section 3.9. Definitive Certificates.
If:
(1) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities or ceases to be
eligible as a "clearing agency" under the Exchange Act and a successor
Clearing Agency is not appointed by the Company pursuant to Section 3.8
within 90 days after the Company receives notice from the Clearing Agency
of such election or becomes aware of such cessation; or
(2) there shall have occurred and be continuing a default by the
Company in respect of its obligations under one or more Purchase
Contracts,
then upon surrender of the Global Certificates representing the Securities by
the Clearing Agency, accompanied by registration instructions, the Company shall
cause definitive Certificates to be delivered to Beneficial Owners in accordance
with the instructions of the Clearing Agency. The Company and the Purchase
Contract Agent shall not be liable for any delay in delivery of such
instructions and may conclusively rely on and shall be protected in relying on,
such instructions.
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Purchase
Contract Agent, the Company shall execute and deliver to the Purchase Contract
Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of
the Holder, and deliver in exchange therefor, a new Certificate, evidencing the
same number of Corporate Units or Treasury Units, as the case may be, and
bearing a Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Purchase
Contract Agent (i) evidence to their satisfaction of the destruction, loss or
theft of any Certificate, and (ii) such security or indemnity as may be required
by them to hold each of them and any agent of any of them harmless, then, in the
absence of notice to the Company or the Purchase Contract Agent that such
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall authenticate, execute on behalf of
26
the Holder, and deliver to the Holder, in lieu of any such destroyed, lost or
stolen Certificate, a new Certificate, evidencing the same number of Corporate
Units or Treasury Units, as the case may be, and bearing a Certificate number
not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated
to execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall not be obligated to authenticate, execute on behalf of the Holder,
and deliver to the Holder, a Certificate on or after the Business Day
immediately preceding the earlier of the Purchase Contract Settlement Date or
the Termination Date. In lieu of delivery of a new Certificate, upon
satisfaction of the applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from such Holder,
the Purchase Contract Agent shall:
(1) if the Purchase Contract Settlement Date has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the Securities evidenced by such Certificate;
or
(2) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Senior Notes, the Treasury
Portfolio or the Treasury Securities, as the case may be, evidenced
thereby,
in each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
Upon the issuance of any new Certificate under this Section, the
Company and the Purchase Contract Agent may require the payment by the Holder of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Purchase Contract Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu of
any destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder in respect of
the Security evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Securities evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of this Agreement equally and proportionately with any
and all other Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.11. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of
transfer, the Company and the Purchase Contract Agent, and any agent of the
Company or the Purchase Contract Agent, may treat the Person in whose name such
Certificate is registered as the owner of the Corporate Units or Treasury Units
evidenced thereby, for the purpose of receiving interest payments on the Senior
Notes, receiving Contract Adjustment Payments, performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not any interest
payments on the Senior Notes or the Contract Adjustment Payments payable in
respect of the Purchase Contracts constituting a part of the
27
Corporate Units or Treasury Units evidenced thereby shall be overdue and
notwithstanding any notice to the contrary, and neither the Company nor the
Purchase Contract Agent, nor any agent of the Company or the Purchase Contract
Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Certificate, nothing contained herein shall prevent the Company, the Purchase
Contract Agent or any agent of the Company or the Purchase Contract Agent, from
giving effect to any written certification, proxy or other authorization
furnished by any Clearing Agency (or its nominee), as a Holder, with respect to
such Global Certificate or impair, as between such Clearing Agency and owners of
beneficial interests in such Global Certificate, the operation of customary
practices governing the exercise of rights of such Clearing Agency (or its
nominee) as Holder of such Global Certificate.
Section 3.12. Cancellation.
All Certificates surrendered for delivery of shares of Common
Stock on or after the Purchase Contract Settlement Date, upon the transfer of
Senior Notes, the Treasury Portfolio or Treasury Securities, as the case may be,
after the occurrence of a Termination Event or pursuant to an Early Settlement,
or upon the registration of a transfer or exchange of a Security, or a
Collateral Substitution or the reestablishment of Corporate Units shall, if
surrendered to any Person other than the Purchase Contract Agent, be delivered
to the Purchase Contract Agent and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Purchase Contract
Agent for cancellation any Certificates previously authenticated, executed and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Certificates so delivered shall, upon Issuer Order, be
promptly cancelled by the Purchase Contract Agent. No Certificates shall be
authenticated, executed on behalf of the Holder and delivered in lieu of or in
exchange for any Certificates cancelled as provided in this Section, except as
expressly permitted by this Agreement. All cancelled Certificates held by the
Purchase Contract Agent shall be disposed of by the Purchase Contract Agent in
accordance with its customary procedures.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Purchase
Contract Agent cancelled or for cancellation.
Section 3.13. Creation of Treasury Units by Substitution of Treasury
Securities.
A Holder may separate the Senior Notes from the related Purchase
Contracts in respect of such Holder's Corporate Units by substituting for such
Senior Notes Treasury Securities in an aggregate principal amount equal to the
aggregate principal amount of such Senior Notes (a "Collateral Substitution"),
at any time from and after the date of this Agreement until 5:00 p.m. (New York
City time) on the Election Date by providing notice to the Purchase Contract
Agent, substantially in the form of Exhibit C hereto, of such Holder's intention
to create Treasury Units and:
(1) depositing with the Securities Intermediary Treasury
Securities having an aggregate principal amount at maturity equal to the
aggregate principal amount of the Senior Notes comprising part of such
Corporate Units; and
28
(2) transferring the related Corporate Units to the Purchase
Contract Agent accompanied by a notice to the Purchase Contract Agent,
substantially in the form of Exhibit D hereto, stating that the Holder
has transferred the relevant amount of Treasury Securities to the
Securities Intermediary and requesting that the Purchase Contract Agent
instruct the Collateral Agent to release the Senior Notes underlying such
Corporate Units, whereupon the Purchase Contract Agent shall promptly
give such instruction to the Collateral Agent, substantially in the form
of Exhibit A to the Pledge Agreement.
Upon receipt of the Treasury Securities described in clause (1) above and the
instruction described in clause (2) above, in accordance with the terms of the
Pledge Agreement, the Collateral Agent will cause the Securities Intermediary to
effect the release of such Senior Notes from the Pledge to the Purchase Contract
Agent, free and clear of the Company's security interest therein, and the
transfer of such Senior Notes to the Purchase Contract Agent on behalf of the
Holder. Upon receipt thereof, the Purchase Contract Agent shall promptly:
(i) cancel the related Corporate Units;
(ii) transfer the Senior Notes to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver
a Treasury Unit Certificate executed by the Company in accordance with Section
3.3 of this Agreement evidencing the same number of Purchase Contracts as were
evidenced by the cancelled Corporate Units.
Holders who elect to separate the Senior Notes from the related
Purchase Contracts and to substitute Treasury Securities for such Senior Notes
shall be responsible for any fees or expenses payable to the Collateral Agent
for its services as Collateral Agent in respect of the substitution, and the
Company shall not be responsible for any such fees or expenses.
Holders may make Collateral Substitutions only in integral
multiples of 20 Corporate Units. Under no circumstances may a Holder of
Corporate Units create Treasury Units after the Election Date.
In the event a Holder making a Collateral Substitution pursuant
to Section 3.13 of this Agreement fails to effect a book-entry transfer of the
Corporate Units or fails to deliver Corporate Unit Certificates to the Purchase
Contract Agent after depositing Treasury Securities with the Collateral Agent,
the Senior Notes, constituting a part of such Corporate Units, and any interest
payments on such Senior Notes, shall be held in the name of the Purchase
Contract Agent or its nominee in trust for the benefit of such Holder, until
such Corporate Units are so transferred or the Corporate Unit Certificates are
so delivered, as the case may be, or, with respect to the Corporate Unit
Certificates, such Holder provides evidence satisfactory to the Company and the
Purchase Contract Agent that such Corporate Unit Certificates have been
destroyed, lost or stolen, together with any indemnity that may be required by
the Purchase Contract Agent and the Company.
Except as described in this Section 3.13, for so long as the
Purchase Contract underlying a Corporate Unit remains in effect, such Corporate
Unit shall not be separable into its constituent parts, and the rights and
obligations of the Holder in respect of the Senior Note or the
29
Treasury Portfolio Interest and the Purchase Contract comprising such Corporate
Unit may be acquired, and may be transferred and exchanged, only as a Corporate
Unit.
Section 3.14. Reestablishment of Corporate Units.
Unless a Tax Event Redemption has occurred, a Holder of a
Treasury Unit may recreate Corporate Units at any time until 5:00 p.m. (New York
City time) on the Election Date by providing notice to the Purchase Contract
Agent, substantially in the form of Exhibit C hereto, of such Holder's intention
to recreate Corporate Units and:
(1) depositing with the Securities Intermediary Senior Notes
having an aggregate principal amount equal to the aggregate principal
amount at maturity of the Treasury Securities comprising part of the
Treasury Units; and
(2) transferring the related Treasury Units to the Purchase
Contract Agent accompanied by a notice to the Purchase Contract Agent,
substantially in the form of Exhibit D hereto, (i) stating that the
Holder has transferred the relevant amount of Senior Notes to the
Securities Intermediary and (ii) requesting that the Purchase Contract
Agent instruct the Collateral Agent to release the Treasury Securities
underlying such Treasury Units, whereupon the Purchase Contract Agent
shall promptly give such instruction to the Collateral Agent,
substantially in the form of Exhibit C to the Pledge Agreement.
Upon receipt of the Senior Notes described in clause (1) above and the
instruction described in clause (2) above, in accordance with the terms of the
Pledge Agreement, the Collateral Agent will cause the Securities Intermediary to
effect the release of such Treasury Securities from the Pledge to the Purchase
Contract Agent, free and clear of the Company's security interest therein, and
the transfer of such Treasury Securities to the Purchase Contract Agent on
behalf of the Holder. Upon receipt thereof, the Purchase Contract Agent shall
promptly:
(i) cancel the related Treasury Units;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver
a Corporate Unit Certificate executed by the Company in accordance with Section
3.3 evidencing the same number of Purchase Contracts as were evidenced by the
cancelled Treasury Unit.
Holders who elect to recreate Corporate Units shall be
responsible for any fees or expenses payable to the Collateral Agent for its
services as Collateral Agent in respect of the substitution, and the Company
shall not be responsible for any such fees or expenses.
Holders of Treasury Units may reestablish Corporate Units in
integral multiples of 20 Treasury Units for 20 Corporate Units. Under no
circumstances may a Holder of Treasury Units recreate Corporate Units after the
Election Date.
Except as provided in this Section 3.14, for so long as the
Purchase Contract underlying a Treasury Unit remains in effect, such Treasury
Unit shall not be separable into its constituent parts and the rights and
obligations of the Holder of such Treasury Units in respect of the
30
1/20 of a Treasury Security and the Purchase Contract comprising such Treasury
Units may be acquired, and may be transferred and exchanged, only as a Treasury
Unit.
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event.
Upon the occurrence of a Termination Event and the transfer to
the Purchase Contract Agent of the Senior Notes, Treasury Portfolio Interests or
the Treasury Securities, as the case may be, underlying the Corporate Units and
the Treasury Units, as the case may be, pursuant to the terms of the Pledge
Agreement, the Purchase Contract Agent shall request transfer instructions with
respect to such Senior Notes, Treasury Portfolio Interests or Treasury
Securities, as the case may be, from each Holder by written request,
substantially in the form of Exhibit E hereto, mailed to such Holder at its
address as it appears in the Corporate Unit Register or the Treasury Unit
Register, as the case may be.
Upon book-entry transfer of the Corporate Units or Treasury Units
or delivery of a Corporate Unit Certificate or Treasury Unit Certificate to the
Purchase Contract Agent with such transfer instructions, the Purchase Contract
Agent shall transfer the Senior Notes, Treasury Portfolio Interests or Treasury
Securities, as the case may be, underlying such Corporate Units or Treasury
Units, as the case may be, to such Holder by book-entry transfer, or other
appropriate procedures, in accordance with such instructions. In the event a
Holder of Corporate Units or Treasury Units fails to effect such transfer or
delivery, the Senior Notes, Treasury Portfolio Interests or Treasury Securities,
as the case may be, underlying such Corporate Units or Treasury Units, as the
case may be, and any interest thereon, shall be held in the name of the Purchase
Contract Agent or its nominee in trust for the benefit of such Holder, until the
earlier of:
(1) such Corporate Units or Treasury Units are transferred or
the Corporate Unit Certificate or Treasury Unit Certificate is
surrendered or such Holder provides satisfactory evidence that such
Corporate Unit Certificate or Treasury Unit Certificate has been
destroyed, lost or stolen, together with any indemnity that may be
required by the Purchase Contract Agent and the Company; and
(2) the expiration of the time period specified in the abandoned
property laws of the relevant state.
Section 3.16. No Consent to Assumption.
Each Holder of a Security, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365 of
the Bankruptcy Code or otherwise, of the Purchase Contract by the Company or its
trustee, receiver, liquidator or a person or entity performing similar functions
in the event that the Company becomes the debtor under the Bankruptcy Code or
subject to other similar state or federal law providing for reorganization or
liquidation.
31
ARTICLE IV
The Senior Notes
Section 4.1. Interest Payments; Rights to Interest Preserved.
Each Corporate Unit issued hereunder shall consist of the
beneficial ownership by the Holder of one Senior Note issued pursuant to the
Indenture or, if the Remarketing Senior Notes shall have been remarketed by the
Remarketing Agent pursuant to the Remarketing Agreement or if a Tax Event
Redemption has occurred before the Purchase Contract Settlement Date, the
Treasury Portfolio Interest, in each case, subject to the Pledge thereof by such
Holder under the Pledge Agreement.
An interest payment on any Senior Note which is paid on any
Payment Date or the portion of the proceeds of a Treasury Portfolio Interest
equal to the interest payable on a Senior Note on the Purchase Contract
Settlement Date (such portion the "Treasury Portfolio Return"), as the case may
be, subject to receipt thereof by the Purchase Contract Agent from the
Collateral Agent as provided by the terms of the Pledge Agreement, shall
promptly be paid to the Person in whose name the Corporate Unit Certificate (or
one or more Predecessor Corporate Unit Certificates) of which such Senior Note
or the Treasury Portfolio Interest, as the case may be, is a part is registered
at the close of business on the Record Date for such Payment Date or Purchase
Contract Settlement Date, as applicable.
Each Corporate Unit Certificate evidencing, in part, the Senior
Note or the Treasury Portfolio Interest delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any other Corporate
Unit Certificate shall carry the right to accrued and unpaid interest, and the
right to accrue interest (and accreted and accreting principal in the case of
non-interest bearing components of the Treasury Portfolio Interest), which
rights were carried by the Senior Note or the Treasury Portfolio Interest, as
the case may be, relating to such other Corporate Unit Certificate.
In the case of any Corporate Unit with respect to which (1) Cash
Settlement of the related Purchase Contract is effected on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, (2) Early
Settlement of the related Purchase Contract is effected on an Early Settlement
Date or (3) a Collateral Substitution is effected, in each case, on a date that
is after any Record Date and on or prior to the next succeeding Payment Date,
the interest payment on the Senior Note or the Treasury Portfolio Return, as the
case may be, relating to such Corporate Unit otherwise payable on such Payment
Date shall be payable on such Payment Date notwithstanding such Cash Settlement,
Early Settlement or Collateral Substitution, as the case may be, and such
payment shall, subject to receipt thereof by the Purchase Contract Agent, be
payable to the Person in whose name the Corporate Unit Certificate (or one or
more Predecessor Corporate Unit Certificates) was registered at the close of
business on the corresponding Record Date. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any Corporate
Unit with respect to which Cash Settlement or Early Settlement of the related
Purchase Contract is effected on the fifth Business Day immediately preceding
the Purchase Contract Settlement Date, or on an Early Settlement Date,
respectively, or with respect to which a Collateral Substitution has been
effected, interest payments on the related Senior Notes or the Treasury
Portfolio Return, as the case may be, that would otherwise be payable after the
fifth Business Day preceding the Purchase Contract Settlement Date, after the
Early Settlement Date, or after the Collateral Substitution, respectively,
32
shall not be payable hereunder to the Holder of such Corporate Unit; provided,
however, that to the extent that such Holder continues to hold the Separated
Senior Note that formerly comprised a part of such Holder's Corporate Unit, such
Holder shall be entitled to receive the interest payments on such Separated
Senior Note, as provided in the Indenture.
Section 4.2. Interest Rate Reset.
Unless a Tax Event Redemption has occurred, the applicable
interest rate borne by the Senior Notes, whether or not part of Corporate Units,
shall be reset to the Reset Rate, pursuant to the Supplemental Indenture, and
will be effective with respect to all Senior Notes, whether or not then
constituting a component of Corporate Units, as of the Remarketing Settlement
Date, in the case of a Successful Remarketing, or, as of the Purchase Contract
Settlement Date, in the event of a Failed Remarketing or in the event there is
no Remarketing pursuant to clause (iii) of the definition of Reset Rate in the
Supplemental Indenture.
Section 4.3. Notice and Voting.
Under the terms of the Pledge Agreement, the Purchase Contract
Agent will be entitled to exercise the voting and any other consensual rights
pertaining to the Pledged Senior Notes, but it will do so only to the extent
instructed in writing by the Holders as described below. Upon receipt of notice
of any meeting at which holders of Senior Notes are entitled to vote or upon any
solicitation of consents, waivers or proxies of holders of Senior Notes, the
Purchase Contract Agent shall, as soon as practicable thereafter, mail to the
Holders of Corporate Units a notice:
(1) containing such information as is contained in the notice or
solicitation;
(2) stating that each Holder on the record date set by the
Purchase Contract Agent therefor (which, to the extent possible, shall be
the same date as the record date for determining the holders of Senior
Notes entitled to vote) shall be entitled to instruct the Purchase
Contract Agent as to the exercise of the voting rights pertaining to such
Senior Notes underlying their Corporate Units; and
(3) stating the manner in which such instructions may be given.
Upon the written request of the Holders of Corporate Units on such record date
received by the Purchase Contract Agent at least six days prior to such meeting
or the expiration date of any such solicitation, the Purchase Contract Agent
shall endeavor insofar as practicable to vote or cause to be voted, in
accordance with the instructions set forth in such requests, the maximum
principal amount of Senior Notes as to which any particular voting instructions
are received. In the absence of specific instructions from the Holder of
Corporate Units, the Purchase Contract Agent shall abstain from voting the
Senior Notes underlying such Corporate Units. The Company hereby agrees, if
applicable, to solicit Holders of Corporate Units to timely instruct the
Purchase Contract Agent in order to enable the Purchase Contract Agent to vote
such Senior Notes.
Section 4.4. Tax Event Redemption.
Upon the occurrence of a Tax Event Redemption prior to the
Initial Remarketing Date, or in the event that there has not been a Successful
Initial Remarketing or a Successful Subsequent
33
Remarketing, prior to the Purchase Contract Settlement Date, pursuant to the
terms of the Pledge Agreement, the Collateral Agent will apply, out of the
aggregate Redemption Price for the Senior Notes that are part of Corporate
Units, an amount equal to the aggregate Redemption Amount for the Senior Notes
that are part of Corporate Units to purchase on behalf of the Holders of
Corporate Units the Redemption Treasury Portfolio and promptly remit the
remaining portion, if any, of such Redemption Price to the Purchase Contract
Agent for payment to the Holders of such Corporate Units. The Redemption
Treasury Portfolio will be substituted for the Pledged Senior Notes, and will be
held by the Collateral Agent in accordance with the terms of the Pledge
Agreement to secure the obligation of each Holder of a Corporate Unit to
purchase Common Stock of the Company under the Purchase Contract constituting a
part of such Corporate Unit. Following the occurrence of a Tax Event Redemption
prior to the Initial Remarketing Date, or in the event that there has not been a
Successful Initial Remarketing or a Successful Subsequent Remarketing, prior to
the Purchase Contract Settlement Date, the Holders of the Corporate Units and
the Collateral Agent shall have such security interests, rights and obligations
with respect to the Redemption Treasury Portfolio as the Holders and the
Collateral Agent, respectively, had with respect to the Senior Notes, subject to
the Pledge thereof as provided in the Pledge Agreement, and any reference herein
or in the Certificates to the Senior Note shall be deemed to be a reference to
such Redemption Treasury Portfolio and any reference herein or in the
Certificates to interest on the Senior Notes shall be deemed to be a reference
to corresponding distributions on the Redemption Treasury Portfolio. The Company
may cause to be made in any Corporate Units Certificate thereafter to be issued
such change in phraseology and form (but not in substance) as may be appropriate
to reflect the substitution of the Redemption Treasury Portfolio for Senior
Notes as collateral.
Upon the occurrence of a Tax Event Redemption after the Purchase
Contract Settlement Date, the Redemption Price will be payable in cash to the
holders of the Senior Notes.
ARTICLE V
The Purchase Contracts
Section 5.1. Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless an Early Settlement has
occurred in accordance with Section 5.9 hereof, obligate the Holder of the
related Security to purchase, and the Company to sell, on the Purchase Contract
Settlement Date at a price equal to the Stated Amount (the "Purchase Price"), a
number of newly issued shares of Common Stock equal to the Settlement Rate
unless, on or prior to the Purchase Contract Settlement Date, there shall have
occurred a Termination Event with respect to the Security of which such Purchase
Contract is a part. The "Settlement Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is equal
to or greater than $81.33 (the "Threshold Appreciation Price"), 0.6148
shares of Common Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price, but greater than $59.80 (the "Reference Price"), the
number of shares of Common Stock having a value, based on the Applicable
Market Value, equal to the Stated Amount; and
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(3) if the Applicable Market Value is less than or equal to the
Reference Price, 0.8361 shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in Section 5.6 (and in each case
rounded upward or downward to the nearest 1/10,000th of a share).
Promptly after the calculation of the Settlement Rate and the
Applicable Market Value, the Company shall give the Purchase Contract Agent
notice thereof. All calculations and determinations of the Settlement Rate and
the Applicable Market Value shall be made by the Company or its agent and the
Purchase Contract Agent shall have no responsibility with respect thereto.
As provided in Section 5.10, no fractional shares of Common Stock will
be issued upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Price
per share of Common Stock on each of the 20 Trading Days ending on the third
Trading Day immediately preceding the Purchase Contract Settlement Date.
The "Closing Price" per share of the Common Stock on any date of
determination means:
(1) the closing sale price (or, if no closing price is reported, the
last reported sale price) per share of the Common Stock on the New York
Stock Exchange (the "NYSE") on such date;
(2) if the Common Stock is not listed for trading on the NYSE on any
such date, the closing sale price per share as reported in the composite
transactions for the principal United States securities exchange on which
the Common Stock is so listed;
(3) if the Common Stock is not so listed on a United States national
or regional securities exchange, the closing sale price per share as
reported by The Nasdaq Stock Market;
(4) if the Common Stock is not so reported, the last quoted bid price
per share for the Common Stock in the over-the-counter market as reported
by the National Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-point
of the last bid and ask prices per share of the Common Stock on such date
from at least three nationally recognized independent investment banking
firms retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a Corporate Unit or a Treasury Unit, by its acceptance
thereof:
35
(1) irrevocably authorizes the Purchase Contract Agent to enter into
and perform the related Purchase Contract on its behalf as its
attorney-in-fact (including the execution of Certificates on behalf of such
Holder);
(2) agrees to be bound by the terms and provisions thereof;
(3) covenants and agrees to perform its obligations under such
Purchase Contracts;
(4) consents to the provisions hereof;
(5) irrevocably authorizes the Purchase Contract Agent to enter into
and perform this Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact;
(6) consents to and agrees to be bound by the Pledge of the Senior
Notes or the Treasury Securities pursuant to the Pledge Agreement; and
(7) agrees to treat itself as the owner of the related Senior Notes,
Treasury Portfolio Interest or Treasury Securities, as the case may be, in
each case for Federal, state and local income and franchise tax purposes.
provided that upon a Termination Event, the rights of the Holder of such
Security under the Purchase Contract may be enforced without regard to any other
rights or obligations. Each Holder of a Corporate Unit or a Treasury Unit, by
its acceptance thereof, further covenants and agrees, that to the extent and in
the manner provided in Section 5.4 and the Pledge Agreement, but subject to the
terms thereof, Proceeds from the Remarketing of the Senior Notes or the Proceeds
from the Treasury Securities at maturity on the Purchase Contract Settlement
Date, as the case may be, shall be paid by the Collateral Agent to the Company
in satisfaction of such Holder's obligations under such Purchase Contract and
such Holder shall acquire no right, title or interest in such payments.
Upon registration of transfer of a Certificate, the transferee shall
be bound (without the necessity of any other action on the part of such
transferee) by the terms of this Agreement, the Purchase Contracts underlying
such Certificate and the Pledge Agreement and the transferor shall be released
from the obligations under this Agreement, the Purchase Contracts underlying the
Certificates so transferred and the Pledge Agreement. The Company covenants and
agrees, and each Holder of a Certificate, by its acceptance thereof, likewise
covenants and agrees, to be bound by the provisions of this paragraph.
Section 5.2. Contract Adjustment Payments.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name a Certificate (or one or more Predecessor Certificates) is registered at
the close of business on the Record Date next preceding such Payment Date in
such coin or currency of the United States as at the time of payment shall be
legal tender for the payment of public and private debts. The Contract
Adjustment Payments will be payable at the office of the Purchase Contract Agent
in The City of New York maintained for that purpose or, at the option of the
Company, by check mailed to the address of the Person entitled thereto at such
Person's address as it appears on the Corporate Unit Register or Treasury Unit
Register. If any date on which Contract Adjustment Payments are to be made is
not a Business Day, then payment of the Contract Adjustment Payments payable on
such date will be made on the next day that is a Business Day (and without any
interest in respect of any such delay), except that, if such Business Day is in
the next calendar year, such payment will be made on the preceding Business Day.
Upon the occurrence of a Termination Event, the Company's obligation
to pay Contract Adjustment Payments (including any accrued Contract Adjustment
Payments) shall cease.
Each Certificate delivered under this Agreement upon registration of
transfer of or in exchange for or in lieu of (including as a result of a
Collateral Substitution or the reestablishment of Corporate Units) any other
Certificate shall carry the right to accrued and unpaid Contract Adjustment
Payments, and the right to accrue Contract Adjustment Payments, which rights
were carried by the Purchase Contracts underlying such other Certificates.
Subject to Section 5.9, in the case of any Security with respect to
which (1) Cash Settlement of the underlying Purchase Contract is effected on the
fifth Business Day immediately preceding the Purchase Contract Settlement Date
or (2) Early Settlement of the underlying Purchase Contract is effected on an
Early Settlement Date, in each case, on a date that is after any Record Date and
on or prior to the next succeeding Payment Date, Contract Adjustment Payments
otherwise payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Cash Settlement or Early Settlement, as the case may be,
and such Contract Adjustment Payments shall be paid to the Person in whose name
the Certificate evidencing such Security (or one or more Predecessor
Certificates) is registered at the close of business on such Record Date. Except
as otherwise expressly provided in the immediately preceding sentence, in the
case of any Security with respect to which Cash Settlement or Early Settlement
of the underlying Purchase Contract is effected on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date or on an Early
Settlement Date, respectively, Contract Adjustment Payments that would otherwise
be payable after the fifth Business Day immediately preceding the Purchase
Contract Settlement Date or after the Early Settlement Date with respect to such
Purchase Contract shall not be payable.
Promptly after the calculation of any adjustment to the Contract
Adjustment Payments arising from a Reset Transaction, the Company shall give the
Purchase Contract Agent notice thereof. All calculations and determinations of
the Adjusted Contract Adjustment Payment Rate shall be made by the Company or
its agent and the Purchase Contract Agent shall have no responsibility with
respect thereto. The Purchase Contract Agent shall not at any time be under any
duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment to the Contract Adjustment
Payments, or with respect to the nature or extent or calculation of any such
adjustment when made, or with respect to the method employed in making the same.
Section 5.3. [Intentionally omitted.]
Section 5.4. Payment of Purchase Price; Remarketing.
(a) Unless a Termination Event or a Tax Event Redemption has occurred
or a Holder has settled the related Purchase Contract through a Cash Settlement
pursuant to Section 5.9 or an Early Settlement pursuant to Section 5.9, the
settlement of the Purchase Contract relating to a Security will be made by
Remarketing in accordance with this Section 5.4.
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(b) The Company shall engage Xxxxxxx Xxxxx Barney Inc., or
another nationally recognized investment bank, to act as Remarketing Agent (the
"Remarketing Agent") pursuant to the Remarketing Agreement to remarket (1) the
Pledged Senior Notes comprising part of Corporate Units, other than those
Pledged Senior Notes of Holders that have elected not to participate in the
Remarketing by creating Treasury Units pursuant to Section 5.4(f) below, and (2)
the Separated Senior Notes of holders of Separated Senior Notes that have
elected to participate in the Remarketing pursuant to paragraph 106 of the
Supplemental Indenture and Section 5.7 of the Pledge Agreement (the Senior Notes
described in clauses (1) and (2) collectively being referred to as the
"Remarketing Senior Notes") pursuant to the Remarketing Procedures.
On the seventh Business Day prior to the Initial Remarketing
Date, the Company shall give notice of Remarketing in an Authorized Newspaper,
including the specific U.S. Treasury security or securities (including the CUSIP
number and/or the principal terms of such Treasury security or securities) that
must be delivered by Holders of Corporate Units that elect not to participate in
the Remarketing pursuant to Section 5.4(f) below, no later than 5:00 p.m. (New
York City time) on the Election Date. Not later than 15 calendar days nor more
than 30 calendar days prior to the Initial Remarketing Date, the Company shall
request DTC (or any successor Clearing Agency), to notify its Beneficial Owners
or Clearing Agency Participants holding Corporate Units or Separate Senior Notes
of the impending Remarketing.
The Purchase Contract Agent shall notify, by 11:00 a.m. (New York
City time), on the Business Day immediately preceding the Initial Remarketing
Date, the Remarketing Agent, the Collateral Agent, the Trustee and the Company,
by use of a notice substantially in the form of Exhibit G hereto, of the
aggregate principal amount of Pledged Senior Notes of Corporate Units Holders to
be remarketed on the Initial Remarketing Date or Subsequent Remarketing Date, as
applicable, and the Collateral Agent, pursuant to the Pledge Agreement, having
separately notified the Remarketing Agent, the Trustee and the Company of the
aggregate principal amount of Separated Senior Notes to be included on the
Initial Remarketing Date or Subsequent Remarketing Date, as applicable, by 11:00
a.m. (New York City time), on the Business Day immediately preceding the Initial
Remarketing Date, shall concurrently therewith, pursuant to the Pledge
Agreement, deliver for Remarketing to the Remarketing Agent all Remarketing
Senior Notes. Upon receipt of such notice from the Purchase Contract Agent and
the Collateral Agent and such Remarketing Senior Notes from the Collateral
Agent, the Remarketing Agent, pursuant to the Remarketing Agreement, will, use
its commercially reasonable efforts to remarket such Remarketing Senior Notes on
such date pursuant to the Remarketing Procedures and the Remarketing Agreement.
If there has been a Successful Initial Remarketing or a
Successful Subsequent Remarketing, the Remarketing Agent will on the Remarketing
Settlement Date (i) deduct and retain for itself as the remarketing fee for
itself an amount not exceeding 25 basis points (0.25%) of the principal amount
of each remarketed Remarketing Senior Note (the "Remarketing Fee"), (ii) use the
remaining proceeds attributable to the Pledged Senior Notes from such Successful
Remarketing to purchase the appropriate U.S. Treasury securities (the "Treasury
Portfolio" and the related interest in the Treasury Portfolio applicable to a
Corporate Unit, the "Treasury Portfolio Interest") with the CUSIP numbers, if
any, selected by Remarketing Agent, described in clauses (1)(i) and (2)(i) of
the definition of Remarketing Value related to the Senior Notes of Holders of
Corporate Units that were
38
remarketed, (iii) if any Separated Senior Notes were remarketed, remit to the
Collateral Agent for payment to the holders of such Separated Senior Notes the
amounts specified in clauses 1(ii) and 2(ii) of the definition of Remarketing
Value and (iv) if there then remain any proceeds from such Successful
Remarketing, after the application of such proceeds as set forth in clauses (i)
through (iii) above of this sentence, then remit any such remaining proceeds to
the Purchase Contract Agent for the benefit of holders of the remarketed Senior
Notes and to the Collateral Agent for the benefit of the holders of such
Separated Senior Notes, on a pro rata basis, provided, however, that if such
Successful Remarketing is consummated after 4:30 p.m. (New York City time) on
the Remarketing Date and, despite using its commercially reasonable efforts, the
Remarketing Agent cannot cause the applications of the proceeds specified above
to occur on the Remarketing Settlement Date, then the Remarketing Agent may make
such applications and remittances on the next succeeding Business Day. Holders
of Remarketing Senior Notes that are so remarketed will not otherwise be
responsible for the payment of any remarketing fee or expenses in connection
with the Remarketing. On the Remarketing Settlement Date or the next succeeding
Business Day, as applicable, the Remarketing Agent shall deliver the Treasury
Portfolio to the Collateral Agent. The Collateral Agent, for the benefit of the
Company, will thereupon apply such Treasury Portfolio, in accordance with the
Pledge Agreement, to secure such Holders' obligations under the Purchase
Contracts.
In the event that all or any portion of the Pledged Treasury
Portfolio Interest matures before the Purchase Contract Settlement Date, the
Collateral Agent shall invest the proceeds therefrom in Permitted Investments in
accordance with the Pledge Agreement. The Collateral Agent shall cause the
Securities Intermediary to remit, on the Purchase Contract Settlement Date, a
portion of the proceeds of the maturing Pledged Treasury Portfolio Interest and
of the investment earnings from the related investment in Permitted Investments,
in each case, in an amount equal to the Treasury Portfolio Return to the
Purchase Contract Agent for the benefit of the Holders of the related Corporate
Units when received. Without receiving any instruction from any such Holder of
Corporate Units, the Collateral Agent shall apply, on the Purchase Contract
Settlement Date, the proceeds of the maturing Pledged Treasury Portfolio
Interest and of the investment earnings from the related investment in Permitted
Investments in an aggregate amount equal to the aggregate Purchase Price
applicable to such Corporate Units to satisfy in full such Holder's obligations
to pay the Purchase Price to purchase the shares of Common Stock under the
related Purchase Contracts on the Purchase Contract Settlement Date. In the
event the sum of the proceeds from the related Pledged Treasury Portfolio
Interest and the investment earnings from the related investment in Permitted
Investments exceeds the sum of the related Treasury Portfolio Return and the
aggregate Purchase Price of the Purchase Contracts being settled thereby, the
Collateral Agent shall instruct the Securities Intermediary to distribute such
excess, when received, to the Purchase Contract Agent for distribution to the
Holders whose Purchase Contracts were settled with such proceeds, on a pro rata
basis.
If, by 4:00 p.m. (New York City time), on the ninth Business
Day preceding the Purchase Contract Settlement Date, the Remarketing Agent,
despite using its commercially reasonable efforts, has been and is unable to
remarket all of the Remarketing Senior Notes tendered for purchase at a price
equal to at least the Remarketing Value, the Remarketing Agent shall Transfer to
the Collateral Agent, by the sixth Business Day preceding the Purchase Contract
Settlement Date, the Pledged Senior Notes that that were to be remarketed in the
Initial or Subsequent Remarketing, whereupon the Collateral Agent shall, for the
benefit of the Company, hold such Pledged Senior Notes, to secure the obligation
of the related Holders of Corporate Units to purchase Common Stock under the
related
39
Purchase Contracts.
(c) Pursuant to the Supplemental Indenture and the Remarketing
Agreement, holders of Separated Senior Notes may elect to have such Separated
Senior Note remarketed if such holder, on or prior to 5:00 p.m. (New York City
time) on the Election Date, delivers (i) to the Trustee and the Collateral Agent
a notice of that election, substantially in the form of Exhibit H specifying the
aggregate principal amount of Senior Notes to be remarketed, and (ii) such
Separated Senior Notes, by book-entry transfer or other appropriate procedures,
to the Collateral Agent for Remarketing, in each case, pursuant to the
Indenture. Once the holder of such Separated Senior Notes delivers such notice
and Separated Senior Notes as specified in the preceding sentence, such election
may not be withdrawn and may not be conditioned upon the level at which the
Reset Rate is established in the Remarketing; provided, however, that if such a
holder delivers only such a notice but not the Separated Senior Notes subject to
the notice, then none of such holder's Separated Senior Notes shall be included
in the Remarketing.
(d) Unless a Termination Event has occurred or a Holder has
settled the related Purchase Contract through a Cash Settlement or an Early
Settlement or a Successful Initial Remarketing, or a Successful Subsequent
Remarketing or a Tax Event Redemption has occurred, each Holder shall be deemed
to have consented to the Remarketing of such Holder's Pledged Senior Notes in
the Final Remarketing on the Final Remarketing Date. The Purchase Contract
Agent, shall by 11:00 a.m. (New York City time), on the Business Day immediately
preceding the Final Remarketing Date, notify the Remarketing Agent, the
Collateral Agent, the Trustee and the Company, by use of a notice substantially
in the form of Exhibit G hereto, of such event and of the aggregate principal
amount of Pledged Senior Notes of Corporate Units Holders to be remarketed on
the Final Remarketing Date, whereupon the Collateral Agent, shall concurrently
therewith, without any instruction from such Holder of Corporate Units with
respect to their Pledged Senior Notes, transfer the Remarketing Senior Notes to
the Remarketing Agent for Remarketing. Upon receiving such Remarketing Senior
Notes, the Remarketing Agent, pursuant to the terms of the Remarketing
Agreement, will use its commercially reasonable efforts to remarket such
Remarketing Senior Notes on the Final Remarketing Date.
If a Successful Final Remarketing shall have occurred, the
Remarketing Agent will on the Remarketing Settlement Date or Purchase Contract
Settlement Date, as applicable, (i) deduct and retain for itself the Remarketing
Fee, pursuant to the Remarketing Agreement, (ii) cause the remaining proceeds of
the Remarketing with respect to the Pledged Senior Notes in an amount equal to
the aggregate principal amount of such Senior Notes to be delivered to the
Collateral Agent, on the Remarketing Settlement Date, (iii) if any Separated
Senior Notes were remarketed, remit to the Collateral Agent for payment to the
holders of such Separated Senior Notes sold in the Remarketing the remaining
proceeds from such Successful Remarketing attributable to the Separated Senior
Notes in an amount equal to the principal amount of such Senior Notes and (iv)
if there remain any proceeds from such Successful Remarketing, after the
application of such proceeds as set forth in clauses (i) through (iii) of this
sentence, then remit such remaining proceeds to the Purchase Contract Agent for
the benefit of the holders of the Pledged Senior Notes and to the Collateral
Agent for the benefit of holders of Separated Senior Notes, on a pro rata basis,
provided, however, that if such Successful Final Remarketing is consummated
after 4:30 p.m. (New York City time) on the Remarketing Date and, despite using
its commercially reasonable efforts, the Remarketing Agent cannot cause the
40
application of the proceeds specified above to occur on the Remarketing
Settlement Date, then the Remarketing Agent may make such applications and
remittances on the next succeeding Business Day. Holders of the Remarketing
Senior Notes that are so remarketed will not otherwise be responsible for the
payment of any remarketing fee or expenses in connection with the Remarketing.
The Purchase Contract Agent shall give written directions to the Collateral
Agent, and the Collateral Agent shall instruct the Securities Intermediary, to
apply a portion of the Proceeds with respect to the Pledged Senior Notes from
such Remarketing, on the Purchase Contract Settlement Date, equal to the
aggregate principal amount of such Pledged Senior Notes to satisfy in full the
obligations of such Holders of Corporate Units to pay the Purchase Price to
purchase the shares of Common Stock under the related Purchase Contracts.
If, (1) by 4:00 p.m. (New York City time), on the Final Remarketing
Date, despite using its commercially reasonable efforts, the Remarketing Agent
cannot remarket the Senior Notes included in the Remarketing at a price equal to
at least the Remarketing Value, or (2) the Remarketing Agent has determined that
the Remarketing may not be consummated as contemplated herein and by the
Remarketing Procedures under applicable law, the Remarketing will be deemed to
have failed (a "Failed Remarketing"). If a Failed Remarketing occurs, the
Remarketing Agent will, pursuant to the Remarketing Agreement, promptly advise
the Trustee, the Purchase Contract Agent, the Collateral Agent and the Company
that a Failed Remarketing has occurred, whereupon the Company shall notify the
Clearing Agency that a Failed Remarketing has occurred. The Collateral Agent,
under the Pledge Agreement and for the benefit, and on behalf, of the Company,
may exercise its rights as a secured party with respect to such Pledged Senior
Notes, including those actions specified in paragraph (e) below; provided that,
if upon a Failed Remarketing, the Collateral Agent exercises such rights for the
benefit of the Company with respect to such Pledged Senior Notes, any
accumulated and unpaid interest on such Senior Notes will become payable by the
Company to the Purchase Contract Agent for payment to the Holders of the
Corporate Units to which such Pledged Senior Notes relate. Such payment will be
made by the Company on or prior to 11:00 a.m. (New York City time), on the
Purchase Contract Settlement Date in lawful money of the United States by
certified or cashiers' check or wire transfer in immediately available funds
payable to or upon the order of the Purchase Contract Agent. The Company will
cause a notice of any Failed Remarketing to be sent to the holders of all Senior
Notes and to be published in an Authorized Newspaper, in each case, no later
than on the Business Day immediately preceding the Purchase Contract Settlement
Date.
(e) With respect to any Pledged Senior Notes which are the subject of
a Failed Remarketing, the Collateral Agent, for the benefit of the Company, and
upon written direction of the Company as provided in the Pledge Agreement,
reserves all of its rights as a secured party with respect thereto and, subject
to applicable law and paragraph (f) below, may (i) retain such Senior Notes in
full satisfaction of the Holders' obligations under the related Purchase
Contracts or (ii) sell such Senior Notes in one or more public or private sales.
(f) A Holder of Corporate Units may elect not to participate in the
Remarketing by creating Treasury Units by notifying the Purchase Contract Agent
of such election and complying with the procedures for creating Treasury Units
set forth in Section 3.13 until 5:00 p.m. (New York City time) on the Election
Date. A Holder that does not so create Treasury Units by delivering the Treasury
Security or Treasury Securities pursuant to this paragraph and Section 3.13
shall be deemed
41
to have elected to participate in any Remarketing.
(g) In the event that all or any portion of the Pledged Treasury
Securities of Treasury Units matures before the Purchase Contract Settlement
Date, the Collateral Agent shall invest the proceeds therefrom in Permitted
Investments in accordance with the Pledge Agreement. Without receiving any
instruction from any such Holder of Treasury Units, the Collateral Agent shall
apply, on the Purchase Contract Settlement Date, the proceeds of the maturing
Pledged Treasury Securities and of the investment earnings from the related
investment in Permitted Investments, in each case, in an amount equal to the
aggregate Purchase Price applicable to such Treasury Units to satisfy in full
such Holder's obligations to pay the Purchase Price to purchase the shares of
Common Stock under the related Purchase Contracts on the Purchase Contract
Settlement Date.
In the event the sum of the proceeds from the related Pledged
Treasury Securities and the investment earnings from the related investment in
Permitted Investments exceeds the aggregate Purchase Price of the Purchase
Contracts being settled thereby, the Collateral Agent shall instruct the
Securities Intermediary to distribute such excess, when received, to the
Purchase Contract Agent for distribution to the Holders whose Purchase Contracts
were settled with such proceeds, on a pro rata basis.
(h) In the event that following a Tax Event Redemption, all or
any portion of the Pledged Treasury Portfolio Interest matures before the
Purchase Contract Settlement Date, the Collateral Agent shall invest the
proceeds therefrom in Permitted Investments in accordance with the Pledge
Agreement. The Collateral Agent shall cause the Securities Intermediary to
remit, on the Purchase Contract Settlement Date, a portion of the proceeds of
the maturing Pledged Treasury Portfolio Interest and of the investment earnings
from the related investment in Permitted Investments, in each case, in an amount
equal to the Treasury Portfolio Return to the Purchase Contract Agent for the
benefit of the Holders of the related Corporate Units when received. Without
receiving any instruction from any such Holder of Corporate Units, the
Collateral Agent shall apply, on the Purchase Contract Settlement Date, the
proceeds of the maturing Pledged Treasury Portfolio Interest and of the
investment earnings from the related investment in Permitted Investments in an
aggregate amount equal to the aggregate Purchase Price applicable to such
Corporate Units to satisfy in full such Holder's obligations to pay the Purchase
Price to purchase the shares of Common Stock under the related Purchase
Contracts on the Purchase Contract Settlement Date. In the event the sum of the
proceeds from the related Pledged Treasury Portfolio Interest and the investment
earnings from the related investment in Permitted Investments exceeds the sum of
the related Treasury Portfolio Return and the aggregate Purchase Price of the
Purchase Contracts being settled thereby, the Collateral Agent shall instruct
the Securities Intermediary to distribute such excess, when received, to the
Purchase Contract Agent for distribution to the Holders whose Purchase Contracts
were settled with such proceeds, on a pro rata basis.
(i) Any distributions to Holders of excess funds and interest
described in paragraphs (b), (d), (g) and (h) above shall be payable at the
office of the Purchase Contract Agent in The City of New York maintained for
that purpose or, at the option of the Holder, or the holder of Separated Senior
Notes, as applicable, by check mailed to the address of the Person entitled
thereto at such address as it appears on the Register or by wire transfer to an
account specified to the Purchase Contract Agent by the Holder, or the holder of
Separated Senior Notes, as applicable at least five
42
Business Days before such payment.
(j) The obligations of each Holder to pay the Purchase Price are
non-recourse obligations and except to the extent paid by Cash Settlement or
Early Settlement, are payable solely out of the proceeds of any Collateral
pledged to secure the obligations of the Holders, and in no event shall Holders
be liable for any deficiency between such payments and the Purchase Price.
(k) Notwithstanding anything to the contrary herein, the Company
shall not be obligated to issue any Common Stock in respect of a Purchase
Contract or deliver any certificates therefor to the Holder of the related Units
unless the Company shall have received payment in full of the aggregate Purchase
Price for the shares of Common Stock to be purchased thereunder by such Holder
in the manner herein set forth, which payment, in the case of Corporate Units
upon the occurrence of a Failed Remarketing, shall occur by the resale of
Pledged Senior Notes or foreclosure on and retention of such Pledged Senior
Notes.
Section 5.5. Issuance of Shares of Common Stock.
Unless a Termination Event or an Early Settlement shall have
occurred, subject to Section 5.6(b), the Company shall issue and deposit with
the Purchase Contract Agent, for the benefit of the Holders of the Outstanding
Securities, one or more certificates representing the newly issued shares of
Common Stock registered in the name of the Purchase Contract Agent (or its
nominee) as custodian for the Holders (such certificates for shares of Common
Stock, together with any dividends or distributions for which a record date and
payment date for such dividend or distribution has occurred after the Purchase
Contract Settlement Date, being hereinafter referred to as the "Purchase
Contract Settlement Fund") to which the Holders are entitled hereunder.
Subject to the foregoing, upon surrender of a Certificate to the
Purchase Contract Agent on or after the Purchase Contract Settlement Date,
together with settlement instructions thereon duly completed and executed, the
Holder of such Certificate shall be entitled to receive in exchange therefor a
certificate representing that number of whole shares of Common Stock which such
Holder is entitled to receive pursuant to the provisions of this Article Five
(after taking into account all Securities then held by such Holder), together
with cash in lieu of fractional shares as provided in Section 5.10 and any
dividends or distributions with respect to such shares constituting part of the
Purchase Contract Settlement Fund, but without any interest thereon (or, if such
Certificate is not surrendered to the Purchase Contract Agent or if no such
instructions are given to the Purchase Contract Agent by the Holder, the
Purchase Contract Agent shall hold such Certificate representing shares of
Common Stock, cash in lieu of fractional shares and dividends or distributions,
as applicable, in the name of the Purchase Contract Agent or its nominee in
trust for the benefit of such Holder until the expiration of the time period
specified in the abandoned property laws of the relevant state), and the
Certificate so surrendered shall forthwith be cancelled. Such shares shall be
registered in the name of the Holder or the Holder's designee as specified in
the settlement instructions provided by the Holder to the Purchase Contract
Agent. If any shares of Common Stock issued in respect of a Purchase Contract
are to be registered to a Person other than the Person in whose name the
Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Certificate evidencing such
43
Purchase Contract or has established to the satisfaction of the Company that
such tax either has been paid or is not payable.
Section 5.6. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on the Common Stock in Common Stock, the Settlement Rate in
effect at the opening of business on the day following the date fixed for
the determination of shareholders entitled to receive such dividend or
other distribution shall be increased by dividing such Settlement Rate by a
fraction of which:
(i) the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for
such determination; and
(ii) and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or
other distribution,
such increase to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants
to all holders of Common Stock (not being available on an equivalent basis
to Holders of the Securities upon settlement of the Purchase Contracts
underlying such Securities) entitling them, for a period expiring within 45
days after the record date for the determination of shareholders entitled
to receive such rights, options or warrants, to subscribe for or purchase
shares of Common Stock at a price per share less than the Current Market
Price per share of Common Stock on the date fixed for the determination of
shareholders entitled to receive such rights, options or warrants (other
than pursuant to a dividend reinvestment plan), the Settlement Rate in
effect at the opening of business on the day following the date fixed for
such determination shall be increased by dividing such Settlement Rate by a
fraction of which:
(i) the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock which
the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase
at such Current Market Price; and
(ii) the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock so
offered for subscription or purchase,
44
such increase to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
purposes of this paragraph (2), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company shall not issue any such rights, options or warrants in respect of
shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided or
split into a greater number of shares of Common Stock, the Settlement Rate
in effect at the opening of business on the day following the day upon
which such subdivision or split becomes effective shall be proportionately
increased, and, conversely, in case outstanding shares of Common Stock
shall each be combined into a smaller number of shares of Common Stock, the
Settlement Rate in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day
following the day upon which such subdivision, split or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise, distribute to
all holders of Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights, options or warrants
referred to in paragraph (2) of this Section 5.6(a), any dividend or
distribution paid exclusively in cash and any dividend or distribution
referred to in paragraph (1) of this Section 5.6(a)), the Settlement Rate
shall be adjusted so that the same shall equal the rate determined by
dividing the Settlement Rate in effect immediately prior to the close of
business on the date fixed for the determination of shareholders entitled
to receive such distribution by a fraction of which:
(i) the numerator shall be the Current Market Price per share of
Common Stock on the date fixed for such determination less the then
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution)
of the portion of the assets or evidences of indebtedness so
distributed applicable to one share of Common Stock; and
(ii) the denominator shall be such Current Market Price per share
of Common Stock,
such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
shareholders entitled to receive such distribution. In any case in which
this paragraph (4) is applicable, paragraph (2) of this Section 5.6(a)
shall not be applicable.
(5) In case the Company shall, by dividend or otherwise, distribute to
all holders of Common Stock (I) cash (excluding any cash that is
distributed in a Reorganization Event to which Section 5.6(b) applies or as
part of a distribution referred to in paragraph (4) of this Section 5.6(a))
in an aggregate amount that, combined together with the aggregate amount of
any other distributions to all holders of Common Stock made exclusively in
cash (other than
45
in connection with a Reorganization Event) within the 12 months preceding
the date of payment of such distribution and in respect of which no
adjustment pursuant to this paragraph (5) or paragraph (6) of this Section
5.6(a) has been made and (II) the aggregate of any cash plus the fair
market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) of consideration
payable in respect of any tender or exchange offer by the Company or any of
its subsidiaries for all or any portion of Common Stock concluded within
the 12 months preceding the date of payment of the distribution described
in Clause (I) above and in respect of which no adjustment pursuant to this
paragraph (5) or paragraph (4) or paragraph (6) of this Section 5.6(a) has
been made, exceeds 15% of the product of the Current Market Price per share
of Common Stock on the date for the determination of holders of shares of
Common Stock entitled to receive such distribution times the number of
shares of Common Stock outstanding on such date, then, and in each such
case, immediately after the close of business on such date for
determination, the Settlement Rate shall be increased so that the same
shall equal the rate determined by dividing the Settlement Rate in effect
immediately prior to the close of business on the date fixed for
determination of the shareholders entitled to receive such distribution by
a fraction of which:
(i) the numerator shall be equal to the Current Market Price
per share of the Common Stock on the date fixed for such determination less
an amount equal to the quotient of (x) the combined amount distributed or
payable in the transactions described in clauses (I) and (II) above divided
by (y) the number of shares of Common Stock outstanding on such date for
determination; and
(ii) the denominator shall be equal to the Current Market Price
per share of Common Stock on such date for determination.
(6) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to shareholders (based on the acceptance
(up to any maximum specified in the terms of the tender or exchange offer)
of Purchased Shares) of (I) an aggregate consideration having a fair market
value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution) that combined together
with the aggregate of the cash plus the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution), as of the expiration of such tender or
exchange offer, of consideration payable in respect of any other tender or
exchange offer, by the Company or any subsidiary of the Company for all or
any portion of the Common Stock expiring within the 12 months preceding the
expiration of such tender or exchange offer and in respect of which no
adjustment pursuant to paragraph (5) of this Section 5.6(a) or this
paragraph (6) has been made, and (II) the aggregate amount of any
distributions to all holders of Common Stock made exclusively in cash
within the 12 months preceding the expiration of such tender or exchange
offer and in respect of which no adjustment pursuant to paragraph (5) of
this Section 5.6(a) or this paragraph (6) has been made, exceeds 15% of the
product of the Current Market Price per share of Common Stock as of the
last time (the "Expiration Time") tenders could have been made pursuant to
such tender or exchange offer (as it may be amended) times the number of
shares of Common Stock outstanding (including any tendered shares) on the
Expiration Time, then, and in each such case, immediately prior to
46
the opening of business on the day after the date of the Expiration Time,
the Settlement Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate immediately prior to the close
of business on the date of the Expiration Time by a fraction of which:
(i) the numerator shall be equal to (A) the product of (1) the
Current Market Price per share of Common Stock on the date of the
Expiration Time and (2) the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time
less (B) the amount of cash plus the fair market value (determined as
aforesaid) of the aggregate consideration payable to shareholders
based on the transactions described in clauses (I) and (II) above
(assuming in the case of clause (I) the acceptance, up to any maximum
specified in the terms of the tender or exchange offer, of Purchased
Shares), and
(ii) the denominator shall be equal to the product of (A) the
Current Market Price per share of Common Stock as of the Expiration
Time and (B) the number of shares of Common Stock outstanding
(including any tendered shares) as of the Expiration Time less the
number of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 5.6(b) applies) shall be deemed to
involve:
(a) a distribution of such securities other than Common Stock
to all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of shareholders entitled to receive such distribution"
and the "date fixed for such determination" within the meaning of
paragraph (4) of this Section 5.6(a)); and
(b) a subdivision, split or combination, as the case may be, of
the number of shares of Common Stock outstanding immediately prior to
such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such
subdivision or split becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day upon
which such subdivision, split or combination becomes effective" within
the meaning of paragraph (3) of this Section 5.6(a)).
(8) The "Current Market Price" per share of Common Stock on any day
means the average of the daily Closing Prices for the five consecutive
Trading Days selected by the Company commencing not more than 30 Trading
Days before, and ending not later than, the earlier of the day in question
and the day before the "ex date" with respect to the issuance or
distribution requiring such computation. For purposes of this paragraph,
the term "ex date", when used with respect to any issuance or distribution,
shall mean the first date on which the
47
Common Stock trades regular way on such exchange or in such market without
the right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate shall be calculated to
the nearest 1/10,000th of a share of Common Stock (or if there is not a
nearest 1/10,000th of a share, to the next lower 1/10,000th of a share). No
adjustment in the Settlement Rate shall be required unless such adjustment
would require an increase or decrease of at least one percent thereof;
provided, however, that any adjustments which by reason of this
subparagraph are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. If an adjustment is made to the
Settlement Rate pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
(10) of this Section 5.6(a), an adjustment shall also be made to the
Applicable Market Value solely to determine which of clauses (1), (2) or
(3) of the definition of Settlement Rate in Section 5.1 will apply on the
Purchase Contract Settlement Date. Such adjustment shall be made by
multiplying the Applicable Market Value by a fraction of which the
numerator shall be the Settlement Rate immediately after such adjustment
pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this
Section 5.6(a) and the denominator shall be the Settlement Rate immediately
before such adjustment; provided, however, that if such adjustment to the
Settlement Rate is required to be made pursuant to the occurrence of any of
the events contemplated by paragraph (1), (2), (3), (4), (5), (7) or (10)
of this Section 5.6(a) during the period taken into consideration for
determining the Applicable Market Value, appropriate and customary
adjustments shall be made to the Settlement Rate.
(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section 5.6(a), as it considers to be
advisable in order to avoid or diminish any income tax to any holders of
shares of Common Stock resulting from any dividend or distribution of stock
or issuance of rights, options or warrants to purchase or subscribe for
stock or from any event treated as such for income tax purposes or for any
other reason.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event.
In the event of:
(i) any consolidation or merger of the Company with or into
another Person (other than a merger or consolidation in which the
Company is the continuing corporation and in which the shares of
Common Stock outstanding immediately prior to the merger or
consolidation are not exchanged for cash, securities or other property
of the Company or another corporation);
(ii) any sale, transfer, lease or conveyance to another Person of
the property of the Company as an entirety or substantially as an
entirety;
(iii) any statutory exchange of securities of the Company with
another Person (other than in connection with a merger or
acquisition); or
48
(iv) any liquidation, dissolution or winding up of the Company
other than as a result of or after the occurrence of a Termination Event
(any such event, a "Reorganization Event"),
the Settlement Rate will be adjusted to provide that each Holder of Securities
will receive on the Purchase Contract Settlement Date with respect to each
Purchase Contract forming a part thereof, the kind and amount of securities,
cash and other property receivable upon such Reorganization Event (without any
interest thereon, and without any right to dividends or distribution thereon
which have a record date that is prior to the Purchase Contract Settlement Date)
by a Holder of the number of shares of Common Stock issuable on account of each
Purchase Contract if the Purchase Contract Settlement Date had occurred
immediately prior to such Reorganization Event, assuming such Holder of Common
Stock is not a Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be (any such Person, a "Constituent Person"),
or an Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Stock held by Affiliates of the
Company and non-affiliates and such Holder failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such Reorganization Event (provided that if the kind or
amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("non-electing share"), then for the purpose of
this Section the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares).
In the event of such a Reorganization Event, the Person formed by
such consolidation, merger or exchange or the Person which acquires the assets
of the Company or, in the event of a liquidation, dissolution or winding up of
the Company, the Company or a liquidating trust created in connection therewith,
shall execute and deliver to the Purchase Contract Agent an agreement
supplemental hereto providing that the Holders of each Outstanding Security
shall have the rights provided by this Section 5.6(b). Such supplemental
agreement shall provide for adjustments which, for events subsequent to the
effective date of such supplemental agreement, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section. The above
provisions of this Section shall similarly apply to successive Reorganization
Events.
(c) All calculations and determinations pursuant to this Section
5.6 shall be made by the Company or its agent and the Purchase Contract Agent
shall have no responsibility with respect thereto.
Section 5.7. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate and the Applicable Market Value
are adjusted as herein provided, the Company shall:
(1) forthwith compute the adjusted Settlement Rate and Applicable
Market Value in accordance with Section 5.6 and prepare and transmit to the
Purchase Contract Agent an Officers' Certificate setting forth the Settlement
Rate and the Applicable Market Value, the
49
method of calculation thereof in reasonable detail, and the facts requiring
such adjustment and upon which such adjustment is based; and
(2) within 10 Business Days following the occurrence of an event
that requires an adjustment to the Settlement Rate and the Applicable
Market Value pursuant to Section 5.6 (or if the Company is not aware of
such occurrence, as soon as practicable after becoming so aware), provide a
written notice to the Holders of the Securities of the occurrence of such
event and a statement in reasonable detail setting forth the method by
which the adjustment to the Settlement Rate and the Applicable Market Value
was determined and setting forth the adjusted Settlement Rate and
Applicable Market Value.
(b) The Purchase Contract Agent shall not at any time be under any
duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the Settlement Rate or the
Applicable Market Value, or with respect to the nature or extent or calculation
of any such adjustment when made, or with respect to the method employed in
making the same. The Purchase Contract Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common
Stock, or of any securities or property, which may at the time be issued or
delivered with respect to any Purchase Contract; and the Purchase Contract Agent
makes no representation with respect thereto. The Purchase Contract Agent shall
not be responsible for any failure of the Company to issue, transfer or deliver
any shares of Common Stock pursuant to a Purchase Contract or to comply with any
of the duties, responsibilities or covenants of the Company contained in this
Article.
Section 5.8. Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights of
the Holders to receive, and the obligations of the Company to pay, Contract
Adjustment Payments and the rights and obligations of Holders to purchase shares
of Common Stock, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Purchase Contract Agent or
the Company, if, on or prior to the Purchase Contract Settlement Date, a
Termination Event shall have occurred. Upon and after the occurrence of a
Termination Event, the Securities shall thereafter represent the right to
receive the Senior Notes or Treasury Portfolio Interests forming a part of such
Securities in the case of Corporate Units, or Treasury Securities in the case of
Treasury Units, in accordance with the provisions of Section 5.4 of the Pledge
Agreement. Upon the occurrence of a Termination Event, the Company shall
promptly but in no event later than two Business Days thereafter give written
notice to the Purchase Contract Agent, the Collateral Agent and the Holders, at
their addresses as they appear in the Register.
Section 5.9. Early Settlement; Cash Settlement.
(A) Early Settlement
(a) Subject to and upon compliance with the provisions of this
Section 5.9, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early ("Early Settlement") on or prior to 5:00 p.m.
(New York City time) on the Election Date, as provided herein. In order to
exercise the right to effect Early Settlement with respect to any Purchase
Contracts, the
50
Holder of the Certificate evidencing Securities shall deliver such Certificate
to the Purchase Contract Agent at the Corporate Trust Office duly endorsed for
transfer to the Company or in blank with the form of Election to Settle Early on
the reverse thereof duly completed and accompanied by payment (payable to the
Company in immediately available funds) in an amount (the "Early Settlement
Amount") equal to:
(1) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement, plus
(2) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date next
preceding any Payment Date to the opening of business on such Payment Date,
an amount equal to the Contract Adjustment Payments payable on such Payment
Date with respect to such Purchase Contracts.
Except as provided in the immediately preceding sentence and subject to the last
paragraph of Section 5.2, no payment shall be made upon Early Settlement of any
Purchase Contract on account of any Contract Adjustment Payments accrued on such
Purchase Contract or on account of any dividends on the Common Stock issued upon
such Early Settlement. If the foregoing requirements are first satisfied with
respect to Purchase Contracts underlying any Securities at or prior to 5:00 p.m.
(New York City time) on a Business Day, such day shall be the "Early Settlement
Date" with respect to such Securities and if such requirements are first
satisfied after 5:00 p.m. (New York City time) on a Business Day or on a day
that is not a Business Day, the "Early Settlement Date" with respect to such
Securities shall be the next succeeding Business Day.
Upon the receipt of such Certificate and Early Settlement Amount from
the Holder, the Purchase Contract Agent shall pay to the Company such Early
Settlement Amount, the receipt of which payment the Company shall confirm in
writing. The Purchase Contract Agent shall then, in accordance with Section 5.6
of the Pledge Agreement, notify the Collateral Agent that (A) such Holder has
elected to effect an Early Settlement, which notice shall set forth the number
of such Purchase Contracts as to which such Holder has elected to effect Early
Settlement, (B) the Purchase Contract Agent has received from such Holder, and
paid to the Company as confirmed in writing by the Company, the related Early
Settlement Amount and (C) all conditions to such Early Settlement have been
satisfied.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Company shall issue, and the Holder shall be entitled to
receive, 0.6148 shares of Common Stock on account of each Purchase Contract as
to which Early Settlement is effected (the "Early Settlement Rate"). The Early
Settlement Rate shall be adjusted in the same manner and at the same time as the
Settlement Rate is adjusted. Computations and notices with respect to any such
adjustments shall be made and given, respectively, as provided in Section 5.7
relating to Settlement Rate adjustments.
(c) No later than the third Business Day after the applicable Early
Settlement Date, the Company shall cause:
51
(1) the shares of Common Stock issuable upon Early Settlement of
Purchase Contracts to be issued and delivered, together with payment in
lieu of any fraction of a share, as provided in Section 5.10; and
(2) the related Senior Notes, in the case of Corporate Units, or the
related Treasury Securities, in the case of Treasury Units, to be released
from the Pledge by the Collateral Agent and transferred, in each case, to
the Purchase Contract Agent for delivery to the Holder thereof or its
designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of shares of Common Stock from the Company and the Senior Notes or
Treasury Securities, as the case may be, from the Securities Intermediary, as
applicable, the Purchase Contract Agent shall, in accordance with the
instructions provided by the Holder thereof on the applicable form of Election
to Settle Early on the reverse of the Certificate evidencing the related
Securities:
(1) transfer to the Holder the Senior Notes or Treasury Securities,
as the case may be, forming a part of such Securities, and
(2) deliver to the Holder a certificate or certificates for the full
number of shares of Common Stock issuable upon such Early Settlement,
together with payment in lieu of any fraction of a share, as provided in
Section 5.10.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the
Purchase Contract Agent shall execute on behalf of the Holder, authenticate and
deliver to the Holder thereof, at the expense of the Company, a Certificate
evidencing the Securities as to which Early Settlement was not effected.
(f) Notwithstanding anything to the contrary contained herein,
Holders may effect Early Settlement of Treasury Units only in integral multiples
of 20 Treasury Units. In addition, if a Tax Redemption Event has occurred and
the Redemption Treasury Portfolio has become part of the Corporate Units,
Purchase Contracts underlying the Corporate Units may be settled early but only
in an aggregate amount of 20 Corporate Units or another integral multiple such
that the Treasury Securities to be released are in integral multiples of $1,000.
(B) Cash Settlement
(a) (i) Unless a Holder has effected an Early Settlement pursuant to
Section 5.9, a Termination Event shall have occurred pursuant to Section
5.8, a Tax Event Redemption has occurred, or a Successful Remarketing shall
have occurred at any time on or before the ninth Business Day preceding the
Purchase Contract Settlement Date, Holders of Corporate Units may settle
their Purchase Contracts in cash by delivering to the Purchase Contract
Agent a notice in substantially the form of Exhibit F hereto regarding its
intention to pay in cash ("Cash Settlement") the Purchase Price for the
shares of Common Stock to be purchased pursuant to the related Purchase
Contract; provided that such notice must be given by 11:00 a.m. (New York
City time) on the sixth Business Day immediately preceding the Purchase
Contract Settlement Date.
52
(ii) A Holder of a Corporate Unit who has so notified the Purchase
Contract Agent of its intention to make a Cash Settlement in accordance
with paragraph (a) (i) above shall pay the Purchase Price to the Securities
Intermediary for deposit in the Collateral Account prior to 11:00 a.m. (New
York City time) on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date in lawful money of the United States by
certified or cashiers' check or wire transfer, in each case in immediately
available funds payable to or upon the order of the Securities Intermediary
and the Securities Intermediary shall instruct the Collateral Agent to
release to the Purchase Contract Agent the Pledged Senior Notes, for
delivery to the Holders of the related Corporate Units who have complied
with this Section. Any cash received by the Collateral Agent shall be
invested promptly by the Securities Intermediary in Permitted Investments
and paid to the Company on the Purchase Contract Settlement Date in
settlement of the Purchase Contract in accordance with the terms of this
Agreement and the Pledge Agreement. Any funds received by the Securities
Intermediary in respect of the investment earnings from the investment in
such Permitted Investments shall be distributed to the Purchase Contract
Agent when received for payment, on a pro rata basis based on the number of
Corporate Units formerly held by such Holder, to the Holders of the related
Corporate Units on the Purchase Contract Settlement Date.
(iii) If a Holder of a Corporate Unit fails to notify the Purchase
Contract Agent of its intention to make a Cash Settlement in accordance
with paragraph (a)(i) above, or notifies the Purchase Contract Agent as
provided in paragraph (a)(i) above of its intention to pay the Purchase
Price in cash but fails to make such payment as required by paragraph
(a)(ii) above, such Holder shall be deemed to have consented (A) to the
disposition of the Pledged Senior Notes on the third Business Day prior to
the Purchase Contract Settlement Date pursuant to the Final Remarketing as
described in Section 5.4 or, (B) if a Failed Remarketing occurs, to the
Collateral Agent, for the benefit of the Company, and upon written
direction of the Company as provided in the Pledge Agreement, exercising
all of its rights as a secured party with respect to any Pledged Senior
Notes under the Pledge Agreement and, subject to applicable law and Section
5.4(j), by either (i) retaining such Senior Notes in full satisfaction of
such Holder's obligations under the related Purchase Contracts or (ii)
selling such Senior Notes in one or more public or private sales.
(iv) By 11:00 a.m. (New York City time), on the fourth Business Day
immediately preceding the Purchase Contract Settlement Date, the Purchase
Contract Agent, based on notices received by the Purchase Contract Agent
pursuant to paragraph (a)(i) above and notice from the Securities
Intermediary regarding cash received by it prior to such time, shall notify
the Remarketing Agent, the Collateral Agent, the Trustee and the Company,
by use of a notice substantially in the form of Exhibit G hereto, of the
aggregate principal amount of Pledged Senior Notes to be remarketed on the
Final Remarketing Date in accordance with the procedures set forth in
Section 5.4(c).
(b) (i) Unless a Holder of a Treasury Unit has effected an Early
Settlement of the related Purchase Contract in the manner described in
Section 5.9 or a Termination Event shall have occurred pursuant to Section
5.8, Holders of Treasury Units may settle their Purchase Contracts in cash
by delivering to the Purchase Contract Agent a notice substantially the
form of Exhibit F hereto regarding its intention to pay in cash the
Purchase Price for the shares of Common Stock to be purchased pursuant to
the related Purchase Contract. To settle its
53
Purchase Contracts in cash pursuant to this Section, such notice must be
given prior to 5:00 p.m. (New York City time), on the second Business Day
immediately preceding the Purchase Contract Settlement Date. Prior to 11:00
a.m. (New York City time), on the next succeeding Business Day, the
Purchase Contract Agent shall notify the Collateral Agent of the receipt of
such notices from such Holders intending to make a Cash Settlement.
(ii) A Holder of a Treasury Unit who has so notified the Purchase
Contract Agent of its intention to make a Cash Settlement in accordance
with paragraph (b)(i) above shall pay the Purchase Price to the Securities
Intermediary for deposit in the Collateral Account prior to 11:00 a.m. (New
York City time), on the Business Day immediately preceding the Purchase
Contract Settlement Date in lawful money of the United States by certified
or cashiers' check or wire transfer, in each case, in immediately available
funds payable to or upon the order of the Securities Intermediary and the
Securities Intermediary shall instruct the Collateral Agent to release to
the Purchase Contract Agent the Pledged Treasury Securities for delivery to
the Holders of the related Treasury Units who have complied with this
Section. Any cash received by the Collateral Agent shall be invested
promptly by the Securities Intermediary in Permitted Investments and paid
to the Company on the Purchase Contract Settlement Date in settlement of
the Purchase Contract in accordance with the terms of this Agreement and
the Pledge Agreement. Any funds received by the Securities Intermediary in
respect of the investment earnings from the investment in such Permitted
Investments shall be distributed to the Purchase Contract Agent when
received for payment to the Holder of the related Treasury Units on the
Purchase Contract Settlement Date.
(iii) If a Holder of a Treasury Unit fails to notify the Purchase
Contract Agent of its intention to make a Cash Settlement in accordance
with paragraph (b)(i) above, or does notify the Purchase Contract Agent as
provided in paragraph (b)(i) above of its intention to pay the Purchase
Price in cash but fails to make such payment as required by paragraph
(b)(ii) above, then upon the maturity of the Pledged Treasury Securities
held by the Securities Intermediary, the principal amount of the Treasury
Securities received by the Securities Intermediary shall be invested
promptly in Permitted Investments. On the Purchase Contract Settlement
Date, an amount equal to the Purchase Price shall be remitted to the
Company as payment thereof without receiving any instructions from the
Holder of the related Treasury Units. In the event the sum of the Proceeds
from the related Pledged Treasury Securities and the investment earnings
earned from such investments is in excess of the aggregate Purchase Price
of the Purchase Contracts being settled thereby, the Collateral Agent shall
cause the Securities Intermediary to distribute such excess to the Purchase
Contract Agent for the benefit of the Holder of the related Treasury Units
when received.
(c) (i) Upon Cash Settlement of any Purchase Contract the Collateral
Agent will in accordance with the terms of the Pledge Agreement cause the
Pledged Senior Notes or the Pledged Treasury Securities, as the case may
be, relating to the relevant Securities to be released from the Pledge,
free and clear of any security interest of the Company, and transferred to
the Purchase Contract Agent for delivery to the Holder thereof or its
designee as soon as practicable; and
(ii) subject to the receipt thereof, the Purchase Contract Agent
shall, by book-entry transfer or other appropriate procedures, in
accordance with written instructions provided by
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the Holder thereof, transfer such Senior Notes or such Treasury Securities,
as the case may be (or, if no such instructions are given to the Purchase
Contract Agent by the Holder, the Purchase Contract Agent shall hold such
Senior Notes or such Treasury Securities, as the case may be, and any
interest payment thereon, in the name of the Purchase Contract Agent or its
nominee in trust for the benefit of such Holder until the expiration of the
time period specified in the abandoned property laws of the relevant state)
and, in connection with such Senior Notes, the Purchase Contract Agent
shall have no responsibility to vote or take any other consensual action
with respect thereto.
Section 5.10. No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Purchase Contract
Settlement Date or upon Early Settlement of any Purchase Contracts. If
Certificates evidencing more than one Purchase Contract shall be surrendered for
settlement at one time by the same Holder, the number of full shares of Common
Stock which shall be delivered upon settlement shall be computed on the basis of
the aggregate number of Purchase Contracts evidenced by the Certificates so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the
Purchase Contract Settlement Date or upon Early Settlement, the Company, through
the Purchase Contract Agent, shall make a cash payment in respect of such
fractional interest in an amount equal to the value of such fractional shares
times the Applicable Market Value. The Company shall provide the Purchase
Contract Agent from time to time with sufficient funds to permit the Purchase
Contract Agent to make all cash payments required by this Section 5.10 in a
timely manner. Promptly after the calculation of the Applicable Market Value,
the Company shall give the Purchase Contract Agent notice thereof. All
calculations and determinations of the Applicable Market Value shall be made by
the Company or its agent and the Purchase Contract Agent shall have no
responsibility with respect thereto.
Section 5.11. Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable
to the initial issuance and delivery of the shares of Common Stock pursuant to
the Purchase Contracts; provided, however, that the Company shall not be
required to pay any such tax or taxes which may be payable in respect of any
exchange of or substitution for a Certificate evidencing a Security or any
issuance of a share of Common Stock in a name other than that of the registered
Holder of a Certificate surrendered in respect of the Securities evidenced
thereby, other than in the name of the Purchase Contract Agent, as custodian for
such Holder, and the Company shall not be required to issue or deliver such
share certificates or Certificates unless the Person or Persons requesting the
transfer or issuance thereof shall have paid to the Company the amount of such
tax or shall have established to the satisfaction of the Company that such tax
has been paid.
ARTICLE VI
Remedies
Section 6.1. Unconditional Right of Holders to Receive Contract Adjustment
Payments and to Purchase Shares of Common Stock
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Each Holder of Corporate Units or Treasury Units shall have
the right, which is absolute and unconditional, (1) (subject to the payment by
such Holder of Contract Adjustment Payments pursuant to Section 5.9(A)(a)), to
receive each Contract Adjustment Payment with respect to the Purchase Contract
constituting a part of such Security on the respective Payment Date for such
Security and (2) to purchase shares of Common Stock pursuant to such Purchase
Contract and, in each such case, to institute suit for the enforcement of any
such Contract Adjustment Payment and right to purchase shares of Common Stock,
and such rights shall not be impaired without the consent of such Holder.
Section 6.2. Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any
right or remedy under this Agreement and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to such Holder,
then and in every such case, subject to any determination in such proceeding,
the Company and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of such
Holder shall continue as though no such proceeding had been instituted.
Section 6.3. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates in the last
paragraph of Section 3.10, no right or remedy herein conferred upon or reserved
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.4. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or
remedy upon a default shall impair any such right or remedy or constitute a
waiver of any such right. Every right and remedy given by this Article or by law
to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
Section 6.5. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of
Corporate Units or Treasury Units, by its acceptance of such Corporate Units or
Treasury Units, shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Agreement, or in any suit against the Purchase Contract Agent for any
action taken, suffered or omitted by it as Purchase Contract Agent, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided that the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Purchase Contract Agent, to any suit instituted by any Holder,
or group of
56
Holders, holding in the aggregate more than 10% of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of interest payable on any Senior Notes or Contract Adjustment
Payments on any Purchase Contract on or after the respective Payment Date
therefor in respect of any Security held by such Holder, or for enforcement of
the right to purchase shares of Common Stock under the Purchase Contracts
constituting part of any Security held by such Holder.
Section 6.6. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Agreement; and the Company expressly waives
(to the extent that it may lawfully do so) all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Purchase Contract Agent or the Holders, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VII
The Purchase Contract Agent
Section 7.1. Certain Duties and Responsibilities.
(a) The Purchase Contract Agent:
(1) undertakes to perform, with respect to the
Securities, such duties and only such duties as are specifically set
forth in this Agreement and the Pledge Agreement, and no implied
covenants or obligations shall be read into this Agreement or the
Pledge Agreement against the Purchase Contract Agent; and
(2) in the absence of bad faith or negligence on its
part, may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Purchase Contract Agent and conforming to
the requirements of this Agreement or the Pledge Agreement, as
applicable, but in the case of any certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Purchase Contract Agent, the Purchase Contract Agent shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Agreement or the Pledge Agreement, as
applicable, but shall have no duty to confirm or investigate the
accuracy of mathematical calculations or other facts stated therein.
(b) No provision of this Agreement or the Pledge
Agreement shall be construed to relieve the Purchase Contract Agent from
liability for its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
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(2) the Purchase Contract Agent shall not be liable for
any error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Purchase Contract Agent was
negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement or the Pledge
Agreement shall require the Purchase Contract Agent to expend or risk
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for
believing that adequate indemnity is not provided to it.
(c) Whether or not therein expressly so provided, every
provision of this Agreement and the Pledge Agreement relating to the conduct or
affecting the liability of or affording protection to the Purchase Contract
Agent shall be subject to the provisions of this Section.
(d) The Purchase Contract Agent is authorized to execute
and deliver the Pledge Agreement in its capacity as Purchase Contract Agent.
Section 7.2. Notice of Default.
Within 30 days after the occurrence of any default by the
Company hereunder of which a Responsible Officer of the Purchase Contract Agent
has actual knowledge, the Purchase Contract Agent shall transmit by mail to the
Company and the Holders of Securities, as their names and addresses appear in
the Register, notice of such default hereunder, unless such default shall have
been cured or waived.
Section 7.3. Certain Rights of Purchase Contract Agent.
Subject to the provisions of Section 7.1:
(1) the Purchase Contract 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;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate,
Issuer Order or Issuer Request, and any resolution of the Board of
Directors of the Company may be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Agreement or
the Pledge Agreement the Purchase Contract Agent shall deem it
desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Purchase Contract
Agent (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate of the Company;
(4) the Purchase Contract Agent may consult with counsel
and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and
58
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Purchase Contract Agent shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Purchase Contract Agent, in its discretion, may make reasonable
further inquiry or investigation into such facts or matters related to
the execution, delivery and performance of the Purchase Contracts as
it may see fit, and, if the Purchase Contract Agent shall determine to
make such further inquiry or investigation, it shall be given a
reasonable opportunity to examine the books, records and premises of
the Company, personally or by agent or attorney; and
(6) the Purchase Contract Agent may execute any of the
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys or an Affiliate and the Purchase
Contract Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney or an Affiliate
appointed with due care by it hereunder.
Section 7.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein shall be taken as the statements
of the Company, and the Purchase Contract Agent assumes no responsibility for
their accuracy. The Purchase Contract Agent makes no representations as to the
validity or sufficiency of either this Agreement or of the Securities, or of the
Pledge Agreement or the Pledge. The Purchase Contract Agent shall not be
accountable for the use or application by the Company of the proceeds in respect
of the Purchase Contracts.
Section 7.5. May Hold Securities.
Any Registrar or any other agent of the Company, or the
Purchase Contract Agent and its Affiliates, in their individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, the Collateral Agent or any other Person with the same rights
it would have if it were not Registrar or such other agent, or the Purchase
Contract Agent.
Section 7.6. Money Held in Custody.
Money held by the Purchase Contract Agent in custody hereunder
need not be segregated from the other funds except to the extent required by law
or provided herein. The Purchase Contract Agent shall be under no obligation to
invest or pay interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
59
Section 7.7. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Purchase Contract Agent compensation
for all services rendered by it hereunder and under the Pledge
Agreement as the Company and the Purchase Contact Agent shall from
time to time agree;
(2) except as otherwise expressly provided for herein,
to reimburse the Purchase Contract Agent upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Purchase Contract Agent in accordance with any provision of this
Agreement and the Pledge Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Purchase Contract Agent and any
predecessor Purchase Contract Agent for, and to hold it harmless
against, any loss, liability or expense 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.
The obligations of the Company under this Section 7.7 shall
survive the termination of this Agreement.
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility.
There shall at all times be a Purchase Contract Agent
hereunder which shall be a corporation organized and doing business under the
laws of the United States of America, any state thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having
(or being a member of a bank holding company having) a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
Federal or state authority and having a corporate trust office in the Borough of
Manhattan, The City of New York, if there be such a corporation in the Borough
of Manhattan, The City of New York, eligible under this Article and willing to
act on reasonable terms. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Purchase Contract Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Purchase Contract
gent and no appointment of a successor Purchase Contract Agent pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Purchase Contract Agent in accordance with the applicable requirements
of Section 7.10.
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(b) The Purchase Contract Agent may resign at any time by
giving written notice thereof to the Company 60 days prior to the effective date
of such resignation. If the instrument of acceptance by a successor Purchase
Contract Agent required by Section 7.10 shall not have been delivered to the
Purchase Contract Agent within 30 days after the giving of such notice of
resignation, the resigning Purchase Contract Agent may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any
time by Act of the Holders of a majority in number of the Outstanding Securities
delivered to the Purchase Contract Agent and the Company. If the instrument of
acceptance by a successor Purchase Contract Agent required by Section 7.10 shall
not have been delivered to the Purchase Contract Agent within 30 days after such
removal, the Purchase Contract Agent being removed may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor Purchase Contract Agent.
(d) If at any time:
(1) the Purchase Contract Agent shall cease to be
eligible under Section 7.8 and shall fail to resign after written
request therefor by the Company or by any such Holder; or
(2) the Purchase Contract Agent shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a receiver of
the Purchase Contract Agent or of its property shall be appointed or
any public officer shall take charge or control of the Purchase
Contract Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Purchase Contract Agent, or (ii) any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition, at the expense of the Company, any court of
competent jurisdiction for the removal of the Purchase Contract Agent and the
appointment of a successor Purchase Contract Agent.
(e) If the Purchase Contract Agent shall resign, be
removed or become incapable of acting, or if a vacancy shall occur in the office
of Purchase Contract Agent for any cause, the Company, by a Board Resolution,
shall promptly appoint a successor Purchase Contract Agent and shall comply with
the applicable requirements of Section 7.10. If no successor Purchase Contract
Agent shall have been so appointed by the Company and accepted appointment in
the manner required by Section 7.10, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of itself and all others
similarly situated, petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Purchase Contract
Agent.
(f) The Company shall give, or shall cause such successor
Purchase Contract Agent to give, notice of each resignation and each removal of
the Purchase Contract Agent and each appointment of a successor Purchase
Contract Agent by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders as their names and addresses appear in the
applicable
61
Register. Each notice shall include the name of the successor Purchase Contract
Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Purchase Contract Agent, every such successor Purchase Contract Agent so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Purchase Contract Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Purchase Contract Agent
shall become effective and such successor Purchase Contract Agent, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, agencies and duties of the retiring Purchase Contract Agent; but, on the
request of the Company or the successor Purchase Contract Agent, such retiring
Purchase Contract Agent shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor Purchase Contract Agent all the
rights, powers and trusts of the retiring Purchase Contract Agent and shall duly
assign, transfer and deliver to such successor Purchase Contract Agent all
property and money held by such retiring Purchase Contract Agent hereunder.
(b) Upon request of any such successor Purchase Contract
Agent, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Purchase Contract Agent
all such rights, powers and agencies referred to in paragraph (a) of this
Section.
(c) No successor Purchase Contract Agent shall accept its
appointment unless at the time of such acceptance such successor Purchase
Contract Agent shall be eligible under this Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Purchase Contract 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 Purchase
Contract Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Purchase Contract Agent,
shall be the successor of the Purchase Contract Agent hereunder, provided such
corporation shall be otherwise eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Certificates shall have been authenticated and
executed on behalf of the Holders, but not delivered, by the Purchase Contract
Agent then in office, any successor by merger, conversion or consolidation to
such Purchase Contract Agent may adopt such authentication and execution and
deliver the Certificates so authenticated and executed with the same effect as
if such successor Purchase Contract Agent had itself authenticated and executed
such Securities.
Section 7.12. Preservation of Information; Communications to Holders.
(a) The Purchase Contract Agent shall preserve, in as
current a form as is reasonably practicable, the names and addresses of Holders
received by the Purchase Contract Agent in its capacity as Registrar.
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(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Purchase Contract Agent, and furnish to
the Purchase Contract Agent reasonable proof that each such applicant has owned
a Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders with respect to their rights under this Agreement
or under the Securities and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Purchase
Contract Agent shall mail to all the Holders copies of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Purchase Contract Agent of the materials to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of such mailing.
Section 7.13. No Obligations of Purchase Contract Agent.
Except to the extent otherwise expressly provided in this
Agreement, the Purchase Contract Agent assumes no obligations and shall not be
subject to any liability under this Agreement, the Pledge Agreement or any
Purchase Contract in respect of the obligations of the Holder of any Security
thereunder. The Company agrees, and each Holder of a Certificate, by his
acceptance thereof, shall be deemed to have agreed, that the Purchase Contract
Agent's execution of the Certificates on behalf of the Holders shall be solely
as agent and attorney-in-fact for the Holders, and that the Purchase Contract
Agent shall have no obligation to perform such Purchase Contracts on behalf of
the Holders, except to the extent expressly provided in Article Five hereof.
Anything contained in this Agreement to the contrary notwithstanding, in no
event shall the Purchase Contract Agent or its officers, employees or agents be
liable for indirect, special, punitive, or consequential loss or damage of any
kind whatsoever, including, but not limited to, lost profits, whether or not the
likelihood of such loss or damage was known to the Purchase Contract Agent and
regardless of the form of action.
Section 7.14. Tax Compliance.
(a) The Company will comply with all applicable
certification, information reporting and withholding (including "backup"
withholding) requirements imposed by applicable tax laws, regulations or
administrative practice with respect to (i) any payments made with respect to
the Securities or (ii) the issuance, delivery, holding, transfer, redemption or
exercise of rights under the Securities. Such compliance shall include, without
limitation, the preparation and timely filing of required returns and the timely
payment of all amounts required to be withheld to the appropriate taxing
authority or its designated agent.
(b) The Purchase Contract Agent shall comply in
accordance with the terms hereof with any written direction received from the
Company with respect to the execution or certification of any required
documentation and the application of such requirements to particular payments or
Holders or in other particular circumstances, and may for purposes of this
Agreement rely on any such direction in accordance with the provisions of
Section 7.1(a)(2) hereof.
(c) The Purchase Contract Agent shall maintain all
appropriate records documenting compliance with such requirements, and shall
make such records available, on written request, to the Company or its
authorized representative within a reasonable period of time after receipt of
such request.
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ARTICLE VIII
Supplemental Agreements
Section 8.1. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Purchase Contract Agent, at any time and from time to
time, may enter into one or more agreements supplemental hereto, in form
satisfactory to the Company and the Purchase Contract Agent, to:
(1) evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company herein and
in the Certificates;
(2) evidence and provide for the acceptance of appointment hereunder
by a successor Purchase Contract Agent;
(3) add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company;
(4) make provision with respect to the rights of Holders pursuant to
the requirements of Section 5.6(b); or
(5) except as provided for in Section 5.6, cure any ambiguity, correct
or supplement any provisions herein which may be inconsistent with any
other provisions herein, or make any other provisions with respect to such
matters or questions arising under this Agreement, provided such action
shall not adversely affect the interests of the Holders.
Section 8.2. Supplemental Agreements With Consent of Holders.
With the consent of the Holders of not less than a majority of the
outstanding Purchase Contracts voting together as one class, by Act of said
Holders delivered to the Company and the Purchase Contract Agent, the Company,
when authorized by a Board Resolution, and the Purchase Contract Agent may enter
into an agreement or agreements supplemental hereto for the purpose of modifying
in any manner the terms of the Purchase Contracts, or the provisions of this
Agreement or the rights of the Holders in respect of the Securities; provided,
however, that, except as contemplated herein, no such supplemental agreement
shall, without the unanimous consent of the Holders of each outstanding Purchase
Contract affected thereby,
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to be Pledged
to secure a Holder's obligations under the Purchase Contract, impair the
right of the Holder of any Purchase Contract to receive interest on the
related Collateral or otherwise adversely affect the Holder's rights in or
to such Collateral;
(3) reduce Contract Adjustment Payments or change any place where, or
the coin or currency in which, Contract Adjustment Payments are payable;
64
(4) impair the right to institute suit for the enforcement of any
Purchase Contract;
(5) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the Purchase
Contract Settlement Date or otherwise adversely affect the Holder's rights
under any Purchase Contract; or
(6) reduce the percentage of the outstanding Purchase Contracts the
consent of whose Holders is required for any such supplemental agreement;
provided that if any amendment or proposal referred to above would adversely
affect only the Corporate Units or the Treasury Units, then only the affected
class of Holder as of the record date, if any, for the Holders entitled to vote
thereon or consent thereto will be entitled to vote or consent on such amendment
or proposal, and such amendment or proposal shall not be effective except with
the vote or consent of Holders of not less than a majority of such class; and
provided, further, that the unanimous consent of the Holders of each outstanding
Purchase Contract of the related Corporate Units or Treasury Units, as the case
may be, shall be required to approve any amendment or proposal specified in
clauses (1) through (6) above.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 8.3. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Purchase Contract Agent shall be
entitled to receive, and (subject to Section 7.1) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental agreement is authorized or permitted by this Agreement. The
Purchase Contract Agent may, but shall not be obligated to, enter into any such
supplemental agreement which affects the Purchase Contract Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 8.4. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Certificates theretofore or thereafter authenticated, executed on behalf of
the Holders and delivered hereunder, shall be bound thereby.
Section 8.5. Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Purchase Contract Agent, bear a
notation in form approved by the Purchase Contract Agent as to any matter
provided for in such supplemental agreement. If the Company shall so determine,
new Certificates so modified as to conform, in the opinion of the Purchase
Contract Agent and the Company, to any such supplemental agreement may be
prepared and executed by the Company and
65
authenticated, executed on behalf of the Holders and delivered by the Purchase
Contract Agent in exchange for Outstanding Certificates.
ARTICLE IX
Merger, Consolidation, Share Exchange, Sale or Conveyance
Section 9.1. Covenant Not to Merge, Consolidate, Enter into a Share Exchange,
Sell or Convey Property Except Under Certain Conditions.
The Company covenants that it will not merge, consolidate or enter
into a share exchange with any other Person or sell, assign, transfer, lease or
convey all or substantially all of its properties and assets to any Person or
group of affiliated Persons in one transaction or a series of related
transactions, unless:
(1) either the Company shall be the continuing corporation, or the
successor (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a state thereof
or the District of Columbia and such corporation shall expressly assume all
the obligations of the Company under the Purchase Contracts, this Agreement
and the Pledge Agreement by one or more supplemental agreements in form
reasonably satisfactory to the Purchase Contract Agent and the Collateral
Agent, executed and delivered to the Purchase Contract Agent and the
Collateral Agent by such corporation; and
(2) the Company or such successor corporation, as the case may be,
shall not, immediately after such merger, consolidation or share exchange,
or such sale, assignment, transfer, lease or conveyance, be in default in
the performance of any covenant or condition hereunder, under any of the
Securities or under the Pledge Agreement.
Section 9.2. Rights and Duties of Successor Corporation.
In case of any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance and upon any such assumption by a
successor corporation in accordance with Section 9.1, such successor corporation
shall succeed to and be substituted for the Company with the same effect as if
it had been named herein as the Company. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the name of
Dominion Resources, Inc., any or all of the Certificates evidencing Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Purchase Contract 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 Purchase Contract
Agent shall authenticate and execute on behalf of the Holders and deliver any
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Purchase Contract Agent for authentication and
execution, and any Certificate evidencing Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Purchase
Contract Agent for that purpose. All the Certificates issued shall in all
respects have the same legal rank and benefit under this Agreement as the
Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Certificates had been issued at the date of
the execution hereof.
66
In case of any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance such change in phraseology and form
(but not in substance) may be made in the Certificates evidencing Securities
thereafter to be issued as may be appropriate.
Section 9.3. Officers' Certificate and Opinion of Counsel Given to Purchase
Contract Agent.
The Purchase Contract Agent, subject to Sections 7.1 and 7.3,
shall receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, share exchange, sale, assignment,
transfer, lease or conveyance, and any such assumption, complies with the
provisions of this Article and that all conditions precedent to the consummation
of any such merger, consolidation, share exchange, sale, assignment, transfer,
lease or conveyance have been met.
ARTICLE X
Covenants
Section 10.1. Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders
from time to time of the Securities that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City
of New York an office or agency where Certificates may be:
(1) presented or surrendered for acquisition of shares of Common
Stock upon settlement of the Purchase Contracts on the Purchase Contract
Settlement Date or Early Settlement and for transfer of Collateral upon
occurrence of a Termination Event;
(2) surrendered for registration of transfer or exchange, for a
Collateral Substitution or re-establishment of a Corporate Unit; and
and where notices and demands to or upon the Company in respect of the
Securities and this Agreement may be served. The Company will give prompt
written notice to the Purchase Contract Agent of the location, and any change in
the location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Purchase Contract Agent with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Company hereby appoints the Purchase Contract Agent as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where Certificates may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will
give
67
prompt written notice to the Purchase Contract Agent of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates as the place of payment for the Securities the
Corporate Trust Office and appoints the Purchase Contract Agent at its Corporate
Trust Office as paying agent in such city.
Section 10.3. Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase Contract
Settlement Date reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock the full number of shares of Common
Stock issuable against tender of payment in respect of all Purchase Contracts
constituting a part of the Securities evidenced by Outstanding Certificates.
Section 10.4. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may
be issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
Section 10.5. Statements of Officers of the Company as to Default.
The Company will deliver to the Purchase Contract Agent, within
120 days after the end of each fiscal year of the Company (which as of the date
hereof is December 31) ending after the date hereof, an Officers' Certificate
(one of the signers of which shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company), stating
whether or not to the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms, provisions and
conditions hereof, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
Section 10.6. ERISA.
Each Holder from time to time of the Corporate Units which is a
Plan hereby represents that its acquisition of the Corporate Units and the
holding of the same satisfies the applicable fiduciary requirements of ERISA and
that it is entitled to exemption relief from the prohibited transaction
provisions of ERISA and the Code in accordance with one or more prohibited
transaction exemptions or otherwise will not result in a nonexempt prohibited
transaction.
68
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
DOMINION RESOURCES, INC.
By: ___________________________________
Name:
Title:
JPMORGAN CHASE BANK,
as Purchase Contract Agent
By: ___________________________________
Name:
Title:
EXHIBIT A
FORM OF FACE OF CORPORATE UNIT CERTIFICATE
This certificate is a global certificate within the meaning of the Purchase
Contract Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company, a New York corporation (the "Depositary"), or a
nominee of the Depositary. This certificate is exchangeable for certificates
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Purchase Contract Agreement and no
transfer of this certificate (other than a transfer of this certificate as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this certificate is presented by an authorized representative of the
Depositary for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
is requested by an authorized representative of the Depositary (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), any transfer, pledge or other use
hereof for value or otherwise by or to any person is wrongful since the
registered owner hereof, Cede & Co., has an interest herein./1/
No. _______ CUSIP No. 25746U 40 6
Number of Corporate Units ____________
DOMINION RESOURCES, INC.
Corporate Units
This Corporate Unit Certificate certifies that [Cede & Co.]/2/,
or registered assigns, is the registered Holder of the number of Corporate Units
set forth above [or such other number as set forth in the Schedule of Increases
and Decreases in Global Certificate attached hereto] /3/. Each Corporate Unit
consists of (i) the rights and obligations of the Holder under one Purchase
Contract with Dominion Resources, Inc., a Virginia corporation (the "Company"),
and (ii) either (a) the beneficial ownership by the Holder of one 2002 Series A
5.75% Senior Note, due May 15, 2008 (the "Senior Note") of the Company, having a
principal amount of $50, subject to the Pledge of such Senior Note by such
Holder pursuant to the Pledge Agreement or (b) following a Successful
Remarketing or a Tax Redemption Event of the Senior Notes, the beneficial
ownership by the Holder of a Treasury Portfolio Interest, subject to the Pledge
of such Treasury Portfolio Interest pursuant to the Pledge Agreement. All
capitalized terms used herein which are defined in the Purchase Contract
Agreement (as defined on the reverse hereof) have the meaning set forth therein.
________________
/1/ Insert in Global Certificates only.
/2/ Insert in Global Certificates only.
/3/ Insert in Global Certificates only.
Pursuant to the Pledge Agreement, the Senior Note or Treasury
Portfolio Interest, as the case may be, constituting part of each Corporate Unit
evidenced hereby has been pledged to the Collateral Agent, for the benefit of
the Company, to secure the obligations of the Holder under the Purchase Contract
comprising a portion of such Corporate Units.
Each Purchase Contract evidenced hereby obligates the Holder of
this Corporate Unit Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date, at a price equal to $50 in cash (the "Stated
Amount"), a number of shares of Common Stock, equal to the Settlement Rate,
unless on or prior to the Purchase Contract Settlement Date there shall have
occurred a Termination Event or an Early Settlement with respect to the
Corporate Units of which such Purchase Contract is a part, all as provided in
the Purchase Contract Agreement and more fully described on the reverse hereof.
The purchase price (the "Purchase Price") for the shares of Common Stock
purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Purchase Contract Settlement Date by cash or by
application of payment received in respect of the principal amount with respect
to each Pledged Senior Note pursuant to the Remarketing or payment received in
respect of each Pledged Treasury Portfolio Interest, as the case may be, pledged
to secure the obligations under such Purchase Contract of the Holder of the
Corporate Units of which such Purchase Contract is a part.
The Company shall pay on February 15, May 15, August 15 and
November 15 of each year (each, a "Payment Date"), commencing May 15, 2002, in
respect of each Purchase Contract forming part of a Corporate Unit evidenced
hereby, an amount (the "Contract Adjustment Payments") equal to (a) if a Reset
Transaction has not occurred, 3.00% per annum of the Stated Amount or (b)
following the occurrence of a Reset Transaction, the Adjusted Contract
Adjustment Payment Rate related to such Reset Transaction until any such
succeeding Reset Transaction shall occur, in either case, computed on the basis
of (i) for any full quarterly period, a 360-day year of twelve 30-day months,
(ii) for any period shorter than a full quarterly period, a 30-day month and
(iii) for periods less than a month, the actual number of days elapsed per
30-day period. Such Contract Adjustment Payments shall be payable to the Person
in whose name this Corporate Unit Certificate (or a Predecessor Corporate Unit
Certificate) is registered at the close of business on the Record Date for such
Payment Date.
Unless a Successful Remarketing or a Tax Event Redemption shall
have occurred, interest on the Senior Notes, the beneficial ownership of which
is evidenced hereby, is payable quarterly in arrears on each Payment Date. Such
interest payments shall be payable to the Person in whose name this Corporate
Unit Certificate (or a Predecessor Corporate Unit Certificate) is registered at
the close of business on the Record Date for such Payment Date. Following a
Successful Remarketing or a Tax Event Redemption, the portion of the Treasury
Portfolio Return equal to the interest payable on such Senior Notes will be paid
on the Purchase Contract Settlement Date. Such portion of the Treasury Portfolio
Return shall be payable to the Person in whose name this Corporate Unit
Certificate (or a Predecessor Corporate Unit Certificate) is registered at the
close of business on the Record Date for such Payment Date which is the Purchase
Contract Settlement Date.
Contract Adjustment Payments and (i) interest payments on the
Senior Notes or (ii) distributions on the Treasury Portfolio, as the case may
be, will be payable at the office of the
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Purchase Contract Agent in The City of New York or, at the option of the
Company, by check mailed to the address of the Person entitled thereto as such
address appears on the Corporate Unit Register.
Reference is hereby made to the further provisions set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Purchase Contract Agent by manual signature, this Corporate Unit
Certificate shall not be entitled to any benefit under the Purchase Contract
Agreement or the Pledge Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
DOMINION RESOURCES, INC.
By: ______________________________
Name:
Title:
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts evidenced hereby)
By: JPMorgan Chase Bank
not individually but solely as
Attorney-in-Fact of such Holder
By: _______________________________
Name:
Title:
Dated:
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CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Corporate Unit Certificates referred to in the
within mentioned Purchase Contract Agreement.
By: JPMORGAN CHASE BANK,
as Purchase Contract Agent
By: ______________________________
Authorized Officer
A-4
(FORM OF REVERSE OF CORPORATE UNIT CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of March 20, 2002 (as may be supplemented from time
to time, the "Purchase Contract Agreement"), between the Company and JPMorgan
Chase Bank, as Purchase Contract Agent (including its successors hereunder, the
"Purchase Contract Agent"), to which Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Purchase Contract Agent, the Company, and the Holders and of
the terms upon which the Corporate Unit Certificates are, and are to be,
executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of
this Corporate Unit Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price"), a number of shares of Common Stock of the Company equal to
the Settlement Rate, unless, on or prior to the Purchase Contract Settlement
Date, there shall have occurred a Termination Event with respect to the Security
of which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is equal to
or greater than $81.33 (the "Threshold Appreciation Price"), 0.6148 shares
of Common Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price but greater than $59.80 (the "Reference Price"), the
number of shares of Common Stock per Purchase Contract having a value,
based on the Applicable Market Value, equal to the Stated Amount; and
(3) if the Applicable Market Amount is less than or equal to the
Reference Price, 0.8361 shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement.
No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, as provided in the Purchase Contract
Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of the
related Corporate Unit to purchase at the Purchase Price, and the Company to
sell, a number of newly issued shares of Common Stock equal to the Early
Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date.
A-5
The "Closing Price" per share of Common Stock on any date of
determination means
(1) the closing sale price (or, if no closing price is reported,
the last reported sale price) per share of Common Stock on the New York
Stock Exchange (the "NYSE") on such date;
(2) if the Common Stock is not listed for trading on the NYSE on
any such date, the closing sale price per share as reported in the
composite transactions for the principal United States securities exchange
on which the Common Stock is so listed;
(3) if the Common Stock is not so listed on a United States
national or regional securities exchange, the closing sale price per share
as reported by The Nasdaq Stock Market;
(4) if the Common Stock is not so reported, the last quoted bid
price per share for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the
mid-point of the last bid and ask prices per share of the Common Stock on
such date from at least three nationally recognized independent investment
banking firms retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement,
the Holder of this Corporate Unit Certificate shall pay the Purchase Price for
the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby by (i) effecting a Cash Settlement or an Early Settlement or a
Remarketing of the related Pledged Senior Notes or (ii) application of payments
received in respect of the Pledged Treasury Portfolio Interest acquired form the
proceeds of a Remarketing or Tax Event Redemption of the related Pledged Senior
Notes relating to the Corporate Units represented by this Corporate Unit
Certificate. As provided in the Purchase Contract Agreement, upon the occurrence
of a Failed Remarketing, the Collateral Agent shall exercise, for the benefit of
the Company, its rights as a secured creditor with respect to the Pledged Senior
Notes related to this Corporate Unit Certificate and, subject to applicable law,
may, among other things, (i) retain such Pledged Senior Notes in full
satisfaction of the Holders' obligations under the Purchase Contracts or (ii)
sell such Pledged Senior Notes in one or more public or private sales, the
proceeds, if any, of such sale to constitute full satisfaction of the Holders'
obligations under the Purchase Contracts. With respect to such Pledged Senior
Notes which are the subject of a Failed Remarketing, any accrued and unpaid
interest payments on such Pledged Senior Notes will become payable by the
Company to the Holder of this Corporate Unit Certificate in the manner provided
for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates therefor to
the Holder unless it shall have received
A-6
payment of the aggregate purchase price for the shares of Common Stock to be
purchased thereunder in the manner herein set forth which payment, in the case
of a Failed Remarketing shall occur by the resale of Pledged Senior Notes or
foreclosure on and retention of such Pledged Senior Notes pursuant to the
Purchase Contract Agreement and the Pledge Agreement.
Each Purchase Contract evidenced hereby and all obligations and
rights of the Company and the Holder thereunder shall terminate if a Termination
Event shall occur. Upon the occurrence of a Termination Event, the Company shall
give written notice to the Purchase Contract Agent and to the Holders, at their
addresses as they appear in the Corporate Unit Register. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Senior Note or Pledged Treasury Portfolio Interest, as the case may be,
forming a part of each Corporate Unit from the Pledge. A Corporate Unit shall
thereafter represent the right to receive the Senior Note or Treasury Portfolio
Interest, as the case may be, forming a part of such Corporate Unit in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
Under the terms of the Pledge Agreement, the Purchase Contract
Agent will be entitled to exercise the voting and any other consensual rights
pertaining to the Pledged Senior Notes. Upon receipt of notice of any meeting at
which holders of Senior Notes are entitled to vote or upon the solicitation of
consents, waivers or proxies of holders of Senior Notes, the Purchase Contract
Agent shall, as soon as practicable thereafter, mail to the Corporate Unit
Holders a notice:
(1) containing such information as is contained in the notice or
solicitation;
(2) stating that each Corporate Unit Holder on the record date set
by the Purchase Contract Agent therefor (which, to the extent possible,
shall be the same date as the record date for determining the holders of
Senior Notes entitled to vote) shall be entitled to instruct the Purchase
Contract Agent as to the exercise of the voting rights pertaining to the
Senior Notes constituting a part of such Holder's Corporate Units; and
(3) stating the manner in which such instructions may be given.
Upon the written request of the Corporate Unit Holders on such record date, the
Purchase Contract Agent shall endeavor insofar as practicable to vote or cause
to be voted, in accordance with the instructions set forth in such requests, the
maximum aggregate principal amount of Senior Notes as to which any particular
voting instructions are received. In the absence of specific instructions from
the Holder of a Corporate Unit, the Purchase Contract Agent shall abstain from
voting the Senior Notes evidenced by such Corporate Units.
The Corporate Unit Certificates are issuable only in registered
form and only in denominations of a single Corporate Unit and any integral
multiple thereof. The transfer of any Corporate Unit Certificate will be
registered and Corporate Unit Certificates may be exchanged as provided in the
Purchase Contract Agreement. The Corporate Unit Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company and
the Purchase Contract Agent may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. A Holder who
elects to substitute a Treasury Security for Senior Notes, thereby creating
Xxxxxxxx Xxxxx,
X-0
shall be responsible for any fees or expenses payable in connection therewith.
Except as provided in the Purchase Contract Agreement, for so long as the
Purchase Contract underlying a Corporate Unit remains in effect, such Corporate
Unit shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Corporate Unit in respect of the Senior Note
or Treasury Portfolio Interest and Purchase Contract constituting such Corporate
Unit may be transferred and exchanged only as a Corporate Unit.
A holder of a Corporate Unit may substitute for the Pledged Senior
Notes securing its obligation under the related Purchase Contract Treasury
Securities in an aggregate principal amount at maturity equal to the aggregate
principal amount of the Pledged Senior Notes in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement. From and after such
Collateral Substitution, the Security for which such Pledged Treasury Securities
secures the Holder's obligation under the Purchase Contract shall be referred to
as a "Treasury Unit." A Holder may make such Collateral Substitution only in
integral multiples of 20 Corporate Units for 20 Treasury Units. Such Collateral
Substitution may cause the equivalent aggregate principal amount of this
Certificate to be increased or decreased; provided, however, this Corporate Unit
Certificate shall not represent more than such maximum amount of Corporate Units
as shall at the time be prescribed by the applicable Clearing Agency. All such
adjustments to the equivalent aggregate principal amount of this Corporate Unit
Certificate shall be duly recorded by placing an appropriate notation on the
Schedule attached hereto.
A Holder of Treasury Units may recreate Corporate Units by
delivering to the Securities Intermediary Senior Notes with an aggregate
principal amount equal to the aggregate principal amount at maturity of the
Pledged Treasury Securities in exchange for the release of such Pledged Treasury
Securities in accordance with the terms of the Purchase Contract Agreement and
the Pledge Agreement.
The Company shall pay, on each Payment Date, the Contract
Adjustment Payments payable in respect of each Purchase Contract to the Person
in whose name the Corporate Unit Certificate evidencing such Purchase Contract
is registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Purchase
Contract Agent in The City of New York or, at the option of the Company, by
check mailed to the address of the Person entitled thereto at such address as it
appears on the Corporate Unit Register.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights of
the Holders to receive, and the obligations of the Company to pay, Contract
Adjustment Payments, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Purchase Contract Agent or
the Company, if, on or prior to the Purchase Contract Settlement Date, a
Termination Event shall have occurred. Upon the occurrence of a Termination
Event, the Company shall promptly but in no event later than two Business Days
thereafter give written notice to the Purchase Contract Agent, the Collateral
Agent and the Holders, at their addresses as they appear in the Corporate Unit
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Senior Notes or Treasury Portfolio Interest from the
Pledge in accordance with the provisions of the Pledge Agreement. A Corporate
Unit shall thereafter represent the right to receive the Senior Note or
A-8
Treasury Portfolio Interest forming a part of such Corporate Unit in accordance
with the terms of the Purchase Contract Agreement and the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities may be settled early ("Early Settlement") as provided in
the Purchase Contract Agreement. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts evidenced by this Corporate
Unit Certificate, the Holder of this Corporate Unit Certificate shall deliver
this Corporate Unit Certificate to the Purchase Contract Agent at the Corporate
Trust Office duly endorsed for transfer to the Company or in blank with the form
of Election to Settle Early set forth below duly completed and accompanied by
payment in the form of immediately available funds payable to the order of the
Company in an amount (the "Early Settlement Amount") equal to:
(1) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement, plus
(2) if such delivery is made with respect to any Purchase
Contracts during the period from the close of business on any Record Date
for any Payment Date to the opening of business on such Payment Date, an
amount equal to the Contract Adjustment Payments payable on such Payment
Date with respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Pledged Senior Notes underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a Corporate Unit as to which Early
Settlement is effected equal to the Early Settlement Rate. The Early Settlement
Rate shall initially be equal to 0.6148 shares of Common Stock and shall be
adjusted in the same manner and at the same time as the Settlement Rate is
adjusted as provided in the Purchase Contract Agreement.
Upon registration of transfer of this Corporate Unit Certificate,
the transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Purchase Contract
Agent pursuant to the Purchase Contract Agreement), under the terms of the
Purchase Contract Agreement and the Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by this Corporate Unit Certificate. The Company covenants and agrees,
and the Holder, by its acceptance hereof, likewise covenants and agrees, to be
bound by the provisions of this paragraph.
The Holder of this Corporate Unit Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the
related Purchase Contracts forming part of the Corporate Units evidenced hereby
on its behalf as its attorney-in-fact, expressly withholds any consent to the
assumption (i.e., affirmance) of the Purchase Contracts by the Company or its
trustee in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform its obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, authorizes the
Purchase Contract Agent to enter into and perform the Purchase Contract
Agreement and the Pledge Agreement on its behalf as its attorney-in-fact, and
consents to the Pledge of the Senior Notes underlying this Corporate Unit
Certificate pursuant to the Pledge Agreement. The Holder further
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covenants and agrees that, to the extent and in the manner provided in the
Purchase Contract Agreement and the Pledge Agreement, but subject to the terms
thereof, payments in respect of the aggregate principal amount of the Pledged
Senior Notes or Pledged Treasury Portfolio Interest, as the case may be, shall
be paid on the Purchase Contract Settlement Date by the Collateral Agent to the
Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
payments.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of a majority
of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Purchase Contract Agent and its Affiliates and
any agent of the Company or the Purchase Contract Agent may treat the Person in
whose name this Corporate Unit Certificate is registered as the owner of the
Corporate Units evidenced hereby for the purpose of receiving payments of
interest payable quarterly on the Senior Notes, receiving payments of Contract
Adjustment Payments, performance of the Purchase Contracts and for all other
purposes whatsoever, whether or not any payments in respect thereof be overdue
and notwithstanding any notice to the contrary, and neither the Company, the
Purchase Contract 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.
Upon settlement of the Purchase Contracts, the Holder will be entitled to all of
the rights of a holder of shares of Common Stock, including, without limitation,
the right to vote and receive dividends and other payments and to consent and
receive notice as a shareholder in respect of the meetings of shareholders and
for the election of directors of the Company and for all other matters, and all
other rights whatsoever as a shareholder of the Company.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Purchase Contract Agent.
A-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ---------------Custodian---------------
(cust) (minor)
Under Uniform Gifts to Minors Act of _______
___________________________________________
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
Additional abbreviations may also be used though not in the above list.
_________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Corporate Unit Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ________________________________________
_______________________________________ attorney to transfer said Corporate Unit
Certificates on the books of Dominion Resources, Inc. with full power of
substitution in the premises.
Dated: ___________________ ______________________________________________
Signature
NOTICE: The signature to this assignment must
correspond with the name as it appears upon
the face of the within Corporate Unit
Certificates in every particular, without
alteration or enlargement or any change
whatsoever.
A-11
Signature Guarantee: ___________________________________
A-12
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of Corporate
Units evidenced by this Corporate Unit Certificate be registered in the name of,
and delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: _______________________ ______________________________________
Signature
Signature Guarantee: _________________
(if assigned to another person)
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please (i) print
such Person's name and address and (ii)
provide a guarantee of your signature:
Please print name and address of
Registered Holder:
_____________________________________ ______________________________________
Name Name
_____________________________________ ______________________________________
Address Address
_____________________________________ ______________________________________
_____________________________________ ______________________________________
_____________________________________ ______________________________________
Social Security or other
Taxpayer Identification _____________________________________
Number, if any
A-13
ELECTION TO SETTLE EARLY
The undersigned Holder of this Corporate Unit Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Corporate Units evidenced by this Corporate
Unit Certificate specified below. The undersigned Holder directs that a
certificate for shares of Common Stock deliverable upon such Early Settlement be
registered in the name of, and delivered, together with a check in payment for
any fractional share and any Corporate Unit Certificate representing any
Corporate Units evidenced hereby as to which Early Settlement 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
Senior Notes or Treasury Securities deliverable upon such Early Settlement will
be transferred in accordance with the transfer instructions set forth below. If
shares are to be registered in the name of a Person other than the undersigned,
the undersigned will pay any transfer tax payable incident thereto.
Dated: ___________________________ ___________________________________
Signature
Signature Guarantee: _____________________________________
A-14
Number of Securities evidenced hereby as to which Early
Settlement of the related Purchase Contracts is being elected:
If shares of Common Stock or Corporate REGISTERED HOLDER
Unit Certificates are to be registered
in the name of and delivered to, and
Pledged Senior Notes are to be
transferred to, a Person other than the
Holder, please print such Person's name
and address:
Please print name and address of
Registered Holder:
_____________________________________ ______________________________________
Name Name
_____________________________________ ______________________________________
Address Address
_____________________________________ ______________________________________
_____________________________________ ______________________________________
_____________________________________ ______________________________________
Social Security or other
Taxpayer Identification _____________________________________
Number, if any
A-15
Transfer Instructions for Pledged Senior Notes or Treasury Securities
Transferable Upon Early Settlement or a Termination Event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
A-16
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
--------------------------------------------------------------------------------------------------------------------------------
Number of Corporate
Amount of decrease in Amount of increase in Units evidenced by this Signature of authorized
Number of Corporate Number of Corporate Global Certificate officer of Purchase
Units evidenced by the Units evidenced by the following such Contract Agent or
Date Global Certificate Global Certificate decrease or increase Securities Custodian
--------------------------------------------------------------------------------------------------------------------------------
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________________
X-00
XXXXXXX X
FORM OF FACE OF TREASURY UNIT CERTIFICATE
This certificate is a global certificate within the meaning of the Purchase
Contract Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company, a New York corporation (the "Depositary"), or a
nominee of the Depositary. This certificate is exchangeable for certificates
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Purchase Contract Agreement and no
transfer of this certificate (other than a transfer of this certificate as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this certificate is presented by an authorized representative of the
Depositary for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
is requested by an authorized representative of the Depositary (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), any transfer, pledge or other use
hereof for value or otherwise by or to any person is wrongful since the
registered owner hereof, Cede & Co., has an interest herein./1/
No. _______ CUSIP No. 25746U 50 5
Number of Treasury Units ________
DOMINION RESOURCES, INC.
Treasury Units
This Treasury Unit Certificate certifies that [Cede & Co.]/2/, or
registered assigns, is the registered Holder of the number of Treasury Units set
forth above [or such other number as set forth in the Schedule of Increases and
Decreases in Global Certificate attached hereto]/3/. Each Treasury Unit consists
of (i) the rights and obligations of the Holder under one Purchase Contract with
Dominion Resources, Inc., a Virginia corporation (the "Company") and (ii) a 1/20
undivided beneficial ownership interest of a Treasury Security having a
principal amount at maturity equal to $1,000 and maturing on or prior to May 15,
2006. All capitalized terms used herein which are defined in the Purchase
Contract Agreement (as defined on the reverse hereof) have the meaning set forth
therein.
Pursuant to the Pledge Agreement, the Treasury Securities
constituting part of each Treasury Unit evidenced hereby have been pledged to
the Collateral Agent, for the benefit of the Company, to secure the obligations
of the Holder under the Purchase Contract comprising a portion of such Treasury
Unit.
______________
/1/ Insert in Global Certificates only.
/2/ Insert in Global Certificates only.
/3/ Insert in Global Certificates only.
Each Purchase Contract evidenced hereby obligates the Holder of
this Treasury Unit Certificate to purchase, and the Company, to sell, on the
Purchase Contract Settlement Date, at a price equal to $50 in cash (the "Stated
Amount"), a number of shares of Common Stock equal to the Settlement Rate,
unless on or prior to the Purchase Contract Settlement Date there shall have
occurred a Termination Event or an Early Settlement with respect to the Treasury
Unit of which such Purchase Contract is a part, all as provided in the Purchase
Contract Agreement and more fully described on the reverse hereof. The purchase
price (the "Purchase Price") for the shares of Common Stock purchased pursuant
to each Purchase Contract evidenced hereby, if not paid earlier, shall be paid
on the Purchase Contract Settlement Date by application of the Proceeds from the
Treasury Securities at maturity pledged to secure the obligations under such
Purchase Contract of the Holder of the Treasury Unit of which such Purchase
Contract is a part.
The Company shall pay on February 15, May 15, August 15 and
November 15 of each year (each, a "Payment Date"), commencing May 15, 2002, in
respect of each Purchase Contract evidenced hereby, an amount (the "Contract
Adjustment Payments") equal to (a) if a Reset Transaction has not occurred,
3.00% per annum of the Stated Amount or (b) following the occurrence of a Reset
Transaction, the Adjusted Contract Adjustment Payment Rate related to such Reset
Transaction until any such succeeding Reset Transaction shall occur, in either
case, computed on the basis of (i) for any full quarterly period, a 360-day year
of twelve 30-day months, (ii) for any period shorter than a full quarterly
period, a 30-day month and (iii) for periods less than a month, the actual
number of days elapsed per 30-day period). Such Contract Adjustment Payments
shall be payable to the Person in whose name this Treasury Unit Certificate (or
a Predecessor Treasury Unit Certificate) is registered at the close of business
on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the
Purchase Contract Agent in The City of New York or, at the option of the
Company, by check mailed to the address of the Person entitled thereto as such
address appears on the Treasury Unit Register.
Reference is hereby made to the further provisions set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Purchase Contract Agent by manual signature, this Treasury Unit
Certificate shall not be entitled to any benefit under the Purchase Contract
Agreement or the Pledge Agreement or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
DOMINION RESOURCES, INC.
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts evidenced hereby)
By: JPMorgan Chase Bank,
not individually but solely as
Attorney-in-Fact of such Holder
By: ___________________________________
Name:
Title:
Dated:
B-3
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Treasury Unit Certificates referred to in the
within mentioned Purchase Contract Agreement.
By: JPMORGAN CHASE BANK,
as Purchase Contract Agent
By: _______________________________
Authorized Officer
B-4
(FORM OF REVERSE OF TREASURY UNIT CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of March 20, 2002 (as may be supplemented from time
to time, the "Purchase Contract Agreement") between the Company and JPMorgan
Chase Bank as Purchase Contract Agent (including its successors thereunder,
herein called the "Purchase Contract Agent"), to which the Purchase Contract
Agreement and supplemental agreements thereto reference is hereby made for a
description of the respective rights, limitations of rights, obligations, duties
and immunities thereunder of the Purchase Contract Agent, the Company and the
Holders and of the terms upon which the Treasury Unit Certificates are, and are
to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of
this Treasury Unit Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price") a number of shares of Common Stock of the Company equal to the
Settlement Rate, unless on or prior to the Purchase Contract Settlement Date:
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is equal to
or greater than $81.33 (the "Threshold Appreciation Price"), 0.6148 shares
of Common Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price but greater than $59.80 (the "Reference Price"), the
number of shares of Common Stock per Purchase Contract having a value,
based on the Applicable Market Value, equal to the Stated Amount; and
(3) if the Applicable Market Amount is less than or equal to the
Reference Price, then 0.8361 shares of Common Stock per Purchase Contract;
in each case subject to adjustment as provided in the Purchase Contract
Agreement.
No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, as provided in the Purchase Contract
Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of the
related Treasury Unit to purchase at the Purchase Price for cash, and the
Company to sell, a number of newly issued shares of Common Stock equal to the
Early Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing
Prices per share of Common Stock on each of the 20 Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date.
B-5
The "Closing Price" per share of Common Stock on any date of
determination means:
(1) the closing sale price (or, if no closing price is reported, the
last reported sale price) per share of Common Stock on the New York Stock
Exchange (the "NYSE") on such date;
(2) if the Common Stock is not listed for trading on the NYSE on any
such date, the closing sale price per share as reported in the composite
transactions for the principal United States securities exchange on which
the Common Stock is so listed;
(3) if the Common Stock is not so listed on a United States national
or regional securities exchange, the closing sale price per share as
reported by The Nasdaq Stock Market;
(4) if the Common Stock is not so reported, the last quoted bid price
per share for the Common Stock in the over-the-counter market as reported
by the National Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-point
of the last bid and ask prices per share of the Common Stock on such date
from at least three nationally recognized independent investment banking
firms retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Treasury Unit shall pay the Purchase Price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby
either by effecting a Cash Settlement or an Early Settlement of each such
Purchase Contract or by applying the principal amount at maturity of the Pledged
Treasury Securities underlying such Holder's Treasury Units. A Holder of
Treasury Units who does not effect, prior to 11:00 a.m. (New York City time) on
the Business Day immediately preceding the Purchase Contract Settlement Date, an
effective Cash Settlement or an Early Settlement, shall pay the Purchase Price
for the shares of Common Stock to be issued under the related Purchase Contract
from the proceeds of the Pledged Treasury Securities.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
Each Purchase Contract evidenced hereby and all obligations and rights
of the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Purchase Contract Agent and to the Holders, at their
addresses as they appear in the Treasury Unit Register. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Treasury
B-6
Securities (as defined in the Pledge Agreement) forming a part of each Treasury
Unit. A Treasury Unit shall thereafter represent the right to receive the
interest in the Treasury Security forming a part of such Treasury Unit, in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Treasury Unit Certificates are issuable only in registered form and
only in denominations of a single Treasury Unit and any integral multiple
thereof. The transfer of any Treasury Unit Certificate will be registered and
Treasury Unit Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Treasury Unit Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents permitted by the
Purchase Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Purchase Contract
Agent may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. A Holder who elects to
substitute Senior Notes for Treasury Securities, thereby recreating Corporate
Units, shall be responsible for any fees or expenses associated therewith.
Except as provided in the Purchase Contract Agreement, for so long as the
Purchase Contract underlying a Treasury Unit remains in effect, such Treasury
Unit shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Treasury Unit in respect of the Treasury
Security and the Purchase Contract constituting such Treasury Unit may be
transferred and exchanged only as a Treasury Unit.
A Holder of Treasury Units may recreate Corporate Units by delivering
to the Collateral Agent Senior Notes with a principal amount equal to the
aggregate principal amount at maturity of the Pledged Treasury Securities in
exchange for the release of such Pledged Treasury Securities in accordance with
the terms of the Purchase Contract Agreement and the Pledge Agreement. From and
after such Collateral Substitution, the Holder's Security shall be referred to
as a "Corporate Unit." Such Collateral Substitution may cause the equivalent
aggregate principal amount of this Certificate to be increased or decreased;
provided, however, this Treasury Unit Certificate shall not represent more than
such maximum amount of Treasury Units as shall at the time be prescribed by the
applicable Clearing Agency. All such adjustments to the equivalent aggregate
principal amount of this Treasury Unit Certificate shall be duly recorded by
placing an appropriate notation on the Schedule attached hereto.
A Holder of Corporate Units may recreate Treasury Units by delivering
to the Collateral Agent Treasury Securities in an aggregate principal amount at
maturity equal to the aggregate principal amount of the Pledged Senior Notes in
exchange for the release of such Pledged Senior Notes in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement. Any such
recreation of a Treasury Units may be effected only in multiples of 20 Corporate
Units for 20 Treasury Units.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Treasury Unit Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Purchase
Contract Agent in The City of New York or, at the option of the Company, by
check mailed
B-7
to the address of the Person entitled thereto at such address as it appears on
the Treasury Unit Register.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Purchase Contract Agent or the
Company, if, on or prior to the Purchase Contract Settlement Date, a Termination
Event shall have occurred. Upon the occurrence of a Termination Event, the
Company shall promptly but in no event later than two Business Days thereafter
give written notice to the Purchase Contract Agent, the Collateral Agent and the
Holders, at their addresses as they appear in the Treasury Unit Register. Upon
the occurrence of a Termination Event, the Collateral Agent shall release the
Treasury Securities from the Pledge in accordance with the provisions of the
Pledge Agreement. A Treasury Unit shall thereafter represent the right to
receive the interest in the Treasury Security forming a part of such Treasury
Unit, in accordance with the terms of the Purchase Contract Agreement and the
Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities may be settled early ("Early Settlement") as provided in
the Purchase Contract Agreement. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts evidenced by this Treasury
Unit the Holder of this Treasury Unit Certificate shall deliver this Treasury
Unit Certificate to the Purchase Contract Agent at the Corporate Trust Office
duly endorsed for transfer to the Company or in blank with the form of Election
to Settle Early set forth below duly completed and accompanied by payment in the
form of immediately available funds payable to the order of the Company in an
amount (the "Early Settlement Amount") equal to:
(1) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement, plus
(2) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date for any
Payment Date to the opening of business on such Payment Date, an amount
equal to the Contract Adjustment Payments payable on such Payment Date with
respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Pledged Treasury Securities underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a Treasury Unit as to which Early
Settlement is effected equal to 0.6148 shares of Common Stock per Purchase
Contract (the "Early Settlement Rate"). The Early Settlement Rate shall be
adjusted in the same manner and at the same time as the Settlement Rate is
adjusted as provided in the Purchase Contract Agreement.
Upon registration of transfer of this Treasury Unit Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Purchase Contract Agent
pursuant to the Purchase Contract Agreement), under the terms of the Purchase
Contract Agreement and the Purchase Contracts evidenced hereby and the
B-8
transferor shall be released from the obligations under the Purchase Contracts
evidenced by this Treasury Unit Certificate. The Company covenants and agrees,
and the Holder, by its acceptance hereof, likewise covenants and agrees, to be
bound by the provisions of this paragraph.
The Holder of this Treasury Unit Certificate, by its acceptance hereof,
authorizes the Purchase Contract Agent to enter into and perform the related
Purchase Contracts forming part of the Treasury Units evidenced hereby on its
behalf as its attorney-in-fact, expressly withholds any consent to the
assumption (i.e., affirmance) of the Purchase Contracts by the Company or its
trustee in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform its obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, authorizes the
Purchase Contract Agent to enter into and perform the Purchase Contract
Agreement and the Pledge Agreement on its behalf as its attorney-in-fact, and
consents to the Pledge of the Treasury Securities underlying this Treasury Unit
Certificate pursuant to the Pledge Agreement. The Holder further covenants and
agrees, that, to the extent and in the manner provided in the Purchase Contract
Agreement and the Pledge Agreement, but subject to the terms thereof, payments
in respect of the aggregate principal amount of the Pledged Treasury Securities
at maturity shall be paid on the Purchase Contract Settlement Date by the
Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Purchase Contract Agent and its Affiliates and any
agent of the Company or the Purchase Contract Agent may treat the Person in
whose name this Treasury Unit Certificate is registered as the owner of the
Treasury Units evidenced hereby for the purpose of receiving payments of
Contract Adjustment Payments, performance of the Purchase Contracts and for all
other purposes whatsoever, whether or not any payments in respect thereof be
overdue and notwithstanding any notice to the contrary, and neither the Company,
the Purchase Contract Agent nor any such agent shall be affected by notice to
the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
Upon settlement of the Purchase Contracts, the Holder will be entitled to all of
the rights of a holder of shares of Common Stock, including, without limitation,
the right to vote and receive dividends and other payments and to consent and
receive notice as a shareholder in respect of the meetings of shareholders and
for the election of directors of the Company and for all other matters, and all
other rights whatsoever as a shareholder of the Company.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Purchase Contract Agent.
B-9
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ---------------Custodian---------------
(cust) (minor)
Under Uniform Gifts to Minors Act of _______
_____________________________________
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
_____________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Treasury Unit Certificates and all rights thereunder, hereby
irrevocably constituting and appointing _______________________________________
attorney to transfer said Treasury Unit Certificates on the books of Dominion
Resources, Inc. with full power of substitution in the premises.
Dated: ___________________ ______________________________________________
Signature
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Treasury Unit Certificates in
every particular, without alteration or
enlargement or any change whatsoever.
B-10
Signature Guarantee: ___________________________________
B-11
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Treasury Units evidenced
by this Treasury Unit Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: _______________________ _________________________________
Signature
Signature Guarantee:_____________
(if assigned to another person)
If shares are to be registered in the name of REGISTERED HOLDER
and delivered to a Person other than the
Holder, please (i) print such Person's name
and address and (ii) provide a guarantee of
your signature:
Please print name and address of
Registered Holder:
_____________________________________ _________________________________
Name Name
_____________________________________ _________________________________
Address Address
_____________________________________ _________________________________
_____________________________________ _________________________________
_____________________________________ _________________________________
Social Security or other
Taxpayer Identification _________________________________
Number, if any
B-12
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury Unit Certificate irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Treasury Units evidenced by this Treasury Unit
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Treasury 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
Treasury Unit Certificate representing any Treasury Unit evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Treasury Securities deliverable upon such
Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: ___________________________ ________________________________
Signature
Signature Guarantee: ______________________________
B-13
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock or Treasury Unit REGISTERED HOLDER
Certificates REGISTERED HOLDER are to
be registered in the name of and delivered
to, and Pledged Treasury Securities
are to be transferred to, a Person other
than the Holder, please print such
Person's name and address:
Please print name and address of
Registered Holder:
_____________________________________ ____________________________________
Name Name
_____________________________________ ____________________________________
Address Address
_____________________________________ ____________________________________
_____________________________________ ____________________________________
_____________________________________ ____________________________________
Social Security or other
Taxpayer Identification ___________________________________
Number, if any
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement or a Termination Event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
B-14
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
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Number of Treasury
Amount of decrease in Amount of increase in Units evidenced by this Signature of authorized
Number of Treasury Number of Treasury Global Certificate officer of Purchase
Units evidenced by the Units evidenced by the Following such Contract Agent or
Date Global Certificate Global Certificate decrease or increase Securities Custodian
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B-15
EXHIBIT C
NOTICE FROM HOLDER TO PURCHASE CONTRACT AGENT
(Election for Creation of Treasury Units or Recreation of Corporate Units)
JPMorgan Chase Bank, as Purchase Contract Agent
000 Xxxx 00xx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
Re: [Corporate Units] [Treasury Units] of Dominion
Resources, Inc. Upper DECS Equity Income Securities
---------------------------------------------------
Reference is made to the Purchase Contract Agreement, dated as of
March 20, 2002 (the "Purchase Contract Agreement"), between Dominion Resources,
Inc. (the "Company") and you, as Purchase Contract Agent and as Attorney-in-Fact
for the Holders of the Purchase Contracts. All capitalized terms that are used
but not defined herein have the meanings assigned to them in the Purchase
Contract Agreement.
The undersigned Holder hereby notifies you in accordance with Section
[3.13] [3.14] of the Purchase Contract Agreement, that such Holder has elected
to [create][recreate] ________ [Treasury Units] [Corporate Units] by
substitution of $__________ aggregate principal amount of [Treasury Securities]
[Senior Notes] for the [Pledged Senior Notes] [Pledged Treasury Securities] held
in the Collateral Account, in accordance with the Pledge Agreement.
The undersigned Holder hereby acknowledges that such Holder may
[create Treasury Units] [recreate Corporate Units] only in integral multiples of
20 [Corporate Units] [Treasury Units].
____________________________________
Name of Holder
____________________________________
Signature
Signature Guarantee:________________
Date: _______________________
Please print name and address of Registered Holder:
__________________________________________________________________
Name
__________________________________________________________________
Social Security or other Taxpayer Identification Number, if any
___________________________________________________________
___________________________________________________________
Address
C-2
EXHIBIT D
INSTRUCTION TO PURCHASE CONTRACT AGENT
JPMORGAN CHASE BANK, as Purchase Contract Agent
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
Re: _______ [Corporate Units] [Treasury Units] of Dominion Resources,
Inc. (the "Company") Upper DECS Equity Income Securities
The undersigned Holder hereby notifies you that it has Transferred to
Bank One Trust Company, N.A., as Securities Intermediary, for credit to the
Collateral Account, $______ aggregate principal amount of [Senior Notes]
[Treasury Securities] in exchange for the [Pledged Senior Notes] [Pledged
Treasury Securities] held in the Collateral Account, in accordance with the
Pledge Agreement, dated as of March 20, 2002 (the "Pledge Agreement"; unless
otherwise defined herein, terms defined in the Pledge Agreement are used herein
as defined therein), between you, the Company, the Collateral Agent and the
Securities Intermediary. The undersigned Holder has paid all applicable fees
relating to such exchange. The undersigned Holder hereby instructs you to
instruct the Collateral Agent to release to you on behalf of the undersigned
Holder the [Pledged Senior Notes] [Pledged Treasury Securities] related to the
above-captioned [Corporate Units] [Treasury Units].
Date: _______________________ ______________________________________
Signature
Signature Guarantee:__________________
Please print name and address of Registered Holder:
____________________________________ ______________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
____________________________________
____________________________________
____________________________________
EXHIBIT E
NOTICE FROM PURCHASE CONTRACT AGENT
TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
_______________________
_______________________
Attention:
Telecopy: __________
Re: _______ [Corporate Units] [Treasury Units] of Dominion Resources,
Inc. (the "Company") Upper DECS Equity Income Securities
Please refer to the Purchase Contract Agreement, dated as of March 20,
2002 (the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
among the Company and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of Corporate Units and Treasury Units from time
to time.
We hereby notify you that a Termination Event has occurred and that
[the Senior Notes][the Treasury Securities][the Treasury Portfolio Interest]
underlying your ownership interest in _____ [Corporate Units][Treasury Units]
have been released and are being held by us for your account pending receipt of
transfer instructions with respect to such [Senior Notes][Treasury
Securities][Treasury Portfolio Interest] (the "Released Securities").
Pursuant to Section 3.15 of the Purchase Contract Agreement, we hereby
request written transfer instructions with respect to the Released Securities.
Upon receipt of your instructions and upon transfer to us of your [Corporate
Units][Treasury Units] effected through book-entry transfer or by delivery to us
of your [Corporate Unit Certificate][Treasury Unit Certificate], we shall
transfer the Released Securities by book-entry transfer, or other appropriate
procedures, in accordance with your instructions. In the event you fail to
effect such transfer or delivery, the Released Securities and any interest
thereon, shall be held in our name or in the name of our nominee in trust for
your benefit, until the earlier of such time as (A) such [Corporate
Units][Treasury Units] are transferred or your [Corporate Unit
Certificate][Treasury Unit Certificate] is surrendered or satisfactory evidence
is provided that your [Corporate Unit Certificate][Treasury Unit Certificate]
has been destroyed, lost or stolen, together with any indemnification that we or
the Company may require and (B) the expiration of the time period specified in
the abandoned property laws of the relevant state.
Date: ______________ By: JPMORGAN CHASE BANK,
as Purchase Contract Agent
_______________________________
Name:
Title:
EXHIBIT F
NOTICE TO SETTLE BY CASH
JPMORGAN CHASE BANK, as Purchase Contract Agent
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
Re: _______ [Corporate Units] [Treasury Units] of Dominion Resources,
Inc. (the "Company") Upper DECS Equity Income Securities
The undersigned Holder hereby irrevocably notifies you in accordance
with Section 5.9 of the Purchase Contract Agreement, dated as of March 20, 2002
(the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and you, as Purchase Contract Agent and as Attorney-in-Fact
for the Holders of the Purchase Contracts, that such Holder has elected to pay
to the Securities Intermediary for deposit in the Collateral Account, prior to
11:00 a.m. (New York City time) on the [fifth Business Day][Business Day]
immediately preceding the Purchase Contract Settlement Date (in lawful money of
the United States by certified or cashiers' check or wire transfer, in
immediately available funds), $______ as the Purchase Price for the shares of
Common Stock issuable to such Holder by the Company under the related Purchase
Contract on the Purchase Contract Settlement Date. The undersigned Holder hereby
instructs you to notify promptly the Collateral Agent of the undersigned
Holder's election to make such cash settlement with respect to the Purchase
Contracts related to such Holder's [Corporate Units] [Treasury Units] and to
release the related [Senior Notes] [Treasury Securities] to such Holder upon
such Cash Settlement.
Date: _______________________ _______________________________________
Signature
Signature Guarantee:___________________
Please print name and address of Registered Holder:
____________________________________ ____________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
____________________________________
____________________________________
____________________________________
F-2
EXHIBIT G
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT AND INDENTURE TRUSTEE
(Settlement of Purchase Contract through Remarketing)
Bank One Trust Company, N.A.
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
JPMORGAN CHASE BANK, as Indenture Trustee
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
Telecopy: : (000) 000-0000/8160
Re: Corporate Units of Dominion Resources, Inc. (the "Company") Upper
DECS Equity Income Securities
Please refer to the Purchase Contract Agreement, dated as of March 20,
2002 (the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of Upper DECS Equity Income Securities from
time to time.
In accordance with Section 5.4[(b)][(d)] of the Purchase Contract
Agreement [and based on Early Settlements and Collateral Substitutions occurring
on or prior to 5:00 p.m. (New York City time) on the Election Date][and based on
instructions received from Holders of Corporate Units prior to 5:00 p.m. (New
York City time) on the sixth Business Day immediately preceding the Purchase
Contract Settlement Date and notice from the Securities Intermediary regarding
Cash Settlements received prior to 11:00 a.m. (New York City time) on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date], we
hereby notify you that $_____ in aggregate principal amount of Pledged Senior
Notes is to be tendered for purchase in the Remarketing.
Date: ______________ By: JPMORGAN CHASE BANK, as Purchase
Contract Agent
____________________________________
Name:
Title:
EXHIBIT H
NOTICE FROM HOLDER TO INDENTURE TRUSTEE
(Election to Tender for Purchase Senior Notes in the Remarketing)
JPMorgan Chase Bank, as Indenture Trustee
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
Telecopy: : (000) 000-0000/8160
Re: $__________ in aggregate principal amount of 2002 Series A
5.75% Senior Notes due May 15, 2008 of Dominion Resources,
Inc., a Virginia corporation (the "Company")
The undersigned Holder hereby irrevocably notifies you in accordance
with [Section 5.4(c)(i)] of the Purchase Contract Agreement, dated as of March
20, 2002 (the "Purchase Contract Agreement"; unless otherwise defined herein,
terms defined in the Purchase Contract Agreement are used herein as defined
therein), between the Company and JPMorgan Chase Bank, as Purchase Contract
Agent, that it is a Holder of [____ Treasury Units that continues to hold the
Senior Notes that were originally part of the ____ Corporate Units before they
were converted into Treasury Units] [____ Corporate Units that effected Early
Settlement but continues to hold the Senior Notes originally part of the ____
Corporate Units] [____ Treasury Units that effected Early Settlement but
continues to hold the Senior Notes originally part of the ____ Corporate Units
that were converted into the ____ Treasury Units] and it is electing to tender
for purchase in the Remarketing $_____ in aggregate principal amount of Senior
Notes.
Date: _______________________ ____________________________________
Signature
Signature
Guarantee:__________________________
CC: Bank One Trust Company, N.A.
Please print name and address of Registered Holder:
____________________________________ ____________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
____________________________________
____________________________________
____________________________________
