EXHIBIT 4.13
UNION PLANTERS CORPORATION
AND
[________],
AS PURCHASE CONTRACT AGENT
PURCHASE CONTRACT AGREEMENT
DATED AS OF [______], 200[_]
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........................ 1
SECTION 1.1 Definitions.................................................................. 1
SECTION 1.2 Compliance Certificates and Opinions......................................... 11
SECTION 1.3 Form of Documents Delivered to Agent......................................... 11
SECTION 1.4 Acts of Holders; Record Dates................................................ 12
SECTION 1.5 Notices...................................................................... 13
SECTION 1.6 Notice to Holders; Waiver.................................................... 13
SECTION 1.7 Effect of Headings and Table of Contents..................................... 14
SECTION 1.8 Successors and Assigns....................................................... 14
SECTION 1.9 Separability Clause.......................................................... 14
SECTION 1.10 Benefits of Agreement....................................................... 14
SECTION 1.11 Governing Law............................................................... 14
SECTION 1.12 Legal Holidays.............................................................. 14
SECTION 1.13 Counterparts................................................................ 15
SECTION 1.14 Inspection of Agreement..................................................... 15
SECTION 1.15 Appointment of Financial Institution as Agent for the Company............... 15
SECTION 1.16 No Waiver................................................................... 15
ARTICLE II CERTIFICATE FORMS............................................................. 15
SECTION 2.1 Forms of Certificates Generally.............................................. 15
SECTION 2.2 Form of Agent's Certificate of Authentication................................ 16
ARTICLE III THE UNITS.................................................................... 16
SECTION 3.1 Number of Units; Denominations............................................... 16
SECTION 3.2 Rights and Obligations Evidenced by the Certificates......................... 17
SECTION 3.3 Execution, Authentication, Delivery and Dating............................... 17
SECTION 3.4 Temporary Certificates....................................................... 18
SECTION 3.5 Registration; Registration of Transfer and Exchange.......................... 18
SECTION 3.6 Book-Entry Interests......................................................... 20
SECTION 3.7 Notices to Holders........................................................... 20
SECTION 3.8 Appointment of Successor Clearing Agency..................................... 20
SECTION 3.9 Definitive Certificates...................................................... 20
SECTION 3.10 Mutilated, Destroyed, Lost and Stolen Certificates.......................... 21
SECTION 3.11 Persons Deemed Owners....................................................... 22
SECTION 3.12 Cancellation................................................................ 22
SECTION 3.13 Establishment of Stripped Units............................................. 22
SECTION 3.14 Reestablishment of Normal Units............................................. 23
SECTION 3.15 Transfer of Collateral upon Occurrence of Termination Event................. 24
SECTION 3.16 No Consent to Assumption.................................................... 25
SECTION 3.17 CUSIP Numbers............................................................... 25
ARTICLE IV THE NOTES..................................................................... 25
SECTION 4.1 Payment of Interest; Rights to Interest Payments Preserved; Notice........... 25
SECTION 4.2 Notice and Voting............................................................ 26
SECTION 4.3 Special Event Redemption..................................................... 26
SECTION 4.4 Consent to Treatment for Tax Purposes........................................ 26
ARTICLE V THE PURCHASE CONTRACTS; THE REMARKETING........................................ 27
SECTION 5.1 Purchase of Common Stock..................................................... 27
SECTION 5.2 Contract Adjustment Payments................................................. 28
SECTION 5.3 Deferral of Contract Adjustment Payments..................................... 32
SECTION 5.4 Payment of Purchase Price; Remarketing....................................... 33
SECTION 5.5 Issuance of Shares of Common Stock........................................... 36
SECTION 5.6 Adjustment of Settlement Rate................................................ 37
SECTION 5.7 Notice of Adjustments and Certain Other Events............................... 41
SECTION 5.8 Termination Event; Notice.................................................... 42
SECTION 5.9 Early Settlement............................................................. 42
SECTION 5.10 Early Settlement Upon Cash Merger........................................... 43
SECTION 5.11 Charges and Taxes........................................................... 45
SECTION 5.12 No Fractional Shares........................................................ 45
ARTICLE VI REMEDIES...................................................................... 45
SECTION 6.1 Unconditional Right of Holders to Receive Purchase Contract Adjustment
Payments and Purchase Common Stock........................................ 45
SECTION 6.2 Restoration of Rights and Remedies........................................... 46
SECTION 6.3 Rights and Remedies Cumulative............................................... 46
SECTION 6.4 Delay or Omission Not Waiver................................................. 46
SECTION 6.5 Undertaking for Costs........................................................ 46
SECTION 6.6 Waiver of Stay or Extension Laws............................................. 46
ARTICLE VII THE AGENT.................................................................... 47
SECTION 7.1 Certain Duties and Responsibilities.......................................... 47
SECTION 7.2 Notice of Default............................................................ 47
SECTION 7.3 Certain Rights of Agent...................................................... 47
SECTION 7.4 Not Responsible for Recitals or Issuance of Units............................ 48
SECTION 7.5 May Hold Units............................................................... 49
SECTION 7.6 Money Held in Custody........................................................ 49
SECTION 7.7 Compensation and Reimbursement............................................... 49
SECTION 7.8 Corporate Agent Required; Eligibility........................................ 49
SECTION 7.9 Resignation and Removal; Appointment of Successor............................ 50
SECTION 7.10 Acceptance of Appointment by Successor...................................... 51
SECTION 7.11 Merger, Conversion, Consolidation or Succession to Business................. 51
SECTION 7.12 Preservation of Information................................................. 51
SECTION 7.13 No Obligations of Agent..................................................... 51
SECTION 7.14 Tax Compliance.............................................................. 51
ARTICLE VIII SUPPLEMENTAL AGREEMENTS..................................................... 52
SECTION 8.1 Supplemental Agreements Without Consent of Holders........................... 52
SECTION 8.2 Supplemental Agreements with Consent of Holders.............................. 52
SECTION 8.3 Execution of Supplemental Agreements......................................... 53
SECTION 8.4 Effect of Supplemental Agreements............................................ 53
SECTION 8.5 Reference to Supplemental Agreements......................................... 53
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE..................................... 54
SECTION 9.1 Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under
Certain Conditions........................................................ 54
SECTION 9.2 Rights and Duties of Successor Corporation................................... 54
SECTION 9.3 Opinion of Counsel Given to Agent............................................ 54
ARTICLE X COVENANTS...................................................................... 55
SECTION 10.1 Performance Under Purchase Contracts........................................ 55
SECTION 10.2 Maintenance of Office or Agency............................................. 55
SECTION 10.3 Company to Reserve Common Stock............................................. 55
SECTION 10.4 Covenants as to Common Stock................................................ 55
SECTION 10.5 Statements of Officer of the Company as to Default.......................... 55
EXHIBITS
EXHIBIT A Form of Normal Units Certificate
EXHIBIT B Form of Stripped Units Certificate
EXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
EXHIBIT D Instruction to Purchase Contract Agent
EXHIBIT E Notice to Settle by Separate Cash
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PURCHASE CONTRACT AGREEMENT, dated as of [______], 200[_],
between Union Planters Corporation, a Tennessee corporation (the "Company"), and
[________], a [______] [banking corporation], acting as purchase contract agent
and attorney-in-fact for the Holders of Units from time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of
this Agreement and the Certificates evidencing the Units.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company and authenticated, executed on behalf
of the Holders and delivered by the Agent, as provided in this Agreement, the
valid obligations of the Company, and to constitute this Agreement a valid
agreement of the Company, in accordance with its terms, have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of
the Units by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular, and nouns and pronouns of the masculine gender include the
feminine and neuter genders;
(b) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole and
not to any particular Article, Section or other subdivision; and
(d) the following terms have the meanings given to them
in this Section 1.1(d):
"Accounting Event" means the receipt at any time prior to the
earlier of the date of any successful remarketing of the Notes pursuant
to the provisions of Section 5.4 and the Stock Purchase Date by the
audit committee of the Board of Directors of a written report in
accordance with Statement on Auditing Standards ("SAS") No. 97,
"Amendment to SAS No. 50 - Reports on the Application of Accounting
Principles," from the Company's independent auditors, provided at the
request of the management of the Company, to the effect that, as a
result of a change in accounting rules applicable to the Company after
[______], 200[_], the Company must either (a) account for the Purchase
Contracts as derivatives under SFAS 133 (or any successor accounting
standard) or (b) account for the Units using the if-converted method
under SFAS 128 (or any successor accounting standard), and that such
accounting treatment will cease to apply upon redemption of the Notes.
"Act" when used with respect to any Holder, has the meaning
specified in Section 1.4(a).
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Agent" means the Person named as the "Agent" in the first
paragraph of this Agreement until a successor Agent shall have become
such pursuant to the applicable provisions of this Agreement, and
thereafter "Agent" shall mean such Person.
"Agent-purchased Treasury Consideration" has the meaning
specified in Section 5.4(b)(i).
"Agreement" means this agreement as originally executed or as
it may from time to time be supplemented or amended by one or more
agreements supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Applicable Market Value" has the meaning specified in Section
5.1(c).
"Bankruptcy Code" means Title 11 of the United States Code, or
any other law of the United States that from time to time provides a
uniform system of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry
Interest, a Person who is the beneficial owner of such Book-Entry
Interest as reflected on the books of the Clearing Agency or on the
books of a Person maintaining an account with such Clearing Agency
(directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing
Agency).
"Board of Directors" means either the Board of Directors of
the Company or the executive committee of such Board of Directors or
any other committee of such Board of Directors duly authorized to act
generally or in any particular respect for the Board of Directors
hereunder.
"Board Resolution" means (i) a copy of a resolution certified
by the Secretary or the 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, (ii) a copy of a unanimous
written consent of the Board of Directors or (iii) a certificate signed
by the authorized officer or officers to whom the Board of Directors
has delegated its authority and, in each case, delivered to the Agent.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and
made through book entries by a Clearing Agency as described in Section
3.6.
"Business Day" means any day that is not a Saturday, Sunday or
day on which banking institutions and trust companies in The City of
New York or at a place of payment are authorized or required by law,
regulation or executive order to close.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interests in (however designated, whether voting or non-voting)
corporate stock or similar interests in other types of entities.
"Cash Merger" has the meaning set forth in Section 5.10(a).
"Cash Merger Date" means the date on which a Cash Merger is
consummated.
"Cash Settlement" has the meaning set forth in Section 5.4(a).
"Certificate" means a Normal Units Certificate or a Stripped
Units Certificate.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act that is
acting as a depositary for the Units and in whose name, or in the name
of a
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nominee of that organization, shall be registered a Global Certificate
and which shall undertake to effect book-entry transfers and pledges of
the Units.
"Clearing Agency Participant" means a broker, dealer, bank,
trust company, clearing corporation, other financial institution or
other Person for whom from time to time the Clearing Agency effects
book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Price" has the meaning specified in Section 5.1(c).
"Collateral" has the meaning specified in Section 2.1(a) of
the Pledge Agreement.
"Collateral Agent" means [________], a [_______] [trust
company], as Collateral Agent under the Pledge Agreement until a
successor Collateral Agent shall have become such pursuant to the
applicable provisions of the Pledge Agreement, and thereafter
"Collateral Agent" shall mean the Person who is then the Collateral
Agent thereunder.
"Collateral Substitution" has the meaning specified in Section
3.13(a).
"Common Stock" means the Common Stock, par value $5.00 per
share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this Agreement until a successor shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter
"Company" shall mean such successor.
"Constituent Person" has the meaning specified in Section
5.6(b).
"Contract Adjustment Payments" means, in the case of Normal
Units and Stripped Units, the amount payable by the Company in respect
of each Purchase Contract constituting a part of such Unit, which
amount shall be equal to [___]% per year of the Stated Amount, in each
case computed (i) for any full quarterly period, on the basis of a
360-day year of twelve 30-day months and (ii) for any period shorter
than a full quarterly period, on the basis of a 30-day month, and for
periods of less than a month, on the basis of the actual number of days
elapsed per 30-day month, plus any Deferred Contract Adjustment
Payments accrued pursuant to Section 5.3.
"Corporate Trust Office" means the corporate trust office of
the Agent at which, at any particular time, its corporate trust
business shall be principally administered, which office at the date
hereof is located at [________], Attention: [_____________].
"Coupon Rate" means the percentage rate per annum at which
each Note will bear interest initially.
"Current Market Price" has the meaning specified in Section
5.6(a)(8).
"Custodial Agent" means [________], a [_______] [trust
company], as Custodial Agent under the Pledge Agreement until a
successor Custodial Agent shall have become such pursuant to the
applicable provisions of the Pledge Agreement, and thereafter
"Custodial Agent" shall mean the Person who is then the Custodial Agent
thereunder.
"Default" means a default by the Company in any of its
obligations under this Agreement.
"Deferred Contract Adjustment Payments" has the meaning
specified in Section 5.3(a).
"Depositary" means, initially, DTC, until another Clearing
Agency becomes its successor.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
3
"Early Settlement" has the meaning specified in Section
5.9(a).
"Early Settlement Amount" has the meaning specified in Section
5.9(a).
"Early Settlement Date" has the meaning specified in Section
5.9(a).
"Early Settlement Rate" has the meaning specified in Section
5.9(b).
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to
time, and the rules and regulations promulgated thereunder.
"Expiration Date" has the meaning specified in Section 1.4(f).
"Expiration Time" has the meaning specified in Section
5.6(a)(6).
"Failed Remarketing" has the meaning specified in Section
5.4(b)(ii).
"Fair Market Value," with respect to securities distributed in
a Spin-Off, means (a) in the case of any Spin-Off that is effected
simultaneously with an Initial Public Offering of such securities, the
initial public offering price of those securities and (b) in the case
of any other Spin-Off, the average of the Sale Price of those
securities over the first ten Trading Days after the effective date of
such Spin-Off.
"Global Certificate" means a Certificate that evidences all or
part of the Units and is registered in the name of a Depositary or a
nominee thereof.
"Holder" means the Person in whose name the Unit evidenced by
a Normal Units Certificate and/or a Stripped Units Certificate is
registered in the related Normal Units Register and/or the Stripped
Units Register, as the case may be.
"Indenture" means the Indenture, dated as of [_______],
200[_], between the Company and the Trustee pursuant to which the Notes
are to be issued, as originally executed and delivered and as it may
from time to time be supplemented or amended by one or more indentures
supplemental thereto entered into pursuant to the applicable provisions
thereof and shall include the terms of a particular series established
as contemplated thereof.
"Initial Public Offering," with respect to a Spin-Off, means
the first time securities of the same class or type as the securities
being distributed in such Spin-Off are bona fide offered to the public
for cash.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Company by the Chief Executive
Officer, President, Chief Financial Officer, Treasurer, any Senior
Executive Vice President, any Executive Vice President, Senior Vice
President of Accounting, the Secretary or any Assistant Secretary (or
other officer performing similar functions) of the Company and
delivered to the Agent.
"Last Failed Remarketing" has the meaning specified in Section
5.4(b)(ii).
"Merger Early Settlement" has the meaning specified in Section
5.10(a).
"Merger Early Settlement Amount" has the meaning specified in
Section 5.10(b).
"Merger Early Settlement Date" has the meaning specified in
Section 5.10(a)(i).
"Non-electing Share" has the meaning specified in Section
5.6(b).
4
"Normal Unit" means the collective rights and obligations of a
Holder of a Normal Units Certificate in respect of a 1/[__] undivided
beneficial interest in a Note in the original principal amount of
$[____] or the appropriate Treasury Consideration, as the case may be,
subject in each case to the Pledge thereof, and the related Purchase
Contract.
"Normal Units Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Normal
Units specified on such certificate, substantially in the form of
Exhibit A hereto.
"Normal Units Register" and "Normal Units Registrar" have the
respective meanings specified in Section 3.5(a).
"Notes" means the [__]% Senior Notes due 200[_] of the Company
issued under the Indenture.
"NYSE" has the meaning specified in Section 5.1(c).
"Officers' Certificate" means a certificate signed by the
Chief Executive Officer, President, Chief Financial Officer, any Senior
Executive Vice President, any Executive Vice President or the Senior
Vice President of Accounting, and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary (or other officer
performing similar functions) of the Company and delivered to the
Agent.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company or
an Affiliate of the Company and who shall be reasonably acceptable to
the Agent.
"Opt-out Treasury Consideration" has the meaning specified in
Section 5.4(b)(iv).
"Outstanding Units" means, as of the date of determination,
all Normal Units or Stripped Units evidenced by Certificates
theretofore authenticated, executed and delivered under this Agreement,
except:
(i) If a Termination Event has occurred, (A)
Stripped Units and (B) Normal Units for which the related
Notes or the appropriate Treasury Consideration, as the case
may be, has been theretofore deposited with the Agent in trust
for the Holders of such Normal Units;
(ii) Normal Units and Stripped Units evidenced by
Certificates theretofore cancelled by the Agent or delivered
to the Agent for cancellation or deemed cancelled pursuant to
the provisions of this Agreement; and
(iii) Normal Units and Stripped Units evidenced by
Certificates in exchange for or in lieu of which other
Certificates have been authenticated, executed on behalf of
the Holder and delivered pursuant to this Agreement, other
than any such Certificate in respect of which there shall have
been presented to the Agent proof satisfactory to it that such
Certificate is held by a protected purchaser in whose hands
the Normal Units or Stripped Units evidenced by such
Certificate are valid obligations of the Company;
provided that, in determining whether the Holders of the requisite
number of the Normal Units or Stripped Units have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Normal Units or Stripped Units owned by the Company or any Affiliate of
the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Agent shall be protected in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Normal Units or Stripped Units which a
Responsible Officer of the Agent knows to be so owned shall be so
disregarded. Normal Units or Stripped Units so owned which have been
pledged in good faith may be regarded as Outstanding Units if the
pledgee establishes to the satisfaction of the Agent the pledgee's
right so to act with respect to such Normal Units or Stripped Units and
that the pledgee is not the Company or any Affiliate of the Company.
5
"Payment Date" means each [_______],[_______],[_______]and
[_______], commencing [_______], 200[_] and ending on [_______],
200[_].
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Pledge" means the pledge under the Pledge Agreement of the
Notes, the Treasury Securities or the appropriate Treasury
Consideration, in each case constituting a part of the Units, property,
cash, securities, financial assets and security entitlements of the
Collateral Account (as defined in the Pledge Agreement) and any
proceeds of any of the foregoing.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, by and among the Company, the Collateral Agent, the
Custodial Agent, the Securities Intermediary and the Agent, on its own
behalf and as attorney-in-fact for the Holders from time to time of the
Units.
"Pledged Notes" has the meaning set forth in Section 2.1(c) of
the Pledge Agreement.
"Pledged Treasury Consideration" has the meaning set forth in
Section 2.1(c) of the Pledge Agreement.
"Pledged Treasury Securities" has the meaning set forth in
Section 2.1(c) of the Pledge Agreement.
"Predecessor Certificate" means a Predecessor Normal Units
Certificate or a Predecessor Stripped Units Certificate.
"Predecessor Normal Units Certificate" of any particular
Normal Units Certificate means every previous Normal Units Certificate
evidencing all or a portion of the rights and obligations of the
Company and the Holder under the Normal Units evidenced thereby; and,
for the purposes of this definition, any Normal Units Certificate
authenticated and delivered under Section 3.10 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Normal Units Certificate
shall be deemed to evidence the same rights and obligations of the
Company and the Holder as the mutilated, destroyed, lost or stolen
Normal Units Certificate.
"Predecessor Stripped Units Certificate" of any particular
Stripped Units Certificate means every previous Stripped Units
Certificate evidencing all or a portion of the rights and obligations
of the Company and the Holder under the Stripped Units evidenced
thereby; and, for the purposes of this definition, any Stripped Units
Certificate authenticated and delivered under Section 3.10 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Stripped Units
Certificate shall be deemed to evidence the same rights and obligations
of the Company and the Holder as the mutilated, destroyed, lost or
stolen Stripped Units Certificate.
"Purchase Contract," when used with respect to any Unit, means
the contract forming a part of such Unit and obligating the Company to
issue and sell and the Holder of such Unit to purchase shares of Common
Stock on the terms and subject to the conditions set forth in Article
V.
"Purchase Contract Settlement Fund" has the meaning specified
in Section 5.5.
"Purchase Price" has the meaning specified in Section 5.1(a).
"Purchased Shares" has the meaning specified in Section
5.6(a)(6).
"Quotation Agent" means [_________] or any of its successors
or any other primary U.S. government securities dealer in New York City
selected by the Company.
6
"Record Date" for the payment of a distribution payable on any
Payment Date means, as to any Global Certificate, the Business Day next
preceding such Payment Date, and in the event that other Certificates
are issued pursuant to this Agreement, the 15th calendar day preceding
such Payment Date.
"Redemption Price" means, for each Note, whether or not
included in a Normal Unit, the product of (i) the principal amount of
such Note and (ii) a fraction whose numerator is the applicable
Treasury Portfolio Purchase Price and whose denominator is the
applicable Special Event Redemption Principal Amount.
"Register" means the Normal Units Register and the Stripped
Units Register, as applicable.
"Registrar" means the Normal Units Registrar and the Stripped
Units Registrar, as applicable.
"Remarketing Agent" has the meaning specified in Section
5.4(b)(i).
"Remarketing Agreement" means the Remarketing Agreement to be
entered into by and among the Company, the Remarketing Agent and the
Agent.
"Remarketing Date" means the third Business Day preceding
[_______], 200[_].
"Remarketing Fee" has the meaning specified in Section
5.4(b)(i).
"Remarketing Period" means each of (i) the three Business Day
period beginning on the Remarketing Date and ending after the two
immediately following Business Days; (ii) the three Business Day period
immediately preceding [_____], 200[_]; and (iii) the third Business Day
immediately preceding the Stock Purchase Date.
"Remarketing Rate" means the percentage rate per year at which
each Note will bear interest on and following the Reset Date.
"Remarketing Value" means, with respect to any Note, the sum
of
(i) the value at the Remarketing Date or any
Subsequent Remarketing Date, as the case may be, of U.S.
Treasury securities that will pay, on or prior to the Stock
Purchase Date, an amount of cash equal to the interest payment
scheduled to be payable on that date on such Note, assuming
for that purpose, even if not true, that the interest rate on
such Note is equal to the Coupon Rate, and
(ii) the value at the Remarketing Date or any
Subsequent Remarketing Date, as the case may be, of U.S.
Treasury securities that will pay, on or prior to the Stock
Purchase Date, an amount of cash equal to the Stated Amount of
such Note;
provided that, for purposes of clauses (i) and (ii) above, the
Remarketing Value shall be calculated on the assumptions that (x) the
U.S. Treasury securities are highly liquid and mature on or within 35
days prior to the Stock Purchase Date, as determined in good faith by
the Remarketing Agent in a manner intended to minimize the cash value
of the U.S. Treasury securities, and (y) the U.S. Treasury securities
are valued based on the ask-side price of such U.S. Treasury securities
at a time between 9:00 a.m. and 11:00 a.m., New York City time,
selected by the Remarketing Agent, on the Remarketing Date or any
Subsequent Remarketing Date, as the case may be, as determined on a
third-day settlement basis by a reasonable and customary means selected
in good faith by the Remarketing Agent, plus accrued interest to that
date.
"Reorganization Event" has the meaning specified in Section
5.6(b).
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"Reset Date" means the date following the Remarketing Date or
a Subsequent Remarketing Date, as applicable, on which the trades in a
successful remarketing of the Notes, pursuant to the provisions of
Section 5.4, settle.
"Responsible Officer" means, when used with respect to the
Agent, any officer within the corporate trust department of the Agent
(or any successor of the Agent), including any Vice-President, any
assistant Vice-President, any assistant secretary, the treasurer, any
assistant treasurer, any trust officer, any senior trust officer or any
other officer of the Agent who customarily performs functions similar
to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who, in each of the above cases, shall have
direct responsibility for the administration of this Agreement.
"Sale Price" of any securities distributed in a Spin-Off on
any Trading Day means the closing sale price per share (or, if no
closing sale price is reported, the average of the bid and ask prices,
or, if more than one in either case, the average of the average bid and
average ask prices) on such Trading Day as reported in composite
transactions for the principal U.S. securities exchange on which such
securities are traded, or, if such securities are not listed on a U.S.
national or regional securities exchange, as reported by the Nasdaq
Stock Market, or, if such securities are not so reported, the last
quoted bid price for such securities in the over-the-counter market as
reported by the National Quotation Bureau or similar organization, or,
if such bid price is not available, the market value of such securities
on such date as determined by a nationally recognized independent
investment banking firm retained by the Company for this purpose.
"Securities Act" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to time,
and the rules and regulations promulgated thereunder.
"Securities Intermediary" means [________], a [_______] [trust
company], in its capacity as Securities Intermediary under the Pledge
Agreement, together with its successors in such capacity.
"Senior Indebtedness" means indebtedness of any kind of the
Company unless the instrument under which such indebtedness is incurred
expressly provides that it is in parity or subordinate in right of
payment to the Contract Adjustment Payments.
"Separate Notes" has the meaning set forth in the Pledge
Agreement.
"Settlement Date" means any Early Settlement Date or Merger
Early Settlement Date or the Stock Purchase Date.
"Settlement Rate" has the meaning specified in Section 5.1(a).
"Special Event" means either a Tax Event or an Accounting
Event.
"Special Event Redemption" means, if a Special Event shall
occur and be continuing, the redemption of the Notes, at the option of
the Company, in whole but not in part, on not less than 30 days' nor
more than 60 days' prior written notice.
"Special Event Redemption Date" means the date upon which a
Special Event Redemption is to occur.
"Special Event Redemption Principal Amount" means (i) in the
case of a Special Event Redemption Date occurring prior to a successful
remarketing of the Notes pursuant to the provisions of Section 5.4, the
aggregate principal amount of Notes included in Normal Units
outstanding on such date, and (ii) in the case of a Special Event
Redemption Date occurring after either a successful remarketing of the
Notes pursuant to the provisions of Section 5.4 or the Stock Purchase
Date, the aggregate principal amount of the Notes outstanding on such
date.
8
"Special Event Redemption Treasury Consideration" means, with
respect to a Normal Unit, (A) a 1/[__], or [__]%, undivided beneficial
ownership interest in a $[____] principal or interest amount of a
principal or interest strip in a U.S. Treasury security included in the
Treasury Portfolio which matures on or prior to the Stock Purchase Date
and (B) for each scheduled interest Payment Date on the Notes that
occurs after the Special Event Redemption Date and on or before the
Stock Purchase Date, a [__]% undivided beneficial ownership interest in
a $[____] principal or interest amount of a principal or interest strip
in a U.S. Treasury security included in the Treasury Portfolio that
matures on or prior to that interest Payment Date.
"Spin-Off" means a dividend or other distribution on the
Common Stock of shares of Capital Stock of any class or series, or
similar equity interests, of or relating to a subsidiary or other
business unit of the Company.
"Stated Amount" means, with respect to any one Normal Unit or
Stripped Unit, $[__], and, with respect to any one Note, $[____].
"Stock Purchase Date" means [______], 200[_].
"Stripped Unit" means the collective rights and obligations of
a Holder of a Stripped Units Certificate in respect of a 1/[__]
undivided beneficial interest in a Treasury Security, subject to the
Pledge thereof, and the related Purchase Contract.
"Stripped Units Certificate" means a certificate evidencing
the rights and obligations of a Holder in respect of the number of
Stripped Units specified on such certificate, substantially in the form
of Exhibit B hereto.
"Stripped Units Register" and "Stripped Units Registrar" have
the respective meanings specified in Section 3.5(a).
"Subsequent Remarketing" has the meaning specified in Section
5.4(b)(ii).
"Subsequent Remarketing Date" means any date during any
Remarketing Period on which the Remarketing Agent attempts a Subsequent
Remarketing in accordance with Section 5.4 hereof.
"Tax Event" means the receipt by the Company of an opinion of
a nationally recognized tax counsel experienced in such matters (which
may be Xxxxxx & Bird LLP) to the effect that there is more than an
insubstantial risk that interest payable by the Company on the Notes on
the next Payment Date will not be deductible, in whole or in part, by
the Company for United States federal income tax purposes, as a result
of (a) any amendment to, or change (including any announced proposed
change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or
therein affecting taxation, (b) any amendment to or change in an
official interpretation or application of such laws or regulations by
any legislative body, court, governmental agency or regulatory
authority or (c) any official interpretation, pronouncement or
application that provides for a position with respect to such laws or
regulations that differs from the generally accepted position on
[______], 200[_], which amendment, change or proposed change is
effective or which interpretation or pronouncement is announced on or
after [______], 200[_].
"Termination Date" means the date, if any, on which a
Termination Event occurs.
"Termination Event" means the occurrence of any of the
following events:
(i) at any time on or prior to the Stock
Purchase Date, a judgment, decree or court order shall have
been entered granting relief under the Bankruptcy Code or any
other similar foreign, 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,
9
decree or order shall have been entered within 60 days prior
to the Stock Purchase Date, such decree or order shall have
continued undischarged and unstayed for a period of 60 days;
(ii) at any time on or prior to the Stock
Purchase Date, a judgment, decree or court order for the
appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of the Company or of its property
substantially in its entirety, 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 Stock Purchase Date, such
judgment, decree or order shall have continued undischarged
and unstayed for a period of 60 days; or
(iii) at any time on or prior to the Stock
Purchase Date, the Company shall file a petition for relief
under the Bankruptcy Code or any other similar foreign,
federal or state law, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization or liquidation under
the Bankruptcy Code or any other similar foreign, 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 substantially in its entirety, or
shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts
generally as they become due.
"Threshold Appreciation Price" has the meaning specified in
Section 5.1(a)(i).
"TIA" means the Trust Indenture Act of 1939, and any statute
successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Trading Day" has the meaning specified in Section 5.1(c).
"Treasury Consideration" means the Agent-purchased Treasury
Consideration, the Opt-out Treasury Consideration or the Special Event
Redemption Treasury Consideration.
"Treasury Portfolio" means (i) if a Special Event Redemption
occurs prior to a successful remarketing of the Notes pursuant to the
provisions of Section 5.4, a portfolio of (A) zero-coupon U.S. Treasury
securities consisting of principal or interest strips of U.S. Treasury
securities that mature on or prior to the Stock Purchase Date in an
aggregate amount equal to the applicable Special Event Redemption
Principal Amount and (B) with respect to each scheduled interest
Payment Date on the Notes that occurs after the Special Event
Redemption Date and on or before the Stock Purchase Date, interest or
principal strips of U.S. Treasury securities that mature on or prior to
such interest Payment Date in an aggregate amount equal to the
aggregate interest payment that would be due on the applicable Special
Event Redemption Principal Amount on such date if the interest rate of
the Notes were not reset on the Reset Date, and (ii) solely for
purposes of determining the Treasury Portfolio Purchase Price in the
case of a Special Event Redemption Date occurring after either of a
successful remarketing of the Notes pursuant to the provisions of
Section 5.4, or the Stock Purchase Date, a portfolio of (A) zero-coupon
U.S. Treasury securities consisting of principal or interest strips of
U.S. Treasury securities that mature on or prior to [______], 200[_] in
an aggregate amount equal to the applicable Special Event Redemption
Principal Amount and (B) with respect to each scheduled interest
Payment Date on the Notes that occurs after the Special Event
Redemption Date and on or before [______], 200[_], interest or
principal strips of U.S. Treasury securities that mature on or prior to
such interest Payment Date in an aggregate amount equal to the
aggregate interest payment that would be due on the applicable Special
Event Redemption Principal Amount.
"Treasury Portfolio Purchase Price" means the lowest aggregate
price quoted by a primary U.S. government securities dealer in New York
City to the Quotation Agent on the third Business Day immediately
preceding the Special Event Redemption Date for the purchase of the
Treasury Portfolio for settlement on the Special Event Redemption Date.
10
"Treasury Security" means a zero-coupon U.S. Treasury security
(CUSIP Number _________) maturing on [______], 200[_] that will pay
$[____] on such maturity date.
"Trustee" means Bank One Trust Company, N.A., a national
banking association, successor in interest to The First National Bank
of Chicago, as trustee under the Indenture and any supplemental
indenture to the Indenture, or any successor thereto.
"Underwriting Agreement" means the Underwriting Agreement
relating to the Units dated [______], 200[_] between the Company and
the underwriters named therein.
"Unit" means a Normal Unit or a Stripped Unit.
"Vice-President" means any vice-president, whether or not
designated by a number or a word or words added before or after the
title "vice-president."
SECTION 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon
any application or request by the Company to the Agent to take any action under
any provision of this Agreement, the Company shall furnish to the Agent an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Agreement relating to the proposed action have been complied with
and, if requested by the Agent, an Opinion of Counsel stating that, in the
opinion of such counsel, such action is authorized or permitted by this
Agreement and that all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(a) a statement that the individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such individual,
he or she has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such
individual based on his or her knowledge, such condition or covenant
has been complied with.
SECTION 1.3 Form of Documents Delivered to Agent.
(a) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give
an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to the
matters upon which his certificate or opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
11
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 Agent and,
where it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Agreement and (subject to Section
7.1) conclusive in favor of the Agent and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved in any manner which the
Agent deems sufficient.
(c) The ownership of Units shall be proved by the Normal
Units Register or the Stripped Units Register, as the case may be.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Certificate
shall bind every future Holder of the same Certificate and the Holder
of every Certificate issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such
Certificate.
(e) The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Units entitled to
give, make or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this
Agreement to be given, made or taken by Holders of Units. If any record
date is set pursuant to this paragraph, the Holders of the Outstanding
Normal Units and the Outstanding Stripped 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 Normal Units or the Stripped Units,
as the case may be, whether or not such Holders remain Holders after
such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by
Holders of the requisite number of Outstanding Units on such record
date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite number of Outstanding Units on the
date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall
cause notice of such record date, the proposed action by Holders and
the applicable Expiration Date to be given to the Agent in writing and
to each Holder of Units in the manner set forth in Section 1.6.
(f) With respect to any record date set pursuant to this
Section, the Company may designate any date as the "Expiration Date"
and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the Agent in
writing, and to each Holder of Units in the manner set forth in Section
1.6, on
12
or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this
Section, the Company shall be deemed to have initially designated the
180th day after such record date as the Expiration Date with respect
thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
SECTION 1.5 Notices.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Agreement to be made upon, given or furnished to, or filed with:
(a) the Agent by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered, mailed, first-class postage prepaid, telecopied
or delivered by overnight air courier guaranteeing next day delivery,
addressed to and received by the Agent at [________], [___________],
Attention: [____________], telecopy: (___) ___-____, or at any other
address furnished in writing by the Agent to the Holders and the
Company; or
(b) the Company by the Agent or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered, mailed, first-class postage prepaid, telecopied
or delivered by overnight air courier guaranteeing at least second day
delivery, addressed to and received by the Company at Union Planters
Corporation, 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, Attention:
X. Xxxxx House, Jr., Secretary and Manager of the Legal Department,
telecopy: (000) 000-0000, or at any other address furnished in writing
to the Agent by the Company; or
(c) the Collateral Agent by the Agent, the Company or any
Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished or filed
in writing and personally delivered, mailed, first-class postage
prepaid, telecopied or delivered by overnight air courier guaranteeing
next day delivery, addressed to and received by the Collateral Agent at
[________], [________], Attention: [_________], telecopy: (___)
___-____, or at any other address furnished in writing by the
Collateral Agent to the Agent, the Company and the Holders; or
(d) the Trustee by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered,
mailed, first-class postage prepaid, telecopied or delivered by
overnight air courier guaranteeing next day delivery, addressed to and
received by the Trustee at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Global Corporate Trust Services, telecopy: (312)
407-1708, or at any other address furnished in writing by the Trustee
to the Company.
SECTION 1.6 Notice to Holders; Waiver.
(a) Where this Agreement provides for notice to Holders
of any event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at its address
as it appears in the applicable Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Agreement
provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Agent, but such
filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
13
(b) In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to
give such notice by mail, then such notification as shall be made with
the approval of the Agent shall constitute a sufficient notification
for every purpose hereunder.
SECTION 1.7 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.8 Successors and Assigns.
All covenants and agreements in this Agreement by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.9 Separability Clause.
If any provision hereof is invalid and unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in order to carry out the intentions of the parties
hereto as nearly as may be possible and (ii) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
SECTION 1.10 Benefits of Agreement.
Nothing in this Agreement or in the Units, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and, to the extent provided hereby, the Holders, any benefits or any
legal or equitable right, remedy or claim under this Agreement. The Holders from
time to time shall be beneficiaries of this Agreement and shall be bound by all
of the terms and conditions hereof and of the Units evidenced by their
Certificates by their acceptance of delivery of such Certificates.
SECTION 1.11 Governing Law.
This Agreement and the Units shall be governed by, deemed to
be a contract under, and construed in accordance with, the laws of the State of
New York.
SECTION 1.12 Legal Holidays.
(a) In any case where any Payment Date shall not be a
Business Day, then (notwithstanding any other provision of this
Agreement or the Normal Units Certificates) payments on the Units shall
not be made on such date, but such payments shall be made on the next
succeeding day which is a 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 in respect of such payment for the period
from and after any such Payment Date, except that if such next
succeeding Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day with
the same force and effect as if made on such Payment Date.
(b) If any date on which Contract Adjustment Payments are
to be made on the Purchase Contracts is not a Business Day, then
payment of the Contract Adjustment Payments payable on that date will
be made on the next succeeding day which is a Business Day, and no
interest or additional payment will be paid in respect of the delay.
However, if that Business Day is in the next succeeding calendar year,
the payment will be made on the immediately preceding Business Day with
the same force and effect as if made on that Payment Date.
(c) In any case where the Stock Purchase Date shall not
be a Business Day, then (notwithstanding any other provision of this
Agreement or the Certificates) the Purchase Contracts shall not
14
be performed on such date, but the Purchase Contracts shall be
performed on the next succeeding day which is a Business Day with the
same force and effect as if performed on the Stock Purchase Date.
SECTION 1.13 Counterparts.
This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument, and
any of the parties hereto may execute this Agreement by signing any such
counterpart.
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.
SECTION 1.15 Appointment of Financial Institution as Agent for
the Company.
The Company may appoint a financial institution (which may be
the Collateral Agent) to act as its agent in performing its obligations and in
accepting and enforcing performance of the obligations of the Agent and the
Holders, under this Agreement and the Purchase Contracts, by giving notice of
such appointment in the manner provided in Section 1.5 hereof. Any such
appointment shall not relieve the Company in any way from its obligation
hereunder.
SECTION 1.16 No Waiver.
No failure on the part of the Company, the Agent, the
Collateral Agent, the Securities Intermediary or any of their respective agents
to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Company, the Agent, the
Collateral Agent, the Securities Intermediary or any of their respective agents
of any right, power or remedy hereunder preclude any further exercise thereof or
the exercise of any right, power or remedy. The remedies herein are cumulative
and are not exclusive of any remedies provided by law.
ARTICLE II
CERTIFICATE FORMS
SECTION 2.1 Forms of Certificates Generally.
(a) The Normal Units Certificates (including the form of
Purchase Contract forming part of the Normal 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 or
quotation system on which the Normal Units are listed or quoted for
trading or any depositary therefor, or as may, consistently herewith,
be determined by the officers of the Company executing such Normal
Units Certificates, as evidenced by their execution of the Normal Units
Certificates.
(b) The definitive Normal Units 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 such Normal Units Certificates, consistent with the
provisions of this Agreement, as evidenced by their execution thereof.
(c) The Stripped Units Certificates (including the form
of Purchase Contracts forming part of the Stripped Units evidenced
thereby) shall be in substantially the form set forth in Exhibit B
hereto, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or
engraved thereon as may be required by the rules of any securities
exchange or the quotation system on which the Stripped Units may be
listed or quoted for trading or any depositary
15
therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Stripped Units Certificates, as
evidenced by their execution of the Stripped Units Certificates.
(d) The definitive Stripped Units Certificates shall be
printed, 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 such Stripped Units Certificates, consistent with the
provisions of this Agreement, as evidenced by their execution thereof.
(e) Every Global Certificate authenticated, executed on
behalf of the Holders and delivered hereunder shall bear a legend in
substantially the following form:
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING
OF THE PURCHASE CONTRACT AGREEMENT (AS DEFINED ON THE REVERSE
HEREOF) AND IS REGISTERED IN THE NAME OF THE CLEARING AGENCY
OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER
OF THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN SUCH CLEARING AGENCY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE PURCHASE CONTRACT AGREEMENT.
[Unless this Certificate is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the Company or its agent for
registration of transfer, exchange or payment, and any
Certificate issued is registered in the name of Cede & Co., or
such other name as requested by an authorized representative
of The Depository Trust Company, and any payment hereon is
made to Cede & Co. or to such other entity as is requested by
an authorized representative of The Depository Trust Company,
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.]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
CERTIFICATES IN DEFINITIVE REGISTERED FORM IN THE LIMITED
CIRCUMSTANCES REFERRED TO IN THE PURCHASE CONTRACT AGREEMENT,
THIS GLOBAL CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT 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 OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY."
SECTION 2.2 Form of Agent's Certificate of Authentication.
(a) The form of the Agent's certificate of authentication
of the Normal Units shall be in substantially the form set forth on the
form of the Normal Units Certificates.
(b) The form of the Agent's certificate of authentication
of the Stripped Units shall be in substantially the form set forth on
the form of the Stripped Units Certificates.
ARTICLE III
THE UNITS
SECTION 3.1 Number of Units; Denominations.
(a) The aggregate number of Normal Units and Stripped
Units, if any, evidenced by Certificates authenticated, executed on
behalf of the Holders and delivered hereunder is limited to
16
[_________] ([_________] if the underwriters' option to purchase
additional Normal Units pursuant to the Underwriting Agreement is
exercised in full), except for Certificates authenticated, executed on
behalf of the Holder 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(e), 5.10(e) or 8.5.
(b) The Certificates shall be issuable only in registered
form and only in denominations of a single Unit and any integral
multiple thereof.
SECTION 3.2 Rights and Obligations Evidenced by the
Certificates.
(a) Each Normal Units Certificate shall evidence the
number of Normal Units specified therein, with each such Normal Unit
representing the ownership by the Holder thereof of a 1/[__] undivided
beneficial interest in a Note in the original principal amount of
$[____] or the appropriate Treasury Consideration, as the case may be,
subject to the Pledge of such interest in such Note or the Treasury
Consideration, as the case may be, by such Holder pursuant to the
Pledge Agreement, and the rights and obligations of the Holder thereof
and the Company under one Purchase Contract. The Agent, as
attorney-in-fact for, and on behalf of, the Holder of each Normal Unit,
shall pledge, pursuant to the Pledge Agreement, the interest in such
Note or the Treasury Consideration forming a part of such Normal 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
interest in such Note or Treasury Consideration for the benefit of the
Company, to secure the obligation of such Holder under the related
Purchase Contract to purchase shares of Common Stock of the Company.
(b) Each Stripped Units Certificate shall evidence the
number of Stripped Units specified therein, with each such Stripped
Unit representing the ownership by the Holder thereof of a 1/[__]
undivided beneficial interest in a Treasury Security, subject to the
Pledge of such interest in such Treasury Security by such Holder
pursuant to the Pledge Agreement, and the rights and obligations of the
Holder thereof and the Company under one Purchase Contract. The Agent,
as attorney-in-fact for, and on behalf of, the Holder of each Stripped
Unit, shall pledge, pursuant to the Pledge Agreement, the interest in
the Treasury Security forming a part of such Stripped Unit, to the
Collateral Agent and grant to the Collateral Agent a security interest
in the right, title, and interest of such Holder in such interest in
the Treasury Security for the benefit of the Company, to secure the
obligation of such Holder under the related Purchase Contract to
purchase shares of Common Stock of the Company.
(c) Prior to the purchase of shares of Common Stock under
each Purchase Contract, such Purchase Contract shall not entitle the
Holder of the related Units Certificates to any of the rights of a
holder of shares of Common Stock, including, without limitation, the
right to vote or receive any dividends or other payments or to consent
or to receive notice as 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.
(a) Subject to the provisions of Sections 3.13 and 3.14,
upon the execution and delivery of this Agreement, and at any time and
from time to time thereafter, the Company may deliver Certificates
executed by the Company to the Agent for authentication, execution on
behalf of the Holders and delivery, together with its Issuer Order for
authentication and delivery of such Certificates, and the Agent in
accordance with such Issuer Order shall authenticate, execute on behalf
of the Holders and deliver such Certificates.
(b) The Certificates shall be executed on behalf of the
Company by the Chief Executive Officer, President, Chief Financial
Officer, Treasurer, any Senior Executive Vice President, any Executive
Vice President, Senior Vice President of Accounting, any Assistant
Treasurer, the Secretary or any Assistant Secretary (or other officer
performing similar functions) of the Company and delivered to the
Agent. The signature of any of these officers on the Certificates may
be manual or facsimile.
17
(c) Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Certificates or did not hold
such offices at the date of such Certificates.
(d) No 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 Agent,
as such Holder's attorney-in-fact. Such signature by an authorized
officer of the Agent shall be conclusive evidence that the Holder of
such Certificate has entered into the Purchase Contract or Purchase
Contracts evidenced by such Certificate.
(e) Each Certificate shall be dated the date of its
authentication.
(f) No Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose unless there
appears on such Certificate a certificate of authentication
substantially in the form provided for herein executed by an authorized
officer of the Agent by manual signature, and such certificate upon any
Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder.
SECTION 3.4 Temporary Certificates.
(a) Pending the preparation of definitive Certificates,
the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holders, and deliver, in lieu of
such definitive Certificates, temporary Certificates which are in
substantially the form set forth in Exhibit A or Exhibit B hereto, as
the case may be, with such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Normal Units or Stripped Units, as the
case may be, are listed or quoted for trading or any depositary
transfer, or as may, consistently herewith, be determined by the
officers of the Company executing such Certificates, as evidenced by
their execution of the Certificates.
(b) If temporary Certificates are issued, the Company
will cause definitive Certificates to be prepared without unreasonable
delay. After the preparation of definitive Certificates, the temporary
Certificates shall be exchangeable for definitive Certificates upon
surrender of the temporary Certificates at the Corporate Trust Office
or such other office or agency designated pursuant to Section 10.2 at
the expense of the Company and without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Certificates,
the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, one or more definitive Certificates of like tenor and
denominations and evidencing a like number of Normal Units or Stripped
Units, as the case may be, as the temporary Certificate or Certificates
so surrendered. Until so exchanged, the temporary Certificates shall in
all respects evidence the same benefits and the same obligations with
respect to the Normal Units or Stripped Units, as the case may be,
evidenced thereby as definitive Certificates.
SECTION 3.5 Registration; Registration of Transfer and
Exchange.
(a) The Agent shall keep at the Corporate Trust Office a
register (the register maintained in such office or in any other office
or agency designated pursuant to Section 10.2 being herein referred to
as "Normal Units Register") in which, subject to such reasonable
regulations as it may prescribe, the Agent shall provide for the
registration of Normal Units Certificates and of transfers of Normal
Units Certificates (the Agent, in such capacity, the "Normal Units
Registrar") and a register (the register maintained in such office or
in any other office or agency designated pursuant to Section 10.2 being
herein referred to as the "Stripped Units Register") in which, subject
to such reasonable regulations as it may prescribe, the Agent shall
provide for the registration of the Stripped Units Certificates and
transfers of Stripped Units Certificates (the Agent, in such capacity,
the "Stripped Units Registrar").
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(b) Upon surrender for registration of transfer of any
Certificate at the Corporate Trust Office or such office or agency
designated pursuant to Section 10.2, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the designated transferee or transferees, and deliver one or
more new Certificates of like tenor and denominations, registered in
the name of the designated transferee or transferees, and evidencing a
like number of Normal Units or Stripped Units, as the case may be.
(c) At the option of the Holder, Certificates may be
exchanged for other Certificates, of like tenor and denominations and
evidencing a like number of Normal Units or Stripped Units, as the case
may be, upon surrender of the Certificates to be exchanged at such
office or agency. Whenever any Certificates are so surrendered for
exchange, the Company shall execute and deliver to the Agent, and the
Agent shall authenticate, execute on behalf of the Holder, and deliver
the Certificates which the Holder making the exchange is entitled to
receive.
(d) All Certificates issued upon any registration of
transfer or exchange of a Certificate shall evidence the ownership of
the same number of Normal Units or Stripped Units, as the case may be,
and be entitled to the same benefits and subject to the same
obligations, under this Agreement as the Normal Units or Stripped
Units, as the case may be, evidenced by the Certificate surrendered
upon such registration of transfer or exchange.
(e) Every Certificate presented or surrendered for
registration of transfer or for exchange shall (if so required by the
Company or the Agent) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Agent duly executed by the Holder thereof or its attorney duly
authorized in writing.
(f) No service charge shall be made for any registration
of transfer or exchange of a Certificate, but the Company and the Agent
may require payment from the Holder of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with
any registration of transfer or exchange of Certificates, other than
any exchanges pursuant to Sections 3.6, 3.9 and 8.5 not involving any
transfer.
(g) Notwithstanding the foregoing, the Company shall not
be obligated to issue or execute and deliver to the Agent, and the
Agent shall not be obligated to authenticate, execute on behalf of the
Holder and deliver, any Certificate presented or surrendered for
registration of transfer or for exchange on or after the Business Day
immediately preceding the earlier of the Stock Purchase Date or the
Termination Date. In lieu of delivery of a new Certificate, upon
satisfaction of the applicable conditions specified above in this
Section and receipt of appropriate registration or transfer
instructions from such Holder, the Agent shall,
(i) if the Stock Purchase Date has occurred,
deliver the shares of Common Stock issuable in respect of the
Purchase Contracts forming a part of the Units evidenced by
such Certificate,
(ii) in the case of Normal Units, if a
Termination Event shall have occurred prior to the Stock
Purchase Date, transfer the Notes or the appropriate Treasury
Consideration, as applicable, relating to such Normal Units,
or
(iii) in the case of Stripped Units, if a
Termination Event shall have occurred prior to the Stock
Purchase Date, transfer the Treasury Securities relating to
such Stripped Units,
in each case subject to the applicable conditions and in accordance with the
applicable provisions of Article V.
19
SECTION 3.6 Book-Entry Interests.
The Certificates, on original issuance, will be issued in the
form of one or more fully registered Global Certificates, to be delivered to the
Depositary or a nominee or custodian thereof by, or on behalf of, the Company.
Such Global Certificate shall initially be registered on the books and records
of the Company in the name of Cede & Co., the nominee of the Depositary, and no
Beneficial Owner will receive a definitive Certificate representing such
Beneficial Owner's interest in such Global Certificate, except as provided in
Section 3.9. The Agent shall enter into a customary agreement with the
Depositary if so requested by the Company. Unless and until definitive, fully
registered Certificates have been issued to Beneficial Owners pursuant to
Section 3.9:
(a) the provisions of this Section 3.6 shall be
in full force and effect;
(b) the Company and the Agent shall be entitled to deal
with the Clearing Agency for all purposes of this Agreement (including
the payment of Contract Adjustment Payments, if any, and receiving
approvals, votes or consents hereunder) as the Holder of the Units and
the sole holder of the Global Certificate(s) and shall have no
obligation to the Beneficial Owners;
(c) to the extent that the provisions of this Section 3.6
conflict with any other provisions of this Agreement or any
Certificate, the provisions of this Section 3.6 shall control; and
(d) the rights of the Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Beneficial Owners
and the Clearing Agency and/or the Clearing Agency Participants.
The Clearing Agency will make book-entry transfers among
Clearing Agency Participants and receive and transmit payments of Contract
Adjustment Payments to such Clearing Agency Participants.
SECTION 3.7 Notices to Holders.
Whenever a notice or other communication to the Holders is
required to be given under this Agreement, the Company or the Company's agent
shall give such notices and communications to the Holders and, with respect to
any Units registered in the name of a Clearing Agency or the nominee of a
Clearing Agency, the Company or the Company's agent shall, except as set forth
herein, have no obligations to the Beneficial Owners.
SECTION 3.8 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Units, the Company may, in its sole
discretion, appoint a successor Clearing Agency with respect to the Units.
SECTION 3.9 Definitive Certificates.
If
(i) a Clearing Agency notifies the Company that
it is unwilling or unable to continue its services as
securities depositary with respect to the Units and a
successor Clearing Agency is not appointed within 90 days
after such discontinuance pursuant to Section 3.8,
(ii) the Company elects to terminate the
book-entry system arrangements through the Clearing Agency
with respect to the Units, or
(iii) there shall have occurred and be continuing
a default by the Company in respect of its obligations under
(x) one or more Purchase Contracts or (y) the indenture
governing the Notes,
20
then, upon surrender of the Global Certificates representing the Book-Entry
Interests with respect to the Units by the Clearing Agency, accompanied by
registration instructions, the Company shall cause definitive Certificates to be
delivered to Beneficial Owners in accordance with the instructions of the
Clearing Agency. The Company shall not be liable for any delay in delivery of
such instructions and may conclusively rely on and shall be protected in relying
on, such instructions.
SECTION 3.10 Mutilated, Destroyed, Lost and Stolen
Certificates.
(a) If any mutilated Certificate is surrendered to the
Agent, the Company shall execute and deliver to the Agent, and the
Agent shall authenticate, execute on behalf of the Holder, and deliver
in exchange therefor, a new Certificate at the cost of the Holder,
evidencing the same number of Normal Units or Stripped Units, as the
case may be, and bearing a Certificate number not contemporaneously
outstanding.
(b) If there shall be delivered to the Company and the
Agent (i) evidence to their satisfaction of the destruction, loss or
theft of any Certificate, and (ii) such security or indemnity at the
cost of the Holder as may be required by them to hold each of them and
any agent of either of them harmless, then, in the absence of notice to
the Company or to a Responsible Officer of the Agent that such
Certificate has been acquired by a protected purchaser, the Company
shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver to the
Holder, in lieu of any such destroyed, lost or stolen Certificate, a
new Certificate, evidencing the same number of Normal Units or Stripped
Units, as the case may be, and bearing a Certificate number not
contemporaneously outstanding.
(c) Notwithstanding the foregoing, the Company shall not
be obligated to execute and deliver to the Agent, and the Agent shall
not be obligated to authenticate, execute on behalf of the Holder, and
deliver to the Holder, a Certificate on or after the Business Day
immediately preceding the earlier of the Stock Purchase Date or the
Termination Date. In lieu of delivery of a new Certificate, upon
satisfaction of the applicable conditions specified above in this
Section and receipt of appropriate registration or transfer
instructions from such Holder, the Agent shall
(i) if the Stock Purchase Date has occurred,
deliver the shares of Common Stock issuable in respect of the
Purchase Contracts forming a part of the Units evidenced by
such Certificate,
(ii) in the case of Normal Units, if a
Termination Event shall have occurred prior to the Stock
Purchase Date, transfer the Notes or the appropriate Treasury
Consideration, as applicable, relating to such Normal Units,
or
(iii) in the case of Stripped Units, if a
Termination Event shall have occurred prior to the Stock
Purchase Date, transfer the Treasury Securities relating to
such Stripped Units,
in each case subject to the applicable conditions and in accordance with the
applicable provisions of Article V.
(d) Upon the issuance of any new Certificate under this
Section, the Company and the Agent may require the payment by the
Holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Agent) connected therewith.
(e) Every new Certificate issued pursuant to this Section
in lieu of any destroyed, lost or stolen Certificate shall constitute
an original additional contractual obligation of the Company and of the
Holder in respect of the Unit evidenced thereby, whether or not the
destroyed, lost or stolen Certificate (and the Units evidenced thereby)
shall be at any time enforceable by anyone, and shall be entitled to
all the benefits and be subject to all the obligations of this
Agreement equally and proportionately with any and all other
Certificates delivered hereunder.
21
(f) The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Certificates.
SECTION 3.11 Persons Deemed Owners.
(a) Prior to due presentment of a Certificate for
registration of transfer, the Company and the Agent, and any agent of
the Company or the Agent, may treat the Person in whose name such
Certificate is registered on the Register as the owner of the Units
evidenced thereby, for the purpose of receiving quarterly payments on
the Notes or Treasury Consideration, receiving payment of Contract
Adjustment Payments, if any, and any Deferred Contract Adjustment
Payments, performance of the Purchase Contracts and for all other
purposes whatsoever, whether or not any such payments shall be overdue
and notwithstanding any notice to the contrary, and neither the Company
nor the Agent, nor any agent of the Company or the Agent, shall be
affected by notice to the contrary.
(b) Notwithstanding the foregoing, with respect to any
Global Certificate, nothing herein shall prevent the Company, the Agent
or any agent of the Company or the Agent, from treating the Clearing
Agency as the sole Holder of such Global Certificate or from giving
effect to any written certification, proxy or other authorization
furnished by any Clearing Agency (or its nominee), as a Holder of such
Global Certificate, 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 a
Holder of such Global Certificate.
SECTION 3.12 Cancellation.
(a) All Certificates surrendered (i) for delivery of
Common Stock on or after any Settlement Date; (ii) upon the transfer of
Notes or Treasury Consideration or Treasury Securities, as the case may
be, after the occurrence of a Termination Event or pursuant to an Early
Settlement or Merger Early Settlement, or a Collateral Substitution or
an establishment or re-establishment of a Normal Unit; or (iii) upon
the registration of a transfer or exchange of a Unit shall, if
surrendered to any Person other than the Agent, be delivered to the
Agent and, if not already cancelled, shall be promptly cancelled by it.
The Company may at any time deliver to the Agent for cancellation any
Certificates previously authenticated, executed on behalf of the Holder
and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Certificates so delivered shall, upon Issuer
Order, be promptly cancelled by the Agent. No Certificates shall be
authenticated, executed on behalf of the Holder and delivered in lieu
of or in exchange for any Certificates cancelled as provided in this
Section, except as expressly permitted by this Agreement. All cancelled
Certificates held by the Agent shall be disposed of by the Agent in
accordance with its then customary procedures.
(b) If the Company or any Affiliate of the Company shall
acquire any Certificate, such acquisition shall not operate as a
cancellation of such Certificate unless and until such Certificate is
delivered to the Agent cancelled or for cancellation.
SECTION 3.13 Establishment of Stripped Units.
(a) A Holder may separate the Pledged Notes or Pledged
Treasury Consideration, as applicable, from the related Purchase
Contracts in respect of the Normal Units held by such Holder by
substituting for such Pledged Notes or Pledged Treasury Consideration,
as the case may be, Treasury Securities that will pay at the Stock
Purchase Date an amount equal to the aggregate Stated Amount of such
Normal Units (a "Collateral Substitution"), at any time from and after
the date of this Agreement and on or prior to the seventh Business Day
immediately preceding the Stock Purchase Date, by (i) depositing with
the Collateral Agent Treasury Securities having an aggregate principal
amount equal to the aggregate Stated Amount of such Normal Units, and
(ii) transferring the related Normal Units to the Agent accompanied by
a notice to the Agent, substantially in the form of Exhibit D hereto,
stating that the Holder has transferred the relevant amount of Treasury
Securities to the Collateral Agent and requesting that the
22
Agent instruct the Collateral Agent to release the Pledged Notes or
Pledged Treasury Consideration, as the case may be, underlying such
Normal Units, whereupon the Agent shall promptly give such instruction
to the Collateral Agent, substantially in the form of Exhibit C hereto.
Notwithstanding the foregoing, a Holder may not separate the Pledged
Notes or Pledged Treasury Consideration from the related Purchase
Contracts in respect of the Normal Units held by such Holder during the
period beginning on the fourth Business Day prior to the first day of
the first or second Remarketing Period and ending on the third Business
Day after the end of such Remarketing Period. Upon receipt of the
Treasury Securities described in clause (i) above and the instruction
described in clause (ii) above, in accordance with the terms of the
Pledge Agreement, the Collateral Agent will release to the Agent, on
behalf of the Holder, such Pledged Notes or Pledged Treasury
Consideration from the Pledge, free and clear of the Company's security
interest therein, and upon receipt thereof the Agent shall promptly:
(x) cancel the related Normal Units;
(y) transfer the Pledged Notes or Pledged
Treasury Consideration, as the case may be, to the Holder; and
(z) authenticate, execute on behalf of such
Holder and deliver a Stripped Units Certificate executed by
the Company in accordance with Section 3.3 evidencing the same
number of Purchase Contracts as were evidenced by the
cancelled Normal Units.
(b) Holders who elect to separate the Pledged Notes or
Pledged Treasury Consideration, as the case may be, from the related
Purchase Contract and to substitute Treasury Securities for such
Pledged Notes or Pledged Treasury Consideration shall be responsible
for any fees or expenses payable to the Collateral Agent for its
services as Collateral Agent in respect of the substitution, and the
Company shall not be responsible for any such fees or expenses.
(c) Holders may make Collateral Substitutions (i) if
Treasury Securities are being substituted for Pledged Notes, only in
integral multiples of [__] Normal Units, or (ii) if the Collateral
Substitutions occur after a successful remarketing of the Notes
pursuant to the provisions of Section 5.4 or after a Special Event
Redemption, as the case may be, only in integral multiples of Normal
Units such that the Treasury Securities to be deposited and the
Treasury Consideration to be released are in integral multiples of
$[____].
(d) In the event a Holder making a Collateral
Substitution pursuant to this Section 3.13 fails to effect a book-entry
transfer of the Normal Units or fails to deliver a Normal Units
Certificate to the Agent after depositing Treasury Securities with the
Collateral Agent, the Pledged Notes or Pledged Treasury Consideration,
as the case may be, constituting a part of such Normal Units, and any
distributions on such Pledged Notes or Pledged Treasury Consideration
shall be held in the name of the Agent or its nominee in trust for the
benefit of such Holder, until such Normal Units are so transferred or
the Normal Units Certificate is so delivered, as the case may be, or,
with respect to a Normal Units Certificate, such Holder provides
evidence satisfactory to the Company and the Agent that such Normal
Units Certificate has been destroyed, lost or stolen, together with any
indemnity that may be required by the Agent and the Company.
(e) Except as described in this Section 3.13, for so long
as the Purchase Contract underlying a Normal Unit remains in effect,
such Normal Unit shall not be separable into its constituent parts, and
the rights and obligations of the Holder of such Normal Unit in respect
of the Pledged Note or the Pledged Treasury Consideration, as the case
may be, and the Purchase Contract comprising such Normal Unit may be
acquired, and may be transferred and exchanged, only as a Normal Unit.
SECTION 3.14 Reestablishment of Normal Units.
(a) A Holder of Stripped Units may reestablish Normal
Units at any time from and after the date of this Agreement and on or
prior to the seventh Business Day immediately preceding the Stock
23
Purchase Date, by (i) depositing with the Collateral Agent Notes in a
principal amount or the appropriate Treasury Consideration (identified
and calculated by reference to the Treasury Consideration then
comprising Normal Units), as the case may be, then comprising such
number of Normal Units as is equal to the number of such Stripped Units
and (ii) transferring such Stripped Units to the Agent accompanied by a
notice to the Agent, substantially in the form of Exhibit D hereto,
stating that the Holder has transferred the relevant principal amount
of Notes or the appropriate Treasury Consideration, as the case may be,
to the Collateral Agent and requesting that the Agent instruct the
Collateral Agent to release the Pledged Treasury Securities underlying
such Stripped Unit, whereupon the Agent shall promptly give such
instruction to the Collateral Agent, substantially in the form of
Exhibit C hereto. Notwithstanding the foregoing, a Holder may not
reestablish Normal Units during the period beginning on the fourth
Business Day prior to the first day of the first or second Remarketing
Period and ending on the third Business Day after the end of such
Remarketing Period. Upon receipt of the Notes or the appropriate
Treasury Consideration, as the case may be, described in clause (i)
above and the instruction described in clause (ii) above, in accordance
with the terms of the Pledge Agreement, the Collateral Agent will
release to the Agent, on behalf of the Holder, such Pledged Treasury
Securities from the Pledge, free and clear of the Company's security
interest therein, and upon receipt thereof the Agent shall promptly:
(x) cancel the related Stripped Units;
(y) transfer the Pledged Treasury Securities to
the Holder; and
(z) authenticate, execute on behalf of such
Holder and deliver a Normal Units Certificate executed by the
Company in accordance with Section 3.3 evidencing the same
number of Purchase Contracts as were evidenced by the
cancelled Stripped Units.
(b) Holders of Stripped Units may reestablish Normal
Units (i) if Notes are being substituted for the Pledged Treasury
Securities, only in integral multiples of [__] Stripped Units for [__]
Normal Units or (ii) if the reestablishment occurs after a successful
remarketing of the Notes pursuant to the provisions of Section 5.4 or
after a Special Event Redemption, as the case may be, only in integral
multiples of Stripped Units such that the Treasury Consideration to be
deposited and the Treasury Securities to be released are in integral
multiples of $[____].
(c) Except as provided in this Section 3.14, for so long
as the Purchase Contract underlying a Stripped Unit remains in effect,
such Stripped Unit shall not be separable into its constituent parts,
and the rights and obligations of the Holder of such Stripped Unit in
respect of the Pledged Treasury Securities and Purchase Contract
comprising such Stripped Unit may be acquired, and may be transferred
and exchanged, only as a Stripped Unit.
SECTION 3.15 Transfer of Collateral upon Occurrence of
Termination Event.
Upon the occurrence of a Termination Event and the transfer to
the Agent of the Notes or the appropriate Treasury Consideration or the Treasury
Securities, as the case may be, underlying the Normal Units and the Stripped
Units pursuant to the terms of the Pledge Agreement, the Agent shall request
transfer instructions with respect to such Notes or the appropriate Treasury
Consideration or Treasury Securities, as the case may be, from each Holder by
written request mailed to such Holder at its address as it appears in the Normal
Units Register or the Stripped Units Register, as the case may be. Upon
book-entry transfer of the Normal Units or Stripped Units or delivery of a
Normal Units Certificate or Stripped Units Certificate to the Agent with such
transfer instructions, the Agent shall transfer the Notes, the appropriate
Treasury Consideration or the Treasury Securities underlying such Normal Units
or Stripped Units, as the case may be, to such Holder by book-entry transfer, or
other appropriate procedures, in accordance with such instructions. In the event
a Holder of Normal Units or Stripped Units fails to effect such transfer or
delivery, the Notes, the appropriate Treasury Consideration or the Treasury
Securities, as the case may be, underlying such Normal Units or Stripped Units,
as the case may be, and any distributions thereon, shall be held in the name of
the Agent or its nominee in trust for the benefit of such Holder, until such
Normal Units or Stripped Units are transferred or the Normal Units Certificate
or Stripped Units Certificate is surrendered or such Holder provides
satisfactory evidence that such Normal Units Certificate or Stripped Units
Certificate has been destroyed, lost or stolen, together with any indemnity that
may be required by the Agent and the Company. In the
24
case of the Treasury Portfolio or any Treasury Securities, the Agent may dispose
of the subject securities for cash and pay the applicable portion of such cash
to the Holders in lieu of such Holders' Treasury Securities, where such Holder
would otherwise have been entitled to receive less than $[____] of any such
security.
SECTION 3.16 No Consent to Assumption.
Each Holder of a Unit, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption (i.e., affirmance),
under Section 365 of the Bankruptcy Code or otherwise, of the Purchase Contract
by the Company, any receiver, liquidator or person or entity performing similar
functions or its trustee in the event that the Company becomes the debtor under
the Bankruptcy Code or subject to other similar state or federal law providing
for reorganization or liquidation.
SECTION 3.17 CUSIP Numbers.
The Company in issuing the Units may use "CUSIP" numbers (if
then generally in use), and, if so, the Agent shall use "CUSIP" numbers in
notices to Holders as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice to Holders and
that reliance may be placed only on the other identification numbers printed on
the Units, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Agent of any
changes in the "CUSIP" numbers.
ARTICLE IV
THE NOTES
SECTION 4.1 Payment of Interest; Rights to Interest Payments
Preserved; Notice.
(a) A payment on any Note or Treasury Consideration, as
the case may be, which is paid on any Payment Date shall, subject to
receipt thereof by the Agent from the Collateral Agent as provided by
the terms of the Pledge Agreement, be paid to the Person in whose name
the Normal Units Certificate (or one or more Predecessor Normal Units
Certificates), of which such Note or the appropriate Treasury
Consideration is a part, is registered at the close of business on the
Record Date for such Payment Date.
(b) Each Normal Units Certificate evidencing Notes
delivered under this Agreement upon registration of transfer of or in
exchange for or in lieu of any other Normal Units Certificate shall
carry the rights to interest accrued and unpaid, and rights to accrue
interest, which were carried by the Notes underlying such other Normal
Units Certificate.
(c) In the case of any Normal Unit, with respect to which
Early Settlement of the underlying Purchase Contract is effected on an
Early Settlement Date, or with respect to which Merger Early Settlement
of the underlying Purchase Contract is effected on a Merger Early
Settlement Date, or with respect to which Cash Settlement is effected
on the Business Day immediately preceding the Stock Purchase Date, or
with respect to which a Collateral Substitution is effected, in each
case on a date that is after any Record Date and on or prior to the
next succeeding Payment Date, payments on the Note or the appropriate
Treasury Consideration, as the case may be, underlying such Normal Unit
otherwise payable on such Payment Date shall be payable on such Payment
Date notwithstanding such Early Settlement, Merger Early Settlement,
Cash Settlement or Collateral Substitution, as the case may be, and
such payments shall, subject to receipt thereof by the Agent, be
payable to the Person in whose name the Normal Units Certificate (or
one or more Predecessor Normal Unit Certificates) was 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
Normal Unit with respect to which Early Settlement, Merger Early
Settlement or Cash Settlement of the underlying Purchase Contract is
effected, or with respect to which a Collateral Substitution has been
effected, payments on the related Notes or payments on the appropriate
Treasury Consideration that would otherwise be payable after the
applicable Settlement Date or after such Collateral Substitution, as
the case may be, shall not be payable hereunder to the Holder of such
Normal Unit;
25
provided that, to the extent that such Holder continues to hold the
separated Notes that formerly comprised a part of such Holder's Normal
Units, such Holder shall be entitled to receive any payments on such
separated Notes.
SECTION 4.2 Notice and Voting.
Under and subject to the terms of the Pledge Agreement and
this Agreement, the Agent will be entitled to exercise the voting and any other
consensual rights pertaining to the Pledged Notes but only to the extent
instructed by the Holders as described below. Upon receipt of notice of any
meeting at which holders of Notes are entitled to vote or upon any solicitation
of consents, waivers or proxies of holders of Notes, the Agent shall, as soon as
practicable thereafter, mail to the Holders of Normal Units a notice prepared by
the Company at the Company's expense (a) containing such information as is
contained in the notice or solicitation, (b) stating that each Holder on the
record date set by the Agent therefor (which, to the extent possible, shall be
the same date as the record date for determining the holders of Notes entitled
to vote) shall be entitled to instruct the Agent as to the exercise of the
voting rights pertaining to the Pledged Notes underlying their Normal Units and
(c) stating the manner in which such instructions may be given. Upon the written
request of any Holder of Normal Units on such record date, the Agent shall
endeavor insofar as practicable to vote or cause to be voted, in accordance with
the instructions set forth in such request, the maximum number of Pledged Notes
as to which any particular voting instructions are received. In the absence of
specific instructions from the Holder of a Normal Unit, the Agent shall abstain
from voting the Pledged Note underlying such Normal Unit. The Company hereby
agrees, if applicable, to solicit Holders of Normal Units to timely instruct the
Agent in order to enable the Agent to vote such Pledged Notes.
SECTION 4.3 Special Event Redemption.
Upon the occurrence of a Special Event Redemption prior to the
successful remarketing of the Notes pursuant to the provisions of Section 5.4,
the Company shall instruct in writing the Collateral Agent to apply, and upon
such written instruction, the Collateral Agent shall apply, out of the aggregate
Redemption Price for the Notes that are components of Normal Units, an amount
equal to the Special Event Redemption Principal Amount to purchase on behalf of
the Holders of Normal Units the Treasury Portfolio and promptly remit the
remaining portion of such Redemption Price to the Agent for payment to the
Holders of such Normal Units. The Treasury Portfolio will be substituted for the
Pledged Notes, and will be pledged to the Collateral Agent in accordance with
the terms of the Pledge Agreement to secure the obligation of each Holder of a
Normal Unit to purchase the Common Stock under the Purchase Contract
constituting a part of such Normal Unit. Following the occurrence of a Special
Event Redemption prior to a successful remarketing of the Notes pursuant to the
provisions of Section 5.4, the Holders of Normal Units and the Collateral Agent
shall have such security interests, rights and obligations with respect to the
Treasury Portfolio as the Holder of Normal Units and the Collateral Agent had in
respect of the Notes, as the case may be, subject to the Pledge thereof as
provided in Articles II, III, IV, V and VI of the Pledge Agreement, and any
reference herein or in the Certificates to the Note shall be deemed to be a
reference to such Treasury Portfolio and any reference herein or in the
Certificates to interest on the Notes shall be deemed to be a reference to
corresponding distributions on the Treasury Portfolio. The Company may cause to
be made in any Normal Unit Certificates thereafter to be issued such change in
phraseology and form (but not in substance) as may be appropriate to reflect the
substitution of the Treasury Portfolio for Notes as collateral.
Upon the occurrence of a Special Event Redemption after the
successful remarketing of the Notes, the Redemption Price will be payable in
cash to the holders of the Notes.
SECTION 4.4 Consent to Treatment for Tax Purposes.
Each Holder of a Normal Unit or a Stripped Unit, by its
acceptance thereof, covenants and agrees to treat itself as the owner, for
federal, state and local income and franchise tax purposes of (i) the related
Notes or the appropriate Treasury Consideration, in the case of the Normal
Units, or (ii) the Treasury Securities, in the case of the Stripped Units. Each
Holder of a Normal Unit, by its acceptance thereof, further covenants and agrees
(i) to treat the Notes as indebtedness of the Company for federal, state and
local income and franchise tax purposes and (ii) to allocate [__]% of the issue
price of a Normal Unit to the beneficial interest in the Note and [__]% of the
issue price to the Purchase Contract.
26
ARTICLE V
THE PURCHASE CONTRACTS; THE REMARKETING
SECTION 5.1 Purchase of Common Stock.
(a) Each Purchase Contract shall, unless a Termination
Event, an Early Settlement or a Merger Early Settlement shall have
occurred prior to the Stock Purchase Date, obligate the Holder of the
related Unit to purchase, and the Company to sell, on the Stock
Purchase Date at a price equal to $[__] (the "Purchase Price"), a
number of validly issued, fully paid and non-assessable newly issued
shares of Common Stock equal to the Settlement Rate. The "Settlement
Rate" is equal to,
(i) if the Applicable Market Value (as defined
below) is equal to or greater than $[__] (the "Threshold
Appreciation Price"), [____] shares of Common Stock per
Purchase Contract,
(ii) if the Applicable Market Value is less than
the Threshold Appreciation Price, but is greater than $[__],
the number of shares of Common Stock per Purchase Contract
equal to the Purchase Price divided by the Applicable Market
Value, and
(iii) if the Applicable Market Value is equal to
or less than $[__], [____] 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).
(b) No fractional shares of Common Stock will be issued
by the Company with respect to the payment of Contract Adjustment
Payments on the Stock Purchase Date. In lieu of fractional shares
otherwise issuable with respect to such payment of Contract Adjustment
Payments, the Holder will be entitled to receive an amount in cash as
provided in Section 5.12.
(c) The "Applicable Market Value" means the average of
the Closing Price per share of Common Stock on each of the 20
consecutive Trading Days ending on the third Trading Day immediately
preceding the Stock Purchase Date or, in the event of a Cash Merger,
the Cash Merger Date. The "Closing Price" of the Common Stock on any
date of determination means the closing sale price (or, if no closing
sale price is reported, the last reported sale price) of the Common
Stock on the New York Stock Exchange (the "NYSE") on such date or, if
the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal
United States securities exchange on which the Common Stock is so
listed, or if the Common Stock is not so listed on a United States
securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Stock is not so reported, the last quoted bid price for the
Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization, or, if such bid price is not
available, the market value of the Common Stock on such date as
determined by a nationally recognized independent investment banking
firm retained for this purpose by the Company. A "Trading Day" means a
day on which the Common Stock (A) is not suspended from trading on any
national or regional securities exchange or association or
over-the-counter market at the close of business and (B) has traded at
least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for
the trading of the Common Stock at the close of business on such day.
(d) Each Holder of a Unit, by its acceptance thereof,
irrevocably authorizes the Agent to enter into and perform the related
Purchase Contract on its behalf as its attorney-in-fact (including the
execution of Certificates on behalf of such Holder), agrees to be bound
by the terms and provisions thereof, covenants and agrees to perform
its obligations under such Purchase Contract, consents to the
provisions hereof, irrevocably authorizes the Agent as its
attorney-in-fact to enter into and perform the Pledge Agreement on its
behalf as its attorney-in-fact, and consents to and agrees to be bound
by the Pledge of the
27
Notes, the appropriate Treasury Consideration or the Treasury
Securities pursuant to the Pledge Agreement; provided that upon a
Termination Event, the rights of the Holder of such Unit under the
Purchase Contract may be enforced without regard to any other rights or
obligations. Each Holder of a 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,
payments in respect of the Pledged Notes, the Pledged Treasury
Consideration or the Pledged Treasury Securities to be paid upon
settlement of such Holder's obligations to purchase shares of Common
Stock under the Purchase Contract, shall be paid on the Stock Purchase
Date by the Collateral Agent to the Company in satisfaction of such
Holder's obligations under such Purchase Contract and such Holder shall
acquire no right, title or interest in such payments.
(e) Upon registration of transfer of a Certificate, the
transferee shall be bound (without the necessity of any other action on
the part of such transferee) under the terms of this Agreement, the
Purchase 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 Certificate
so transferred and the Pledge Agreement. The Company covenants and
agrees, and each Holder of a Certificate, by its acceptance thereof,
likewise covenants and agrees, to be bound by the provisions of this
paragraph.
SECTION 5.2 Contract Adjustment Payments.
(a) Subject to Section 5.3, the Company shall pay, on
each Payment Date, the Contract Adjustment Payments, if any, payable in
respect of each Purchase Contract to the Person in whose name a
Certificate (or one or more Predecessor Certificates) is registered on
the Register 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 payments. The Contract
Adjustment Payments, if any, will be payable at the Corporate Trust
Office or, at the option of the Company, by check mailed to the address
of the Person entitled thereto at such Person's address as it appears
on the Register or by wire transfer to the account maintained in the
United States designated by a prior written notice by such Person.
(b) Upon the occurrence of a Termination Event, the
Company's obligation to pay Contract Adjustment Payments (including any
accrued and unpaid Deferred Contract Adjustment Payments), if any,
shall cease.
(c) Each Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any other
Certificate (including as a result of a Collateral Substitution or the
re-establishment of a Normal Unit) shall carry the rights to receive
Contract Adjustment Payments (including any accrued and unpaid Deferred
Contract Adjustment Payments), if any, and to accrue Contract
Adjustment Payments, if any, which were carried by the Purchase
Contracts underlying such other Certificates.
(d) Subject to Sections 5.4, 5.9 and 5.10, in the case of
any Unit with respect to which Early Settlement or Merger Early
Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date or a Merger Early Settlement Date, respectively, or in
respect of which Cash Settlement of the underlying Purchase Contract is
effected on the Business Day immediately preceding the Stock Purchase
Date, or with respect to which a Collateral Substitution or an
establishment or re-establishment of a Normal Unit pursuant to Section
3.14 is effected, in each case on a date that is after any Record Date
and on or prior to the next succeeding Payment Date, Contract
Adjustment Payments on the Purchase Contract underlying such Unit
otherwise payable on such Payment Date shall be payable on such Payment
Date notwithstanding such Cash Settlement, Early Settlement, Merger
Early Settlement, Collateral Substitution or establishment or
re-establishment of Normal Units, and such Contract Adjustment Payments
shall, subject to receipt thereof by the Agent, be payable to the
Person in whose name the Certificate evidencing such Unit (or one or
more Predecessor Certificates) was 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 Unit with respect to
which Early Settlement or Merger Early Settlement or Cash Settlement of
the underlying Purchase Contract is effected on an Early Settlement
Date or Merger Early Settlement Date or on the Business Day immediately
preceding the Stock Purchase Date, as the case may be, or with respect
to
28
which a Collateral Substitution or an establishment or re-establishment
of a Normal Unit has been effected, Contract Adjustment Payments, if
any, that would otherwise be payable after the Early Settlement Date,
or Merger Early Settlement Date, Collateral Substitution or such
establishment or re-establishment with respect to such Purchase
Contract shall not be payable.
(e) The Company's obligations with respect to Contract
Adjustment Payments (including any accrued or Deferred Contract
Adjustment Payments) will be subordinated and junior in right of
payment to the Company's obligations under any Senior Indebtedness to
the extent set forth in Section 5.2(f).
(f) Subject to the provisions of Section 5.8, in the
event (x) of any payment by, or distribution of assets of, the Company
of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution, winding-up, liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, or (y)
subject to the provisions of Section 5.2(h) below, that (i) a default
shall have occurred and be continuing with respect to the payment of
principal, interest or any other monetary amounts due and payable on
any Senior Indebtedness and such default shall have continued beyond
the period of grace, if any, specified in the instrument evidencing
such Senior Indebtedness (and the Agent shall have received written
notice thereof from the Company or one or more holders of Senior
Indebtedness or their representative or representatives or the trustee
or trustees under any indenture pursuant to which any such Senior
Indebtedness may have been issued), or (ii) the maturity of any Senior
Indebtedness shall have been accelerated because of a default in
respect of such Senior Indebtedness (and the Agent shall have received
written notice thereof from the Company or one or more holders of
Senior Indebtedness or their representative or representatives or the
trustee or trustees under any indenture pursuant to which any such
Senior Indebtedness may have been issued), then:
(i) the holders of all Senior Indebtedness shall
first be entitled to receive, in the case of clause (x) above,
payment in full of all amounts due or to become due upon all
Senior Indebtedness and, in the case of subclauses (i) and
(ii) of clause (y) above, payment of all amounts due thereon,
or provision shall be made for such payment in money or
money's worth, before the Holders of any of the Units are
entitled to receive any Contract Adjustment Payments on the
Purchase Contracts underlying the Units;
(ii) any payment by, or distribution of assets
of, the Company of any kind or character, whether in cash,
property or securities, to which the Holders of any of the
Units would be entitled except for the provisions of Sections
5.2(e) through (q), including any such payment or distribution
which may be payable or deliverable by reason of the payment
of any other indebtedness of the Company being subordinated to
the payment of such Contract Adjustment Payments on the
Purchase Contracts underlying the Units, shall be paid or
delivered by the Person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of such Senior
Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may
have been issued, ratably according to the aggregate amounts
remaining unpaid on account of such Senior Indebtedness held
or represented by each, to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid
after giving effect to any concurrent payment or distribution
(or provision therefor) to the holders of such Senior
Indebtedness, before any payment or distribution is made of
such Contract Adjustment Payments to the Holders of such
Units; and
(iii) in the event that, notwithstanding the
foregoing, any payment by, or distribution of assets of, the
Company of any kind or character, whether in cash, property or
securities, including any such payment or distribution which
may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to the
payment of Contract Adjustment Payments on the Purchase
Contracts underlying the Units, shall be received by the Agent
or the Holders of any of the Units when such payment or
distribution is prohibited pursuant to Sections 5.2(e) through
(q), such payment or distribution shall be paid over to the
holders of
29
such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any
such Senior Indebtedness may have been issued, ratably as
aforesaid, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect
to any concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness.
(g) For purposes of Sections 5.2(e) through (q), the
words "cash, property or securities" shall not be deemed to include
shares of stock of the Company as reorganized or readjusted, or
securities of the Company or any other Person provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at
least to the extent provided in Sections 5.2(e) through (q) with
respect to such Contract Adjustment Payments on the Units to the
payment of all Senior Indebtedness which may at the time be
outstanding; provided that (i) the indebtedness or guarantee of
indebtedness, as the case may be, that constitutes Senior Indebtedness
is assumed by the Person, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of
the Senior Indebtedness are not, without the consent of each such
holder adversely affected thereby, altered by such reorganization or
readjustment.
(h) Any failure by the Company to make any payment on or
perform any other obligation under Senior Indebtedness, other than any
indebtedness incurred by the Company or assumed or guaranteed, directly
or indirectly, by the Company for money borrowed (or any deferral,
renewal, extension or refunding thereof) or any indebtedness or
obligation as to which the provisions of Sections 5.2(e) through (g)
shall have been waived by the Company in the instrument or instruments
by which the Company incurred, assumed, guaranteed or otherwise created
such indebtedness or obligation, shall not be deemed a default or event
of default if (i) the Company shall be disputing its obligation to make
such payment or perform such obligation and (ii) either (A) no final
judgment relating to such dispute shall have been issued against the
Company which is in full force and effect and is not subject to further
review, including a judgment that has become final by reason of the
expiration of the time within which a party may seek further appeal or
review, and (B) in the event a judgment that is subject to further
review or appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review and a stay of
execution shall have been obtained pending such appeal or review.
(i) Subject to the payment in full of all Senior
Indebtedness, the Holders of the Purchase Contracts underlying the
Units shall be subrogated (equally and ratably with the holders of all
obligations of the Company which by their express terms are
subordinated to Senior Indebtedness of the Company to the same extent
as payment of the Contract Adjustment Payments in respect of the
Purchase Contracts underlying the Units is subordinated and which are
entitled to like rights of subrogation) to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior
Indebtedness until all such Contract Adjustment Payments owing on the
Purchase Contracts underlying the Units shall be paid in full, and as
between the Company, its creditors other than holders of such Senior
Indebtedness and the Holders, no such payment or distribution made to
the holders of Senior Indebtedness by virtue of Sections 5.2(e) through
(q) that otherwise would have been made to the Holders shall be deemed
to be a payment by the Company on account of such Senior Indebtedness,
it being understood that the provisions of Sections 5.2(e) through (q)
are and are intended solely for the purpose of defining the relative
rights of the Holders, on the one hand, and the holders of Senior
Indebtedness, on the other hand.
(j) Nothing contained in Sections 5.2(e) through (q) or
elsewhere in this Agreement or in the Units is intended to or shall
impair, as among the Company, its creditors other than the holders of
Senior Indebtedness and the Holders, the obligation of the Company,
which, subject to the occurrence of a Termination Event as described in
Section 5.2(b) and the Company's right pursuant to Section 5.3 to defer
Contract Adjustment Payments, is absolute and unconditional, to pay to
the Holders such Contract Adjustment Payments on the Purchase Contracts
underlying the Units as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of the Company other than
the holders of Senior Indebtedness, nor shall anything herein or
therein prevent the Agent or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this
Agreement, subject to the rights, if any, under these Sections 5.2(e)
30
through (q), of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any
such remedy.
(k) Upon payment or distribution of assets of the Company
referred to in these Sections 5.2(e) through (q), the Agent and the
Holders shall be entitled to rely upon any order or decree made by any
court of competent jurisdiction in which any such dissolution, winding
up, liquidation or reorganization proceeding affecting the affairs of
the Company is pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee or agent or other Person making any payment or
distribution, delivered to the Agent or to the Holders, for the purpose
of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to these Sections 5.2(e) through (q).
(l) The Agent shall be entitled to rely on the delivery
to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee or representative on behalf
of such holder) to establish that such notice has been given by a
holder of Senior Indebtedness or a trustee or representative on behalf
of any such holder or holders. In the event that the Agent determines
in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate
in any payment or distribution pursuant to Sections 5.2(e) through (q),
the Agent may request such Person to furnish evidence to the reasonable
satisfaction of the Agent as to the amount of Senior Indebtedness held
by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts
pertinent to the rights of such Person under Sections 5.2(e) through
(q), and, if such evidence is not furnished, the Agent may defer
payment to such Person pending judicial determination as to the right
of such Person to receive such payment.
(m) Nothing contained in Sections 5.2(e) through (q)
shall affect the obligations of the Company to make, or prevent the
Company from making, payment of the Contract Adjustment Payments,
except as provided in these Sections 5.2(e) through (q).
(n) Each Holder of Units, by his acceptance thereof,
authorizes and directs the Agent on his, her or its behalf to take such
action as may be necessary or appropriate to effectuate the
subordination provided in Sections 5.2(e) through (q) and appoints the
Agent his, her or its attorney-in-fact, as the case may be, for any and
all such purposes.
(o) The Company shall give prompt written notice to the
Agent of any fact known to the Company that would prohibit the making
of any payment of moneys to or by the Agent in respect of the Purchase
Contracts underlying the Units pursuant to the provisions of this
Section 5.2. Notwithstanding the provisions of Sections 5.2(e) through
(q) or any other provisions of this Agreement, the Agent shall not be
charged with knowledge of the existence of any facts that would
prohibit the making of any payment of moneys to or by the Agent, or the
taking of any other action by the Agent, unless and until the Agent
shall have received written notice thereof mailed or delivered to a
Responsible Officer of the Agent from the Company, any Holder, any
paying agent or the holder or representative of any Senior
Indebtedness; provided that, if at least two Business Days prior to the
date upon which by the terms hereof any such moneys may become payable
for any purpose, the Agent shall not have received with respect to such
moneys the notice provided for in this Section 5.2(o), then, anything
herein contained to the contrary notwithstanding, the Agent shall have
full power and authority to receive such moneys and to apply the same
to the purpose for which they were received and shall not be affected
by any notice to the contrary that may be received by it within two
Business Days prior to or on or after such date.
(p) The Agent in its individual capacity shall be
entitled to all the rights set forth in this Section 5.2 with respect
to any Senior Indebtedness at the time held by it, to the same extent
as any other holder of Senior Indebtedness and nothing in this
Agreement shall deprive the Agent of any of its rights as such holder.
31
(q) No right of any present or future holder of any
Senior Indebtedness to enforce the subordination herein shall at any
time or in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any noncompliance by the Company
with the terms, provisions and covenants of this Agreement, regardless
of any knowledge thereof which any such holder may have or be otherwise
charged with.
(r) Nothing in this Section 5.2 shall apply to claims of,
or payments to, the Agent under or pursuant to Section 7.7 hereof.
With respect to the holders of Senior Indebtedness, (i) the duties and
obligations of the Agent shall be determined solely by the express provisions of
this Agreement; (ii) the Agent shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Agreement;
(iii) no implied covenants or obligations shall be read into this Agreement
against the Agent; and (iv) the Agent shall not be deemed to be a fiduciary as
to such holders.
SECTION 5.3 Deferral of Contract Adjustment Payments.
(a) The Company shall have the right, at any time prior
to the Stock Purchase Date, to defer the payment of any or all of the
Contract Adjustment Payments otherwise payable on any Payment Date, but
only if the Company shall give the Holders and the Agent written notice
of its election to defer each such deferred Contract Adjustment Payment
(specifying the amount to be deferred) at least ten Business Days prior
to the earlier of (i) the next succeeding Payment Date or (ii) the date
the Company is required to give notice of the Record Date or Payment
Date with respect to payment of such Contract Adjustment Payments to
the NYSE or other applicable self-regulatory organization or to Holders
of the Units, but in any event not less than one Business Day prior to
such Record Date. Any Contract Adjustment Payments so deferred shall,
to the extent permitted by law, accrue additional Contract Adjustment
Payments thereon at the rate of [__]% per year (computed on the basis
of a 360-day year of twelve 30-day months), compounding on each
succeeding Payment Date, until paid in full (such deferred installments
of Contract Adjustment Payments, if any, together with the additional
Contract Adjustment Payments, if any, accrued thereon, being referred
to herein as the "Deferred Contract Adjustment Payments"). Deferred
Contract Adjustment Payments, if any, shall be due on the next
succeeding Payment Date except to the extent that payment is deferred
pursuant to this Section 5.3. No Contract Adjustment Payments may be
deferred to a date that is after the Settlement Date and no such
deferral period may end other than on a Payment Date. If the Purchase
Contracts are terminated upon the occurrence of a Termination Event,
the Holder's right to receive Contract Adjustment Payments, if any, and
any Deferred Contract Adjustment Payments, will terminate.
(b) In the event that the Company elects to defer the
payment of Contract Adjustment Payments on the Purchase Contracts until
a Payment Date prior to the Stock Purchase Date, then all Deferred
Contract Adjustment Payments, if any, shall be payable to the
registered Holders as of the close of business on the Record Date
immediately preceding such Payment Date.
(c) In the event that the Company elects to defer the
payment of Contract Adjustment Payments on the Purchase Contracts until
the Stock Purchase Date, each Holder will receive on the Stock Purchase
Date in lieu of a cash payment a number of shares of Common Stock (in
addition to a number of shares of Common Stock equal to the Settlement
Rate) equal to (A) the aggregate amount of Deferred Contract Adjustment
Payments payable to such Holder (net of any required tax withholding on
such Deferred Contract Adjustment Payment, which shall be remitted to
the appropriate taxing jurisdiction) divided by (B) the Applicable
Market Value.
(d) No fractional shares of Common Stock will be issued
by the Company with respect to the payment of Deferred Contract
Adjustment Payments on the Stock Purchase Date. In lieu of fractional
shares otherwise issuable with respect to such payment of Deferred
Contract Adjustment Payments, the Holder will be entitled to receive an
amount in cash as provided in Section 5.12.
32
(e) In the event the Company exercises its option to
defer the payment of Contract Adjustment Payments then, until the
earlier of (x) the Termination Date or (y) the date on which the
Deferred Contract Adjustment Payments have been paid, the Company shall
not declare or pay dividends on, make distributions with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect
to, any of the Company's Capital Stock other than:
(i) repurchases, redemptions or acquisitions of
shares of Capital Stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement
with or for the benefit of employees, officers, directors or
agents or a share purchase or dividend reinvestment plan, or
the satisfaction by the Company of its obligations pursuant to
any contract or security outstanding on the date the Company
exercises its right to defer the payment of Contract
Adjustment Payments;
(ii) as a result of a reclassification of the
Company's Capital Stock or the exchange or conversion of one
class or series of the Company's Capital Stock for another
class or series of the Company's Capital Stock;
(iii) the purchase of fractional interests of the
Company's Capital Stock pursuant to the conversion or exchange
provisions of such Capital Stock or the security being
converted or exchanged;
(iv) dividends or distributions in the Company's
Capital Stock (or rights to acquire the Company's Capital
Stock) or repurchases, acquisitions or redemptions of the
Company's Capital Stock in exchange for or out of the net cash
proceeds of the sale of the Company's Capital Stock (or
securities convertible into or exchangeable for shares of the
Company's Capital Stock); or
(v) redemptions, exchanges or repurchases of any
rights outstanding under a shareholder rights plan or the
declaration or payment thereunder of a dividend or
distribution of or with respect to rights in the future, or
the redemption or repurchase of any rights pursuant thereto.
SECTION 5.4 Payment of Purchase Price; Remarketing.
(a) Unless a Special Event Redemption, successful
remarketing of the Notes pursuant to the provisions of this Section 5.4
or Termination Event has occurred, or a Holder of a Unit has settled
the underlying Purchase Contract through an Early Settlement pursuant
to Section 5.9 or a Merger Early Settlement pursuant to Section 5.10,
each Holder of a Normal Unit may pay in cash ("Cash Settlement") the
Purchase Price for the shares of Common Stock to be purchased pursuant
to a Purchase Contract if such Holder notifies the Agent by surrender
of the Normal Unit Certificate and delivery of a notice in
substantially the form of Exhibit E hereto of its intention to make a
Cash Settlement. Such notice shall be made on or prior to 5:00 p.m.,
New York City time, on the seventh Business Day immediately preceding
the Stock Purchase Date. The Agent shall promptly notify the Collateral
Agent of the receipt of such a notice from a Holder intending to make a
Cash Settlement.
(i) A Holder of a Normal Unit who has so
notified the Agent of its intention to make a Cash Settlement
is required to pay the Purchase Price to the Collateral Agent
prior to 11:00 a.m., New York City time, on the Business Day
immediately preceding the Stock Purchase Date in lawful money
of the United States by certified or cashier's check or wire
transfer, in each case in immediately available funds payable
to or upon the order of the Company. Any cash received by the
Collateral Agent will be paid to the Company on the Stock
Purchase Date in settlement of the Purchase Contract in
accordance with the terms of this Agreement and the Pledge
Agreement.
(ii) If a Holder of a Normal Unit fails to notify
the Agent of its intention to make a Cash Settlement in
accordance with paragraph (a)(i) above, the Holder shall be
deemed to have
33
consented to the disposition of the Pledged Notes pursuant to
the remarketing as described in paragraph (b) below. If a
Holder of a Normal Unit does notify the Agent as provided in
paragraph (a)(i) above of its intention to pay the Purchase
Price in cash, but fails to make such payment as required by
paragraph (a)(i) above, such failure shall constitute an event
of default; however, the Notes of such a Holder will not be
remarketed but instead the Collateral Agent, for the benefit
of the Company, will exercise its rights as a secured party
with respect to such Notes, including but not limited to those
rights specified in subsection (b)(iii) below.
(b) (i) Unless a Special Event Redemption has occurred,
the Company shall engage, no later than 30 days prior to the
Remarketing Date, a nationally recognized investment bank (the
"Remarketing Agent") pursuant to a Remarketing Agreement to be mutually
agreed on by the Company, the Agent and the Remarketing Agent, but
providing for remarketing procedures substantially as set forth below
to sell the Notes of Holders of Normal Units, other than Holders that
have elected not to participate in the remarketing pursuant to the
procedures set forth in clause (iv) below, and holders of Separate
Notes that have elected to participate in the remarketing pursuant to
the procedures set forth in Section 4.5(d) of the Pledge Agreement. On
the seventh Business Day prior to the first day of each Remarketing
Period, the Agent shall give Holders of Normal Units and holders of
Separate Notes notice of the remarketing 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 Normal Units that elect not to participate in
the remarketing and the deadline for such delivery. The Company or the
Agent, at the Company's request, shall request not later than seven nor
more than 15 calendar days prior to any Remarketing Period, that the
Clearing Agency notify the Clearing Agency participants of such
Remarketing Period. The Agent shall notify, by 10:00 a.m., New York
City time, on the third Business Day preceding the first day of such
Remarketing Period, the Remarketing Agent and the Collateral Agent of
the aggregate principal amount of Notes of Normal Unit Holders to be
remarketed. On the third Business Day preceding the first day of such
Remarketing Period, no later than by 10:00 a.m., New York City time,
pursuant to the terms of the Pledge Agreement, the Custodial Agent will
notify the Remarketing Agent of the aggregate principal amount of
Separate Notes to be remarketed. No later than 10:00 a.m., New York
City time, on the Business Day immediately preceding the first day of
such Remarketing Period, the Collateral Agent and the Custodial Agent,
pursuant to the terms of the Pledge Agreement, will deliver for
remarketing to the Remarketing Agent all Notes to be remarketed. Upon
receipt of such notice from the Agent and the Custodial Agent and such
Notes from the Collateral Agent and the Custodial Agent, the
Remarketing Agent will, on the Remarketing Date (and any Subsequent
Remarketing Date), use its commercially reasonable best efforts to sell
such Notes on such date at an aggregate price equal to at least [___]%
of the Remarketing Value. The sale of the Notes will be settled on or
prior to the third Business Day following the Remarketing Date or any
Subsequent Remarketing Date on which the Notes were successfully
remarketed. The Remarketing Agent will use the proceeds from a
successful remarketing to purchase the appropriate U.S. Treasury
securities (the "Agent-purchased Treasury Consideration") with the
CUSIP numbers, if any, selected by the Remarketing Agent, described in
clauses (i)(1) and (ii)(1) of the definition of Remarketing Value
related to the Notes of Holders of Normal Units that were remarketed.
On or prior to the third Business Day following the Remarketing Date or
any Subsequent Remarketing Date on which the Notes are successfully
remarketed, the Remarketing Agent shall deliver such Agent-purchased
Treasury Consideration to the Agent, which shall thereupon deliver such
Agent-purchased Treasury Consideration to the Collateral Agent. The
Collateral Agent, for the benefit of the Company, will thereupon apply
such Agent-purchased Treasury Consideration, in accordance with the
Pledge Agreement, to secure such Holders' obligations under the
Purchase Contracts. In the event of a successful remarketing pursuant
to this Section 5.4, the Remarketing Agent will deduct as a remarketing
fee after allowing for the aggregate purchase price of the
Agent-purchased Treasury Consideration an amount not exceeding [__]
basis points ([__]%) of the Remarketing Value (the "Remarketing Fee").
The Remarketing Agent will remit (1) the portion of the proceeds from
the remarketing attributable to the Separate Notes to the holders of
Separate Notes that were remarketed and (2) the remaining portion of
the proceeds, less those proceeds used to purchase the Agent-purchased
Treasury Consideration, to the Agent for the benefit of the Holders of
the Normal Units that were remarketed, all determined on a pro rata
basis, in each case, on or prior to the third Business Day following
the Remarketing Date or any Subsequent Remarketing Date on which the
Notes were successfully remarketed. Holders whose Notes are so
remarketed will not otherwise be responsible for the payment of any
Remarketing Fee in connection therewith.
34
(ii) If, in spite of using its commercially
reasonable best efforts, the Remarketing Agent cannot remarket
the Notes included in the remarketing at a price equal to at
least [___]% of the Remarketing Value on the Remarketing Date,
the Remarketing Agent will attempt to establish a Remarketing
Rate meeting these requirements on each of the two immediately
following Business Days. If the Remarketing Agent cannot
establish a Remarketing Rate meeting these requirements on any
day during a Remarketing Period, the remarketing in such
Remarketing Period will be deemed to have failed (a "Failed
Remarketing"). In the event of a Failed Remarketing with
respect to the first Remarketing Period, the Remarketing Agent
will undertake the procedures set forth in clause (i) above on
each of the three Business Days in the second Remarketing
Period. In the event of a Failed Remarketing in the second
Remarketing Period, the Remarketing Agent will further attempt
to establish such a Remarketing Rate on the third Business Day
immediately preceding the Stock Purchase Date. If, in spite of
using its commercially reasonable best efforts, the
Remarketing Agent fails to remarket the Notes underlying the
Normal Units at a price equal to at least [___]% of the
Remarketing Value in accordance with the terms of the Pledge
Agreement by 4:00 p.m., New York City time, on the third
Business Day immediately preceding the Stock Purchase Date,
the "Last Failed Remarketing" will be deemed to have occurred.
Each remarketing attempt that takes place in accordance with
this Section 5.4 after the Remarketing Date is referred to
herein as a "Subsequent Remarketing." Within three Business
Days following the date of a Failed Remarketing or the Last
Failed Remarketing, as the case may be, the Remarketing Agent
shall return any Notes delivered to it to the Collateral Agent
and the Custodial Agent, as applicable. The Collateral Agent,
for the benefit of the Company, may exercise its rights as a
secured party with respect to such Notes, including those
actions specified in (b) (iii) below; provided that if upon
the Last Failed Remarketing, the Collateral Agent exercises
such rights for the benefit of the Company with respect to
such Notes, any accumulated and unpaid interest on such Notes
will become payable by the Company to the Agent for payment to
the Holders of the Normal Units to which such Notes relate.
Such payment will be made by the Company on or prior to 11:00
a.m., New York City time, on the Stock Purchase Date in lawful
money of the United States by certified or cashier's check or
wire transfer in immediately available funds payable to or
upon the order of the Agent. The Company will cause a notice
of any Failed Remarketing and of the Last Failed Remarketing
to be published on the fourth Business Day following each
Failed Remarketing and the Last Failed Remarketing, as the
case may be, in a daily newspaper in the English language of
general circulation in The City of New York, which shall be
The Wall Street Journal, if such newspaper is then so
published. The Company will also release this information by
means of Bloomberg and Reuters newswire (or any successor or
equivalent of such newswires).
(iii) With respect to any Notes which constitute
part of Normal Units which are subject to the Last Failed
Remarketing, the Collateral Agent for the benefit of the
Company reserves all of its rights as a secured party with
respect thereto and, subject to applicable law and Section 5.4
(e) below, may, among other things, (A) retain such Notes in
full satisfaction of the Holders' obligations under the
Purchase Contracts or (B) sell such Notes in one or more
public or private sales or otherwise.
(iv) A Holder of Normal Units may elect not to
participate in the remarketing and retain the Notes underlying
such Units by notifying the Agent of such election and
delivering the specific U.S. Treasury security or securities
(including the CUSIP number and/or the principal terms of such
security or securities) identified by the Agent (as having
been based solely on the identification that the Remarketing
Agent shall have advised the Agent) that constitute the U.S.
Treasury securities described in clauses (i) and (ii) of the
definition of Remarketing Value relating to the retained Notes
(as if only such Notes were being remarketed) (the "Opt-out
Treasury Consideration") to the Agent not later than 10:00
a.m., New York City time, on the fourth Business Day prior to
the first day of any Remarketing Period. Upon receipt thereof
by the Agent, the Agent shall deliver such Opt-out Treasury
Consideration to the Collateral Agent, which will, for the
benefit of the Company, thereupon apply such Opt-out Treasury
Consideration to secure such Holder's obligations under the
Purchase Contracts. On the Business Day immediately preceding
the first day of a Remarketing Period, the Collateral Agent,
pursuant to the terms of the
35
Pledge Agreement, will deliver the Pledged Notes of such
Holder to the Agent. Within three Business Days following the
last day of such Remarketing Period, (A) if the remarketing
was successful, the Agent shall distribute such Notes to the
Holders thereof, and (B) if there was a Failed Remarketing on
such date, the Agent will deliver such Notes to the Collateral
Agent, which will, for the benefit of the Company, thereupon
apply such Notes to secure such Holders' obligations under the
Purchase Contract and return the Opt-out Treasury
Consideration delivered by such Holders to such Holders. A
Holder that does not so deliver the Opt-out Treasury
Consideration or does not so notify the agent of its election
not to participate in the remarketing pursuant to this clause
(iv) shall be deemed to have elected to participate in the
remarketing.
(c) Upon the maturity of the Pledged Treasury Securities
underlying the Stripped Units and, in the event of a successful
remarketing or a Special Event Redemption, the Pledged Treasury
Consideration underlying the Normal Units on the Stock Purchase Date,
the Collateral Agent shall remit to the Company an amount equal to the
aggregate Purchase Price applicable to such Units, as payment for the
shares of Common Stock issuable upon settlement thereof without needing
to receive any instructions from the Holders of such Units. In the
event the payments in respect of the Pledged Treasury Securities or the
Pledged Treasury Consideration underlying a Unit is in excess of the
Purchase Price of the Purchase Contract being settled thereby, the
Collateral Agent will distribute such excess to the Agent for the
benefit of the Holder of such Unit when received.
(d) Any distribution to Holders of excess funds and
interest described in Section 5.4 (b) and (c) above shall be payable at
the Corporate Trust Office or, at the option of the Holder or the
holder of Separate Notes, as applicable, by check mailed to the address
of the Person entitled thereto at such address as it appears on the
Register or by wire transfer to an account maintained in the United
States specified by the Holder or the holder of Separate Notes, as
applicable.
(e) Notwithstanding anything to the contrary herein or in
the Pledge Agreement, subject to Section 3.2 of the Pledge Agreement,
the obligations of each Holder to pay the Purchase Price are
non-recourse obligations and are payable solely out of the proceeds of
any Collateral pledged to secure the obligations of the Holders (except
to the extent paid by Cash Settlement, Early Settlement or Merger Early
Settlement) and in no event will Holders be liable for any deficiency
between such payments and the Purchase Price.
(f) Notwithstanding anything to the contrary herein, 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 of the related Unit unless the Company shall have (i)
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 or (ii) become entitled to exercise its rights as a
secured party under Section 5.4(b)(iii).
SECTION 5.5 Issuance of Shares of Common Stock.
Unless a Termination Event shall have occurred on or prior to
the Stock Purchase Date or an Early Settlement or a Merger Early Settlement
shall have occurred, on the Stock Purchase Date, upon the Company's receipt of
payment in full of the Purchase Price for the shares of Common Stock purchased
by the Holders pursuant to the foregoing provisions of this Article and subject
to Section 5.6(b) or the Company's exercise of its rights as a secured party
pursuant to Section 5.4(b)(iii), the Company shall issue and deposit with the
Agent, for the benefit of the Holders of the Outstanding Units, one or more
certificates representing the newly issued shares of Common Stock, registered in
the name of the Agent (or its nominee) as custodian for the Holders (such
certificates for shares of Common Stock, together with any dividends or
distributions for which both a record date and payment date for such dividend or
distribution has occurred after the Stock Purchase Date, being hereinafter
referred to as the "Purchase Contract Settlement Fund"), to which the Holders
are entitled hereunder. Subject to the foregoing, upon surrender of a
Certificate to the Agent on or after the Stock Purchase Date, together with
settlement instructions thereon duly completed and executed, the Holder of such
Certificate shall be entitled to receive in exchange therefor a certificate
representing that number of whole shares of Common Stock which such Holder is
entitled to receive pursuant to the provisions of this Article V (after taking
into account all Units then held by such Holder) together with cash in lieu of
fractional shares as provided in Section 5.12 and any dividends or distributions
with respect to
36
such shares constituting part of the Purchase Contract Settlement Fund, but
without any interest thereon, and the Certificate so surrendered shall forthwith
be cancelled. Such shares shall be registered in the name of the Holder or the
Holder's designee as specified in the settlement instructions provided by the
Holder to the Agent. If any shares of Common Stock issued in respect of a
Purchase Contract are to be registered to a Person other than the Person in
whose name the Certificate evidencing such Purchase Contract is registered, no
such registration shall be made unless the Person requesting such registration
has paid any transfer and other taxes required by reason of such registration in
a name other than that of the registered Holder of such Certificate or has
established to the satisfaction of the Company that such tax either has been
paid or is not payable.
SECTION 5.6 Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock
Splits, Etc.
(1) Stock Dividends. In case the Company shall
pay or make a dividend or other distribution on the Common
Stock in shares of Common Stock, the Settlement Rate, as 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 the
numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for
such determination and the denominator shall be the sum of
such number of shares of Common Stock and the total number of
shares of Common Stock constituting such dividend or other
distribution, such increase to become effective immediately
after the opening of business on the day following the date
fixed for such determination. For the purposes of this
paragraph (1), the number of shares of Common Stock at the
time outstanding shall not include shares held in the treasury
of the Company but shall include any shares issuable in
respect of any scrip certificates issued in lieu of fractions
of shares of Common Stock. The Company will not pay any
dividend or make any distribution on Common Stock held in the
treasury of the Company.
(2) Stock Purchase Rights. In case the Company
shall issue rights, options or warrants to all holders of its
Common Stock (that are not available on an equivalent basis to
Holders of the Units upon settlement of the Purchase Contracts
underlying such Units) entitling them, for a period expiring
within 45 days after the record date for the determination of
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,
share purchase or similar 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, the numerator of which shall be
the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the
number of shares of Common Stock which the aggregate of the
offering price of the total number of shares of Common Stock
so offered for subscription or purchase would purchase at such
Current Market Price per share of Common Stock and the
denominator of which shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common
Stock so offered for subscription or purchase, such increase
to become effective immediately after the opening of business
on the day following the date fixed for such determination.
For the purposes of this paragraph (2), the number of shares
of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include
any shares issuable in respect of any scrip certificates
issued in lieu of fractions of shares of Common Stock. The
Company shall not issue any such rights, options or warrants
in respect of Common Stock held in the treasury of the
Company.
(3) Stock Splits; Reverse Splits. In case
outstanding shares of Common Stock shall be subdivided or
split into a greater number of shares of Common Stock, the
Settlement Rate 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
37
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) Debt or Asset Distributions. (i) In case the
Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidences of its indebtedness or
assets (including securities, but excluding any rights or
warrants referred to in paragraph (2) of this Section 5.6(a),
shares of capital stock of any class or series, or similar
equity interests, of or relating to a subsidiary or other
business unit in the case of a Spin-Off referred to in the
next paragraph, or 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, the numerator of which 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 filed
with the Agent) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of Common
Stock and the denominator of which 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.
(ii) In the case of a Spin-Off, the Settlement Rate
in effect immediately before the close of business on the
record date fixed for determination of shareholders entitled
to receive that distribution will be increased by multiplying
the Settlement Rate by a fraction, the numerator of which is
the Current Market Price per share of Common Stock plus the
Fair Market Value of the portion of those shares of Capital
Stock or similar equity interests so distributed applicable to
one share of Common Stock and the denominator of which is the
Current Market Price per share of Common Stock. Any adjustment
to the settlement rate under this paragraph 4(ii) will occur
on the date that is the earlier of (1) the tenth Trading Day
following the effective date of the Spin-Off and (2) the date
of the securities being offered in the Initial Public Offering
of the Spin-Off, if that Initial Public Offering is effected
simultaneously with the Spin-Off.
(5) Cash Distributions. In case the Company
shall, (i) by dividend (other than regular quarterly,
semi-annual or annual cash dividends) or otherwise, distribute
to all holders of its Common Stock cash (excluding any cash
that is distributed in a Reorganization Event to which Section
5.6(b) applies or as part of a distribution referred to in
paragraph (4) of this Section 5.6(a)) in an aggregate amount
that, combined together with (ii) the aggregate amount of any
other distributions to all holders of its Common Stock made
exclusively in cash (other than regular quarterly, semi-annual
or annual cash dividends) 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 (iii) the aggregate
of any cash plus the fair market value as of the date or
expiration of the tender or exchange offer referred to below
(as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution filed
with the Agent) of consideration payable in respect of any
tender or exchange offer (other than consideration payable in
respect of any odd-lot tender offer) by the Company or any of
its subsidiaries for all or any portion of the Common Stock
concluded within the 12 months preceding the date of payment
of the distribution described in clause (i) above and in
respect of which no adjustment pursuant to this paragraph (5)
or paragraph (6) of this Section 5.6(a) has been made, exceeds
[__]% of the product of the Current Market Price per share of
Common Stock on the date for the determination of holders of
Common Stock entitled to receive such distribution times the
number of Common Stock outstanding on such date, then, and in
each
38
such case, immediately after the close of business on the
fifth Trading Day following such date for determination, the
Settlement Rate shall be increased so that the same shall
equal the rate determined by multiplying 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 (A) the numerator of
which shall be equal to the Current Market Price per share of
the Common Stock plus an amount equal to the quotient of (x)
the combined amount distributed or payable in the transactions
described in clauses (i), (ii) and (iii) of this paragraph (5)
and (y) the number of shares of Common Stock outstanding on
such date for determination and (B) the denominator of which
shall be equal to the Current Market Price per share of the
Common Stock. Such increase in the Settlement Rate shall be
given effect retroactively as of the opening of business on
the "ex date."
(6) Tender Offers. In case (i) a tender or
exchange offer made by the Company or any subsidiary of the
Company for all or any portion of the Common Stock shall
expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to shareholders
(based on the acceptance (up to any maximum specified in the
terms of the tender or exchange offer) of Purchased Shares) of
an aggregate consideration having a fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution filed
with the Agent) that when combined together with (ii) the
aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution filed
with the Agent), as of the expiration of such tender or
exchange offer (other than consideration payable in respect of
any odd-lot tender 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 (iii) the aggregate
amount of any distributions to all holders of the Common Stock
made exclusively in cash (other than regular quarterly,
semi-annual or annual cash dividends) 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 [__]% 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 after the close of business on the fifth Trading
Day after the date of the Expiration Time, the Settlement Rate
shall be adjusted so that the same shall equal the rate
determined by multiplying the Settlement Rate immediately
prior to the close of business on the date of the Expiration
Time by a fraction (A) the numerator of which shall be equal
to (x) the product of (I) the Current Market Price per share
of the Common Stock and (II) the number of shares of Common
Stock outstanding (excluding any tendered shares) on the fifth
Trading Day following the date of the Expiration Time plus (y)
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), (ii) and (iii) of this paragraph (6) (assuming in the
case of clause (i) the acceptance, up to any maximum specified
in the terms of the tender or exchange offer, of Purchased
Shares), and (B) the denominator of which shall be equal to
the product of (x) the Current Market Price per share of the
Common Stock and (y) the number of shares of Common Stock
outstanding on the fifth Trading Day following the date of the
Expiration Time plus 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"). Such increase in the Settlement Rate
shall be given effect retroactively as of the close of
business on the date of the Expiration Time.
(7) Reclassification. The reclassification of
Common Stock into securities including securities other than
Common Stock (other than any reclassification upon a
Reorganization Event to which Section 5.6(b) applies) shall be
deemed to involve (i) a distribution of such securities other
than Common Stock to all holders of Common Stock (and the
effective date of such reclassification shall be deemed to be
"the date fixed for the determination of
39
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 (ii) a subdivision,
split or combination, as the case may be, of the number of
shares of Common Stock outstanding immediately prior to such
reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon
which such subdivision or split becomes effective" or "the day
upon which such combination becomes effective," as the case
may be, and "the day upon which such subdivision, split or
combination becomes effective" within the meaning of paragraph
(3) of this Section 5.6(a)).
(8) "Current Market Price". The "Current Market
Price" per share of Common Stock means (a) except as provided
in clauses (b) through (e) of this paragraph (8), for purposes
of paragraphs (2), (4), (5) and (6) of this Section 5.6(a), on
any day the average of the Closing Price per share of Common
Stock on each of the five consecutive Trading Days ending on
the earlier of the day in question and the day before the "ex
date" with respect to the issuance or distribution requiring
such computation, (b) for purposes of subclauses (A) and (B)
of paragraph (5) of this Section 5.6(a), the average of the
Closing Price per share of Common Stock on each of the five
consecutive Trading Days commencing on the "ex date" with
respect to the distribution requiring such computation, (c)
for purposes of subclauses (A) and (B) of paragraph (6) of
this Section 5.6(a), the average of the Closing Price per
share of Common Stock on each of the five consecutive Trading
Days immediately following the date of the Expiration Time,
(d) in the case of any Spin-Off that is effected
simultaneously with an Initial Public Offering of the
securities being distributed in the Spin-Off, the Closing
Price of the Common Stock on the Trading Day on which the
initial price of the securities being distributed in the
Spin-Off is determined, and (e) in the case of any other
Spin-Off, the average of the Closing Prices per share of
Common Stock over the first 10 Trading Days after the
effective date of such Spin-Off. For purposes of this
paragraph and the last sentence of paragraph (6) of this
Section 5.6(a), the term "ex date," when used with respect to
any issuance or distribution, shall mean the first date on
which the Common Stock trades regular way on such exchange or
in such market without the right to receive such issuance or
distribution.
(9) Calculation of Adjustments. All adjustments
to the Settlement Rate shall be calculated to the nearest
1/10,000th of a share of Common Stock (or if there is not a
nearest 1/10,000th of a share to the next lower 1/10,000th of
a share). No adjustment in the Settlement Rate shall be
required unless such adjustment would require an increase or
decrease of at least one percent therein; provided 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) through (7)
or (10) of this Section 5.6(a), an adjustment shall also be
made to the Applicable Market Value solely to determine which
of clauses (i), (ii) or (iii) of the definition of Settlement
Rate in Section 5.1(a) will apply on the Stock Purchase Date.
Such adjustment shall be made by multiplying the Applicable
Market Value by a fraction, the numerator of which shall be
the Settlement Rate immediately after such adjustment pursuant
to paragraph (1) through (7) or (10) of this Section 5.6(a)
and the denominator of which shall be the Settlement Rate
immediately before such adjustment; provided 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) through (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) Increase of Settlement Rate. The Company may
make such increases in the Settlement Rate, in addition to
those required by this Section, as it considers to be
advisable in order to avoid or diminish any income tax to any
holders of shares of Common Stock resulting from any dividend
or distribution of Capital Stock or issuance of rights or
warrants to purchase or subscribe for stock or from any event
treated as such for income tax purposes or for any other
reasons.
40
(b) Adjustment for Consolidation, Merger or Other
Reorganization Event.
In the event of
(1) any consolidation or merger of the Company
with or into another Person (other than a merger or
consolidation in which the Company is the continuing
corporation and in which the 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),
(2) any sale, transfer, lease or conveyance to
another Person of the property of the Company as an entirety
or substantially as an entirety,
(3) any statutory exchange of securities of the
Company with another Person (other than in connection with a
merger or acquisition), or
(4) any liquidation, dissolution or winding up
of the Company other than as a result of or after the
occurrence of a Termination Event (any such event, a
"Reorganization Event"),
each share of Common Stock covered by each Purchase Contract forming part of a
Unit immediately prior to such Reorganization Event shall, after such
Reorganization Event, be converted for purposes of the Purchase Contract into
the kind and amount of securities, cash and other property receivable in such
Reorganization Event (without any interest thereon, and without any right to
dividends or distribution thereon which have a record date that is prior to the
Stock Purchase Date) per share of Common Stock by a holder of Common Stock that
(i) is not a Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be (any such Person, a "Constituent Person"),
or an Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of shares of Common Stock held by Affiliates of
the Company and non-Affiliates, and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such Reorganization Event (provided that if the kind or
amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by a Person 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 of Common
Stock by a plurality of the Non-electing Shares). On the Stock Purchase Date,
the Settlement Rate then in effect will be applied to the value on the Stock
Purchase Date of such securities, cash or other property.
In the event of such a Reorganization Event, the Person formed
by such consolidation, merger or exchange or the Person which acquires the
assets of the Company or, in the event of a liquidation or dissolution of the
Company, the Company or a liquidating trust created in connection therewith,
shall execute and deliver to the Agent an agreement supplemental hereto
providing that the Holder of each Outstanding Unit shall have the rights
provided by this Section 5.6. Such supplemental agreement shall provide for
adjustments which, for events subsequent to the effective date of such
supplemental agreement, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section. The above provisions of this
Section shall similarly apply to successive Reorganization Events.
SECTION 5.7 Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein
provided, the Company shall:
(i) forthwith compute the Settlement Rate in
accordance with Section 5.6 and prepare and transmit to the
Agent an Officers' Certificate setting forth the Settlement
Rate, the method of calculation thereof in reasonable detail,
and the facts requiring such adjustment and upon which such
adjustment is based; and
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(ii) as soon as practicable following the
occurrence of an event that requires an adjustment to the
Settlement Rate pursuant to Section 5.6 (or if the Company is
not aware of such occurrence, as soon as practicable after
becoming so aware), provide a written notice to the Agent of
the occurrence of such event and a statement setting forth in
reasonable detail the method by which the adjustment to the
Settlement Rate was determined and setting forth the adjusted
Settlement Rate.
(b) The Agent shall not at any time be under any duty or
responsibility to any Holder of Units to determine whether any facts
exist which may require any adjustment of the Settlement Rate, or with
respect to the nature or extent or calculation of any such adjustment
when made, or with respect to the method employed in making the same.
The Agent shall not be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common Stock, or of any
securities or property, which may at the time be issued or delivered
with respect to any Purchase Contract, and the Agent makes no
representation with respect thereto. The Agent shall not be responsible
for any failure of the Company to issue, transfer or deliver any shares
of Common Stock pursuant to a Purchase Contract or to comply with any
of the duties, responsibilities or covenants of the Company contained
in this Article.
SECTION 5.8 Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights of
Holders to receive Contract Adjustment Payments, if any, or any Deferred
Contract Adjustment Payments 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 Agent or the Company, if,
on or prior to the Stock Purchase Date, a Termination Event shall have occurred.
Upon and after the occurrence of a Termination Event, the Normal Units shall
thereafter represent the right to receive the Notes or the appropriate Treasury
Consideration, as the case may be, forming a part of such Normal Units, and the
Stripped Units shall thereafter represent the right to receive the Treasury
Securities forming a part of such Stripped Units, in each case in accordance
with the provisions of Section 4.3 of the Pledge Agreement. Upon the occurrence
of a Termination Event, the Company shall promptly but in no event later than
two Business Days thereafter give written notice to the Agent, the Collateral
Agent and to the Holders, at their addresses as they appear in the Register.
SECTION 5.9 Early Settlement.
(a) Subject to and upon compliance with the provisions of
this Section 5.9, Purchase Contracts underlying Units having an
aggregate Stated Amount equal to $[____] or an integral multiple
thereof may, at the option of the Holder thereof, be settled early
("Early Settlement") on or prior to 10:00 a.m., New York City time, on
the seventh Business Day immediately preceding the Stock Purchase Date.
Holders of Stripped Units may only effect Early Settlement of the
related Purchase Contracts in integral multiples of [__] Stripped
Units, and if Treasury Consideration has been substituted for the Notes
as a component in the Normal Units due to a successful remarketing of
the Notes pursuant to the provisions of Section 5.4 or the occurrence
of a Special Event Redemption, Purchase Contracts underlying such
Normal Units may only be settled early in integral multiples of Normal
Units such that the Treasury Consideration to be deposited and the
Treasury Consideration to be released are in integral multiples of
$[____]. In order to exercise the right to effect Early Settlement with
respect to any Purchase Contracts, the Holder of the Certificate
evidencing the related Units shall deliver such Certificate to the
Agent at the Corporate Trust Office duly endorsed for transfer to the
Company or in blank with the form of Election to Settle Early on the
reverse thereof duly completed and accompanied by payment payable to
the Company in immediately available funds in an amount (the "Early
Settlement Amount") equal to (A) the product of (i) the Purchase Price
multiplied by (ii) the number of Purchase Contracts with respect to
which the Holder has elected to effect Early Settlement, plus (B) if
such delivery is made with respect to any Purchase Contracts during the
period from the close of business on any Record Date next preceding any
Payment Date to the opening of business on such Payment Date, an amount
equal to the Contract Adjustment Payments, if any, payable on such
Payment Date with respect to such Purchase Contracts; provided that no
payment shall be required pursuant to clause (B) of this sentence if
the Company shall have elected to defer the Contract Adjustment
Payments which would otherwise be payable on such Payment Date. Except
as provided in the immediately preceding sentence and subject to
Section 5.2(d), no payment or adjustment shall be made
42
upon Early Settlement of any Purchase Contract on any Contract
Adjustment Payments accrued on such Purchase Contract or on account of
any dividends on the shares of Common Stock issued upon such Early
Settlement. If the foregoing requirements are first satisfied with
respect to Purchase Contracts underlying any Unit 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 Unit 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 Units shall be the next
succeeding Business Day.
(b) Upon Early Settlement of any Purchase Contract by the
Holder of the related Units, the Company shall issue, and the Holder
shall be entitled to receive, [____] shares of Common Stock on account
of such 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 pursuant to Section 5.6. As
promptly as practicable after Early Settlement of Purchase Contracts in
accordance with the provisions of this Section 5.9, the Company shall
issue and shall deliver to the Agent at the Corporate Trust Office a
certificate or certificates for the full number of shares of Common
Stock issuable upon such Early Settlement together with payment in lieu
of any fraction of a share, as provided in Section 5.12.
(c) No later than the third Business Day after the
applicable Early Settlement Date the Company shall cause (i) the shares
of Common Stock issuable upon Early Settlement of Purchase Contracts to
be issued and delivered, and (ii) the related Pledged Notes or Pledged
Treasury Consideration, in the case of Normal Units, or the related
Pledged Treasury Securities, in the case of Stripped Units, to be
released from the Pledge by the Collateral Agent and transferred, in
each case, to the Agent for delivery to the Holder thereof or the
Holder's designee.
(d) Upon Early Settlement of any Purchase Contracts, and
subject to receipt of shares of Common Stock from the Company and the
Pledged Notes, Pledged Treasury Consideration or Pledged Treasury
Securities, as the case may be, from the Collateral Agent, as
applicable, the Agent shall, in accordance with the instructions
provided by the Holder thereof on the applicable form of Election to
Settle Early on the reverse of the Certificate evidencing the related
Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury
Consideration or Pledged Treasury Securities, as the case may be,
forming a part of such Units, and (ii) deliver to the Holder a
certificate or certificates for the full number of shares of Common
Stock issuable upon such Early Settlement together with payment in lieu
of any fraction of a share, as provided in Section 5.12.
(e) In the event that Early Settlement is effected with
respect to Purchase Contracts underlying less than all the Units
evidenced by a Certificate, upon such Early Settlement the Company
shall execute and the Agent shall authenticate, execute on behalf of
the Holder and deliver to the Holder thereof, at the expense of the
Company, a Certificate evidencing the Units as to which Early
Settlement was not effected.
(f) No Early Settlement will be permitted under this
Section 5.9 unless, at the time of delivery of the Election to Settle
Early form or the time the Early Settlement is effected, there is an
effective registration statement with respect to the shares of Common
Stock to be issued and delivered in connection with such Early
Settlement, if such a registration statement is required (in the view
of counsel, which need not be in the form of a written opinion, for
either the Company or the Agent) under the Securities Act. If such a
registration statement is so required, the Company covenants and agrees
to use its commercially reasonable efforts to (A) have in effect a
registration statement covering the shares of Common Stock to be
delivered in respect of the Purchase Contracts being settled and (B)
provide a prospectus in connection therewith, in each case in a form
that the Agent may use in connection with such Early Settlement.
SECTION 5.10 Early Settlement Upon Cash Merger.
(a) In the event of a merger or consolidation of the
Company of the type described in clause (1) of Section 5.6(b) in which
the shares of Common Stock outstanding immediately prior to such merger
or consolidation are exchanged for consideration consisting of at least
30% cash or cash equivalents (any
43
such event a "Cash Merger"), then the Company (or the successor to the
Company hereunder) shall be required to offer the Holder of each Unit
the right to settle the Purchase Contract underlying such Unit prior to
the Stock Purchase Date ("Merger Early Settlement") as provided herein.
On or before the fifth Business Day after the consummation of a Cash
Merger, the Company or, at the request and expense of the Company, the
Agent, shall give all Holders notice of the occurrence of the Cash
Merger and of the right of Merger Early Settlement arising as a result
thereof. The Company shall also deliver a copy of such notice to the
Agent and the Collateral Agent.
Each such notice shall contain:
(i) the date, which shall be not less than 20
nor more than 30 calendar days after the date of such notice,
on which the Merger Early Settlement will be effected (the
"Merger Early Settlement Date");
(ii) the date, which shall be on or one Business
Day prior to the Merger Early Settlement Date, by which the
Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of
such Cash Merger and the kind and amount of securities, cash
and other property receivable by the Holder upon settlement of
each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a
portion of the Purchase Price payable by the Holder to settle
the Purchase Contract will be offset against the amount of
cash so receivable upon exercise of Merger Early Settlement,
as applicable; and
(v) the instructions a Holder must follow to
exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder
shall deliver to the Agent at the Corporate Trust Office on or before
5:00 p.m., New York City time, on the date specified in the notice the
Certificate(s) evidencing the Units with respect to which the Merger
Early Settlement right is being exercised duly endorsed for transfer to
the Company or in blank with the form of Election to Settle Early on
the reverse thereof duly completed and accompanied by payment payable
to the Company in immediately available funds in an amount equal to the
Early Settlement Amount less the amount of cash that otherwise would be
deliverable by the Company or its successor upon settlement of the
Purchase Contract in lieu of shares of Common Stock pursuant to Section
5.6(b) and as described in the notice to Holders (the "Merger Early
Settlement Amount").
(c) On the Merger Early Settlement Date, the Company
shall deliver or cause to be delivered (i) the net cash, securities and
other property to be received by such exercising Holder, equal to the
Settlement Rate as adjusted pursuant to Section 5.6, in respect of the
number of Purchase Contracts for which such Merger Early Settlement
right was exercised, and (ii) the related Pledged Notes or Pledged
Treasury Consideration, in the case of Normal Units, or Pledged
Treasury Securities, in the case of Stripped Units, to be released from
the Pledge by the Collateral Agent and transferred, in each case, to
the Corporate Trust Office for delivery to the Holder thereof or its
designee. In the event a Merger Early Settlement right shall be
exercised by a Holder in accordance with the terms hereof, all
references herein to Stock Purchase Date shall be deemed to refer to
such Merger Early Settlement Date.
(d) Upon Merger Early Settlement of any Purchase
Contracts, and subject to receipt of such net cash, securities or other
property from the Company and the Pledged Notes, Pledged Treasury
Consideration or Pledged Treasury Securities, as the case may be, from
the Collateral Agent, as applicable, the Agent shall, in accordance
with the instructions provided by the Holder thereof on the applicable
form of Election to Settle Early on the reverse of the Certificate
evidencing the related Units, (i) transfer to the Holder the Pledged
Notes, Pledged Treasury Consideration or Pledged Treasury Securities,
as the case may be, forming a part of such Units, and (ii) deliver to
the Holder such net cash, securities or other property
44
issuable upon such Merger Early Settlement together with payment in
lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected
with respect to Purchase Contracts underlying less than all the Units
evidenced by a Certificate, upon such Merger Early Settlement the
Company (or the successor to the Company hereunder) shall execute and
the Agent shall authenticate, execute on behalf of the Holder and
deliver to the Holder thereof, at the expense of the Company, a
Certificate evidencing the Units as to which Merger Early Settlement
was not effected.
SECTION 5.11 Charges and Taxes.
The Company will pay all stock transfer and similar taxes
attributable to the initial issuance and delivery of the shares of Common Stock
pursuant to the Purchase Contracts and in payment of any Deferred Contract
Adjustment Payments; provided that the Company shall not be required to pay any
such tax or taxes which may be payable in respect of any exchange of or
substitution for a Certificate evidencing a Unit 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 Units evidenced thereby, other than in the name of
the Agent, as custodian for such Holder, and the Company shall not be required
to issue or deliver such Certificate or share of Common Stock unless and until
the Person or Persons requesting the transfer or issuance thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
SECTION 5.12 No Fractional Shares.
No fractional shares or scrip representing fractional shares
of Common Stock shall be issued or delivered upon settlement on the Stock
Purchase Date or upon Early Settlement or Merger Early Settlement of any
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 applicable Settlement Date or upon Early Settlement or Merger Early
Settlement, the Company, through the Agent, shall make a cash payment in respect
of such fractional shares in an amount equal to the value of such fractional
shares times the Applicable Market Value. The Company shall provide the Agent
from time to time with sufficient funds to permit the Agent to make all cash
payments required by this Section 5.12 in a timely manner.
ARTICLE VI
REMEDIES
SECTION 6.1 Unconditional Right of Holders to Receive Purchase
Contract Adjustment Payments and Purchase Common Stock.
The Holder of any Unit shall have the right, which is absolute
and unconditional,
(a) subject to the right of the Company to defer payment
thereof pursuant to Section 5.3, and to the forfeiture of any Deferred
Contract Adjustment Payments upon Early Settlement pursuant to Section
5.9 or upon Merger Early Settlement pursuant to Section 5.10 or upon
the occurrence of a Termination Event, to receive payment of each
installment of the Contract Adjustment Payments, if any, with respect
to the Purchase Contract constituting a part of such Unit on the
respective Payment Date for such Unit, and to institute suit for the
enforcement of such right to receive Contract Adjustment Payments, and
(b) to purchase shares of Common Stock pursuant to the
Purchase Contract constituting a part of such Unit and to institute
suit for the enforcement of any such right to purchase shares of Common
Stock, and such rights shall not be impaired without the consent of
such Holder.
45
SECTION 6.2 Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any
right or remedy under this Agreement and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to such Holder,
then and in every such case, subject to any determination in such proceeding,
the Company and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of such
Holder shall continue as though no such proceeding had been instituted.
SECTION 6.3 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates in Section
3.10(f), no right or remedy herein conferred upon or reserved to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.4 Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or
remedy upon a default shall impair any such right or remedy or constitute a
waiver of any such right. Every right and remedy given by this Article or by law
to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
SECTION 6.5 Undertaking for Costs.
All parties to this Agreement agree, and each Holder of a
Unit, by its acceptance of such Unit shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Agreement, or in any suit against the Agent for any
action taken, suffered or omitted by it as Agent, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
provided that the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Agent, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% of the Outstanding Units, or to any suit instituted by any Holder for
the enforcement of distributions on any Notes or Contract Adjustment Payments,
if any, on any Purchase Contract on or after the respective Payment Date
therefor in respect of any Unit held by such Holder, or for enforcement of the
right to purchase shares of Common Stock under the Purchase Contract
constituting part of any Unit held by such Holder.
SECTION 6.6 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Agreement; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, but will suffer and permit the execution of every such power as
though no such law had been enacted.
46
ARTICLE VII
THE AGENT
SECTION 7.1 Certain Duties and Responsibilities.
(a) (1) The Agent undertakes to perform, with respect to
the Units and Separate Notes, 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
against the Agent; and
(2) in the absence of bad faith, willful
misconduct or negligence on its part, the Agent may, with
respect to the Units and Separate Notes, conclusively rely, as
to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions
furnished to the Agent and conforming to the requirements of
this Agreement, but in the case of any certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Agent, the Agent shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Agreement (but need
not confirm or investigate the accuracy of the mathematical
calculations or other facts stated therein).
(b) No provision of this Agreement shall be construed to
relieve the Agent from liability for its own negligent action, its own
negligent failure to act, its own bad faith or its own willful
misconduct, except that:
(1) this paragraph (b) shall not be construed to
limit the effect of paragraph (a) of this Section;
(2) the Agent shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Agent was negligent in
ascertaining the pertinent facts; and
(3) no provision of this Agreement shall require
the Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers.
(c) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the
liability of or affording protection to the Agent shall be subject to
the provisions of this Section.
(d) The Agent is authorized to execute and deliver the
Pledge Agreement in its capacity as Agent.
SECTION 7.2 Notice of Default.
Within 30 days after the occurrence of any default by the
Company hereunder of which a Responsible Officer of the Agent has actual
knowledge, the Agent shall transmit by mail to the Company and the Holders of
Units, as their names and addresses appear in the applicable Register, notice of
such default hereunder, unless such default shall have been cured or waived.
SECTION 7.3 Certain Rights of Agent.
Subject to the provisions of Section 7.1:
(a) the Agent may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction,
47
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document reasonably believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate,
Issuer Order or Issuer Request, and any resolution of the Board of
Directors of the Company may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Agreement the
Agent shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Agent
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate of
the Company;
(d) the Agent may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Agent, in its
discretion, may make reasonable further inquiry or investigation into
such facts or matters related to the execution, delivery and
performance of the Purchase Contracts as it may see fit, and, if the
Agent shall determine to make such further inquiry or investigation, it
shall be given a reasonable opportunity to examine the books, records
and premises of the Company, personally or by agent or attorney;
(f) the Agent may execute any of the powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or an Affiliate of the Agent and the Agent shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney or an affiliate of the Agent appointed with due care
hereunder;
(g) the Agent shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement solely at
the request or direction of any of the Holders pursuant to this
Agreement, unless such Holders shall have offered to the Agent security
or indemnity satisfactory to the Agent against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(h) the Agent shall not be deemed to have notice of any
default unless a responsible Officer of the Agent has actual knowledge
thereof or unless written notice of any event which is in fact such a
default is received by the Agent at the Corporate Trust Office of the
Agent, and such notice references the Units and this Agreement and
states that it is a notice of default; and
(i) the Agent may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Agreement, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such Certificate
previously delivered and not superseded.
SECTION 7.4 Not Responsible for Recitals or Issuance of Units.
The recitals contained herein and in the Certificates shall be
taken as the statements of the Company and the Agent assumes no responsibility
for their accuracy. The Agent makes no representations as to the validity or
sufficiency of either this Agreement or of the Units, or of the Pledge Agreement
or the Pledge. The Agent shall not be accountable for the use or application by
the Company of the Units or the proceeds therefrom or in respect of the Purchase
Contracts.
48
SECTION 7.5 May Hold Units.
Any Registrar or any other agent of the Company, or the Agent
and its Affiliates, in their individual or any other capacity, may become the
owner or pledgee of Units and may otherwise deal with the Company, the
Collateral Agent or any other Person with the same rights it would have if it
were not Registrar or such other agent, or the Agent.
SECTION 7.6 Money Held in Custody.
Money held by the Agent in custody hereunder need not be
segregated from the Agent's other funds except to the extent required by law or
provided herein. The Agent shall be under no obligation to invest or pay
interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.
SECTION 7.7 Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Agent from time to time reasonable
compensation for all services rendered by it hereunder;
(b) except as otherwise expressly provided herein, to
reimburse the Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in accordance
with any provision of this Agreement (including the reasonable
compensation and the reasonable expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence, willful misconduct or bad
faith; and
(c) to indemnify the Agent and any predecessor Agent for,
and to hold it harmless against, any loss, liability or expense
incurred without negligence, willful misconduct 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 Agent shall promptly notify the Company of any
third-party claim which may give rise to the indemnity hereunder and
give the Company the opportunity to control the defense of such claim
with counsel reasonably satisfactory to the indemnified party, and no
such claim shall be settled without the written consent of the Company,
which consent shall not be unreasonably withheld.
For purposes of this Section 7.7, "Agent" shall include any
predecessor Agent; provided that the negligence, bad faith or willful misconduct
of any Agent hereunder shall not affect the rights of any other Agent hereunder.
The provisions of this Section 7.7 shall survive the
termination of this Agreement, the satisfaction or discharge of the Units and/or
the Separate Notes and/or the resignation or removal of the Agent.
SECTION 7.8 Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having (or being a member of a bank
holding company having) a combined capital and surplus of at least $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, qualified and eligible under this Article and
willing to act on reasonable terms. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so
49
published. If at any time the Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 7.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Agent and no
appointment of a successor Agent pursuant to this Article shall become
effective until the acceptance of appointment by the successor Agent
in accordance with the applicable requirements of Section 7.10.
(b) The Agent may resign at any time by giving written
notice thereof to the Company 60 days prior to the effective date of
such resignation. If the instrument of acceptance by a successor Agent
required by Section 7.10 shall not have been delivered to the Agent
within 30 days after the giving of such notice of resignation, the
resigning Agent may petition any court of competent jurisdiction for
the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the
Holders of a majority in number of the Outstanding Units delivered to
the Agent and the Company.
(d) If at any time:
(1) the Agent fails to comply with Section
310(b) of the TIA, as if the Agent were an indenture trustee
under an indenture qualified under the TIA, after written
request therefor by the Company or by any Holder who has been
a bona fide Holder of a Unit for at least six months; or
(2) the Agent shall cease to be eligible under
Section 7.8 and shall fail to resign after written request
therefor by the Company or by any such Holder; or
(3) the Agent shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of
the Agent or of its property shall be appointed or any public
officer shall take charge or control of the Agent or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, (x) the Company by a Board Resolution may
remove the Agent, or (y) any Holder who has been a bona fide Holder of
a Unit for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the removal of the Agent and the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Agent
for any reason, the Company, by a Board Resolution, shall promptly
appoint a successor Agent and shall comply with the applicable
requirements of Section 7.10. If no successor Agent shall have been so
appointed by the Company and accepted appointment in the manner
required by Section 7.10, any Holder who has been a bona fide Holder of
a Unit for at least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor
Agent to give, notice of each resignation and each removal of the Agent
and each appointment of a successor Agent by mailing written notice of
such event by first-class mail, postage prepaid, to all Holders as
their names and addresses appear in the applicable Register. Each
notice shall include the name of the successor Agent and the address of
its Corporate Trust Office.
50
SECTION 7.10 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Agent, every such successor Agent so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Agent an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Agent shall become effective and such successor
Agent, without any further act, deed or conveyance, shall become vested
with all the rights, powers, agencies and duties of the retiring Agent.
On the request of the Company or the successor Agent, such retiring
Agent shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Agent all the rights, powers
and trusts of the retiring Agent and shall duly assign, transfer and
deliver to such successor Agent all property and money held by such
retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Agent all such rights,
powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment
unless at the time of such acceptance such successor Agent shall be
qualified and eligible under this Article.
SECTION 7.11 Merger, Conversion, Consolidation or Succession
to Business.
Any Person into which the Agent may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of the
Agent, shall be the successor of the Agent hereunder, provided such Person shall
be otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Certificates shall have been authenticated and executed on behalf of
the Holders, but not delivered, by the Agent then in office, any successor to
such Agent shall adopt such authentication and execution and deliver the
Certificates so authenticated and executed with the same effect as if such
successor Agent had itself authenticated and executed such Units.
SECTION 7.12 Preservation of Information.
The Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by the Agent
in its capacity as Registrar.
SECTION 7.13 No Obligations of Agent.
Except to the extent otherwise provided in this Agreement, the
Agent assumes no obligation and shall not be subject to any liability under this
Agreement, the Pledge Agreement or any Purchase Contract in respect of the
obligations of the Holder of any Unit thereunder. The Company agrees, and each
Holder of a Certificate, by such Holder's acceptance thereof, shall be deemed to
have agreed, that the Agent's execution of the Certificates on behalf of the
Holders shall be solely as agent and attorney-in-fact for the Holders, and that
the Agent shall have no obligation to perform such Purchase Contracts on behalf
of the Holders, except to the extent expressly provided in Article V.
SECTION 7.14 Tax Compliance.
(a) The Agent, on its own behalf and on behalf of the
Company, will comply with all applicable certification, information
reporting and withholding (including "backup" withholding) requirements
imposed by applicable tax laws, regulations or administrative practice
with respect to (i) any payments made with respect to the Units or (ii)
the issuance, delivery, holding, transfer, redemption or exercise of
rights under the Units. Such compliance shall include, without
limitation, the preparation and timely filing of required returns and
the timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
51
(b) The Agent shall comply with any reasonable written
direction timely 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 conclusively rely on any such direction in accordance with
the provisions of Section 7.1(a)(2).
(c) The Agent shall maintain all appropriate records
documenting compliance with such requirements, and shall make such
records available, on written request, to the Company or its authorized
representative within a reasonable period of time after receipt of such
request.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
SECTION 8.1 Supplemental Agreements Without Consent of
Holders.
Without the consent of any Holders, the Company and the Agent, at any
time and from time to time, may enter into one or more agreements supplemental
hereto, in form satisfactory to the Company and the Agent, for any of the
following purposes:
(a) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Certificates; or
(b) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company (provided such covenants or such surrender
shall not adversely affect the validity, perfection or priority of the
security interests granted or created under the Pledge Agreement); or
(c) to evidence and provide for the acceptance of
appointment hereunder by a successor Agent; or
(d) to make provision with respect to the rights of
Holders pursuant to the requirements of Section 5.6(b) or 5.10; or
(e) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions
herein, or to make any other provisions with respect to such matters or
questions arising under this Agreement, provided such action shall not
adversely affect the interests of the Holders.
SECTION 8.2 Supplemental Agreements with Consent of Holders.
(a) With the consent of the Holders of not less than a
majority of the outstanding Purchase Contracts voting together as one
class, by Act of said Holders delivered to the Company and the Agent,
the Company, when authorized by a Board Resolution, and the Agent may
enter into an agreement or agreements supplemental hereto for the
purpose of modifying in any manner the terms of the Purchase Contracts,
or the provisions of this Agreement or the rights of the Holders in
respect of the Units; provided that, except as contemplated herein, no
such supplemental agreement shall, without the consent of the Holder of
each Outstanding Unit affected thereby:
(1) change any Payment Date;
(2) change the amount or the type of Collateral
required to be Pledged to secure a Holder's obligations under
the Purchase Contract, impair the right of the Holder of any
Purchase Contract to receive distributions on the related
Collateral (except for the rights of Holders of Normal Units
to substitute the Treasury Securities for the Pledged Notes or
Pledged Treasury
52
Consideration or the rights of holders of Stripped Units to
substitute Notes or appropriate Treasury Consideration for the
Pledged Treasury Securities) or otherwise materially adversely
affect the Holder's rights in or to such Collateral;
(3) reduce any Contract Adjustment Payments or
any Deferred Contract Adjustment Payment, or change any place
where, or the coin or currency in which, any Contract
Adjustment Payment is payable or increase any amounts payable
in respect of the Units or decrease any other amounts
receivable by Holders in respect of the Units;
(4) impair the right to institute suit for the
enforcement of any Purchase Contract, any Contract Adjustment
Payment, if any, or any Deferred Contract Adjustment Payment,
if any;
(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 Stock Purchase Date or
otherwise materially 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 Normal Units or the Stripped Units, then only
the affected class of Holder as of the record date for the Holders
entitled to vote thereon will be entitled to vote on or consent to such
amendment or proposal, and such amendment or proposal shall not be
effective except with the consent of Holders of not less than a
majority of such class; provided, however, that no such agreement,
whether with or without the consent of Holders, shall affect Section
3.16.
(b) It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any proposed
supplemental agreement, but it shall be sufficient if such Act shall
approve the substance thereof.
SECTION 8.3 Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by,
any supplemental agreement permitted by this Article or the modifications
thereby of the agencies created by this Agreement, the Agent shall be entitled
to receive and (subject to Section 7.1) shall be fully protected in relying
upon, an Officer's Certificate and an Opinion of Counsel stating that the
execution of such supplemental agreement is authorized or permitted by this
Agreement and that all conditions precedent to the execution of such
supplemental agreement have been satisfied. The Agent shall enter into any such
supplemental agreement which does not materially adversely affect the Agent's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 8.4 Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this
Article, this Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Agreement for all purposes; and
every Holder of Certificates theretofore or thereafter authenticated, executed
on behalf of the Holders and delivered hereunder shall be bound thereby.
SECTION 8.5 Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders
and delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Agent, bear a notation in form
approved by the Agent as to any matter provided for in such supplemental
agreement. If the Company shall so determine, new Certificates so modified as to
conform, in the opinion of the Agent and the Company, to any such
53
supplemental agreement may be prepared and executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Agent in
exchange for Outstanding Certificates.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions.
The Company covenants that, so long as any Units are
outstanding, it will not (a) merge with or into or consolidate with any other
Person or (b) transfer, lease or convey all or substantially all its assets to
any Person or buy all or substantially all of the assets of another Person,
unless (i) either the Company shall be the continuing entity, or the successor
(if other than the Company) shall be a corporation, partnership or trust
organized and existing under the laws of the United States of America or a State
thereof or the District of Columbia and such Person shall expressly assume all
the obligations of the Company under the Purchase Contracts, this Agreement, the
Remarketing Agreement and the Pledge Agreement by one or more supplemental
agreements in form reasonably satisfactory to the Agent and the Collateral
Agent, executed and delivered to the Agent and the Collateral Agent by such
Person, and (ii) the Company or such successor, as the case may be, shall not,
immediately after such merger or consolidation, or such transfer, lease or
conveyance, be in default in the performance of any covenant or condition
hereunder, under any of the Purchase Contracts, under the Remarketing Agreement
or under the Pledge Agreement.
SECTION 9.2 Rights and Duties of Successor Corporation.
(a) In case of any such consolidation, merger, transfer,
lease, purchase or conveyance and upon any such assumption by a successor entity
in accordance with Section 9.1, such successor entity shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the Company. Such successor entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Certificates evidencing Units issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Agent; and, upon the order
of such successor corporation, instead of the Company, and subject to all the
terms, conditions and limitations in this Agreement prescribed, the Agent shall
authenticate and execute on behalf of the Holders and deliver any Certificates
which previously shall have been signed and delivered by the officers of the
Company to the Agent for authentication, execution on behalf of the Holder and
delivery, and any Certificate evidencing Units which such successor entity
thereafter shall cause to be signed and delivered to the Agent for that purpose.
All the Certificates so issued shall in all respects have the same legal rank
and benefit under this Agreement as the Certificates theretofore or thereafter
issued in accordance with the terms of this Agreement as though all of such
Certificates had been issued at the date of the execution hereof.
(b) In case of any such consolidation, merger, transfer,
lease, purchase or conveyance such change in phraseology and form (but not in
substance) may be made in the Certificates evidencing Units thereafter to be
issued as may be appropriate.
SECTION 9.3 Opinion of Counsel Given to Agent.
The Agent, subject to Sections 7.1 and 7.3, shall receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
transfer, lease, purchase or conveyance, and any such assumption, complies with
the provisions of this Article and that all conditions precedent to the
consummation of any such consolidation, merger, sale, assignment, transfer,
lease, purchase or conveyance have been met.
54
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 Units that it will duly and punctually perform
its obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
SECTION 10.2 Maintenance of Office or Agency.
(a) The Company will maintain in the Borough of
Manhattan, The City of New York an office or agency where Certificates
may be presented or surrendered for acquisition of shares of Common
Stock upon settlement of the Purchase Contracts on any Settlement Date
and for transfer of Collateral upon occurrence of a Termination Event,
where Certificates may be surrendered for registration of transfer or
exchange, for a Collateral Substitution or reestablishment of Normal
Units and where notices and demands to or upon the Company in respect
of the Units and this Agreement may be served. The Company will give
prompt written notice to the Agent of the location, and any change in
the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail
to furnish the Agent with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office, and the Company hereby appoints the Agent as its agent to
receive all such presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one
or more other offices or agencies where Certificates may be presented
or surrendered for any or all such purposes and may from time to time
rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the Borough of Manhattan, The City of
New York for such purposes. The Company will give prompt written notice
to the Agent of any such designation or rescission and of any change in
the location of any such other office or agency. The Company hereby
designates as the place of payment for the Units the Corporate Trust
Office and appoints the Agent at its Corporate Trust Office as paying
agent in such city.
SECTION 10.3 Company to Reserve Common Stock.
The Company shall at all times prior to the Stock Purchase
Date reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock the maximum number of shares of Common
Stock issuable against tender of payment in respect of all Purchase Contracts
constituting a part of the Units evidenced by Outstanding Certificates.
SECTION 10.4 Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which
may be issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Units will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
SECTION 10.5 Statements of Officer of the Company as to
Default.
The Company will deliver to the Agent, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions hereof, and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which such Officers may have knowledge. In the event the Company shall change
its fiscal year at any time the Units are outstanding, the Company shall notify
the Agent of the effective date of such change.
55
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
UNION PLANTERS CORPORATION
By: ____________________________
Name:
Title:
[________],
as Purchase Contract Agent
By: _____________________________
Name:
Title:
EXHIBIT A
FORM OF NORMAL UNITS CERTIFICATE
(Form of Global Certificate Legend)
[THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE
CONTRACT AGREEMENT (AS DEFINED ON THE REVERSE HEREOF) AND IS REGISTERED IN THE
NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF
THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.]*
[so long as DTC is the Depositary, insert: Unless this Certificate is presented
by an authorized representative of The Depository Trust Company (55 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the Company or its agent for registration of
transfer, exchange or payment, and any Certificate issued is registered in the
name of Cede & Co., or such other name as requested by an authorized
representative of The Depository Trust Company, and any payment hereon is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of The Depository Trust Company, 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.]
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR CERTIFICATES IN
DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE
PURCHASE CONTRACT AGREEMENT, THIS GLOBAL CERTIFICATE MAY NOT BE TRANSFERRED
EXCEPT 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
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY.]*
--------------------------
* To be inserted in Global Certificates only.
A-1
(Form of Face of Normal Units Certificate)
Union Planters Corporation
[__]% [_____________ Units]
No. CUSIP No. [_______]
Number of Normal Units
This Normal Units Certificate certifies that ______ is the
registered Holder of the number of Normal Units set forth above [If the
Certificate is a Global Certificate, insert - , as such number may be increased
or decreased as set forth on the Schedule of Increases or Decreases in Global
Certificate annexed hereto]. Each Normal Unit represents (i) either (a) a
1/[__], or [__]%, beneficial ownership interest of the Holder in one [__]%
Senior Note due 200[_] (the "Note") of Union Planters Corporation, a Tennessee
corporation (the "Company"), having a principal amount of $[____], subject to
the Pledge of such Note by such Holder pursuant to the Pledge Agreement, or (b)
if the Notes have been remarketed by the Remarketing Agent (or if the Holder has
elected not to have the Note represented by the Normal Units evidenced by this
Normal Units Certificate remarketed or a Special Event Redemption has occurred),
the appropriate Treasury Consideration, subject to the Pledge of such Treasury
Consideration by such Holder pursuant to the Pledge Agreement, and (ii) the
rights and obligations of the Holder under one Purchase Contract with the
Company. Each Normal Unit will have a stated amount of $[__] (the "Stated
Amount"). All capitalized terms used herein which are defined in the Purchase
Contract Agreement have the meaning set forth therein.
Pursuant to the Pledge Agreement, the interest in the Note or
the appropriate Treasury Consideration, as the case may be, constituting part of
each Normal 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 part of such Normal Unit to purchase shares of
Common Stock of the Company. Prior to the purchase of shares of Common Stock
under each Purchase Contract, such Purchase Contracts shall not entitle the
Holders of Normal Units Certificates to any of the rights of a holder of shares
of Common Stock, including without limitation, the right to vote or receive any
dividends or other payments or to consent or to receive notice as shareholders
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
shareholder of the Company.
The Pledge Agreement provides that all payments in respect of
the Pledged Notes or Pledged Treasury Consideration received by the Collateral
Agent shall be paid by the Collateral Agent by wire transfer in same day funds
(i) in the case of (A) quarterly cash distributions on Normal Units which
include Pledged Notes or Pledged Treasury Consideration, as the case may be, and
(B) any payments in respect of the Notes or Treasury Consideration, as the case
may be, that have been released from the Pledge pursuant to the Pledge
Agreement, to the Agent to the account designated by the Agent, no later than
11:00 a.m., New York City time, on the Business Day such payment is received by
the Collateral Agent (provided that in the event such payment is received by the
Collateral Agent on a day that is not a Business Day or after 9:00 a.m., New
York City time, on a Business Day, then such payment shall be made no later than
9:30 a.m., New York City time, on the next succeeding Business Day) and (ii) in
the case of payments in respect of any Pledged Notes or Pledged Treasury
Consideration, as the case may be, to be paid upon settlement of such Holder's
obligations to purchase shares of Common Stock under the Purchase Contract, to
the Company on the Stock Purchase Date (as defined herein) in accordance with
the terms of the Pledge Agreement, in full satisfaction of the respective
obligations of the Holders of the Normal Units of which such Pledged Notes or
Pledged Treasury Consideration are a part under the Purchase Contracts forming a
part of such Normal Units. Payments payable on each Payment Date (as defined
below) with respect to Pledged Notes or the appropriate Pledged Treasury
Consideration included in the Normal Units shall be made quarterly in arrears on
such Payment Date, subject to receipt thereof by the Agent from the Trustee or
Collateral Agent, as the case may be, be paid to the Person in whose name this
Normal Units Certificate (or a Predecessor Normal Units Certificate) is
registered at the close of business on the Record Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder
of this Normal Units Certificate to purchase, and the Company to sell, on
[______], 200[_] (the "Stock Purchase Date"), at a price equal to $[__] (the
"Purchase Price"), a number of shares of Common Stock, par value $5.00 per share
("Common Stock"), of the
A-2
Company, equal to the Settlement Rate, unless on or prior to the Stock Purchase
Date there shall have occurred a Termination Event or an Early Settlement or
Merger Early Settlement with respect to the Normal Units of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement, as
defined and more fully described on the reverse hereof. The Purchase Price for
the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby, if not paid earlier, shall be satisfied on the Stock Purchase
Date by either (i) the application of payments received with regard to Pledged
Treasury Consideration, or (ii) the exercise of the Company's rights as a
secured party in connection with the Pledged Notes, as the case may be.
The Company shall pay on each [______],[______],[______] and
[______] each year, commencing [______], 200[_] (a "Payment Date") in respect of
each Purchase Contract forming part of a Normal Unit evidenced hereby an amount
(the "Contract Adjustment Payments") equal to [___]% per year of the Stated
Amount, computed on the basis of a 360-day year of twelve 30-day months, subject
to deferral at the option of the Company as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof (provided that if on
any date on which Contract Adjustment Payments are to be made on the Purchase
Contracts is not a Business Day, then payment of the Contract Adjustment
Payments payable on that date will be made on the next succeeding day which is a
Business Day, and no interest or payment will be paid in respect of the delay,
except that if such next succeeding Business Day is in the next succeeding
calendar year, such payment will be made on the immediately preceding Business
Day). Such Contract Adjustment Payments shall be payable to the Person in whose
name this Normal Units Certificate (or a Predecessor Normal Units Certificate)
is registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments and payments on the Notes or the
appropriate Treasury Consideration will be payable at the office of the Agent in
The City of New York or, at the option of the Company, by check mailed to the
address of the Person entitled thereto as such address appears on the Normal
Units Register or by wire transfer to the account designated by such Person in
writing.
Reference is hereby made to the further provisions set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Agent by manual signature, this Normal Units Certificate shall
not be entitled to any benefit under the Pledge Agreement or the Purchase
Contract Agreement or be valid or obligatory for any purpose.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: ____________
UNION PLANTERS CORPORATION
By: __________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations of
such Holder under the Purchase Contracts
evidenced hereby)
By: [________],
not individually but solely as
Attorney-in-Fact of such Holder
By: _______________________________
Name:
Title:
A-4
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Normal Units Certificates referred to in
the within mentioned Purchase Contract Agreement.
[____________],
as Purchase Contract Agent
Dated: _____________________________ By: ______________________________
Authorized Officer
A-5
(Form of Reverse of Normal Units Certificate)
Each Purchase Contract evidenced hereby is governed by a
Purchase Contract Agreement, dated as of [______], 200[_] (as may be
supplemented from time to time, the "Purchase Contract Agreement"), between the
Company and [________], as Purchase Contract Agent (including its successors
thereunder, herein called the "Agent"), to which Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Agent, the Company, and the Holders and of the terms upon
which the Normal Units Certificates are, and are to be, executed and delivered.
All defined terms used but not defined in this Certificate have the meanings
ascribed to them in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby obligates the Holder
of this Normal Units Certificate to purchase, and the Company to sell, on the
Stock Purchase Date at a price equal to $[__] (the "Purchase Price"), a number
of shares of Common Stock of the Company equal to the Settlement Rate, unless,
on or prior to the Stock Purchase Date, there shall have occurred a Termination
Event or a Cash Settlement, Early Settlement or Merger Early Settlement with
respect to the Unit of which such Purchase Contract is a part. The "Settlement
Rate" is equal to (a) if the Applicable Market Value (as defined below) is equal
to or greater than $[__] (the "Threshold Appreciation Price"), [____] shares of
Common Stock per Purchase Contract, (b) if the Applicable Market Value is less
than the Threshold Appreciation Price but is greater than $[__], the number of
shares of Common Stock per Purchase Contract equal to the Purchase Price divided
by the Applicable Market Value and (c) if the Applicable Market Value is equal
to or less than $[__], [____] shares of Common Stock per Purchase Contract, in
each case subject to adjustment as provided in the Purchase Contract Agreement.
No fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts, as provided in the Purchase Contract Agreement.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Stock Purchase Date
or, in the event of a Cash Merger, the Cash Merger Date.
The "Closing Price" of the Common Stock on any date of
determination means the closing sale price (or, if no closing sale price is
reported, the last reported sale price) of the Common Stock on the New York
Stock Exchange (the "NYSE") on such date or, if the Common Stock is not listed
for trading on the NYSE on any such date, as reported in the composite
transactions for the principal United States securities exchange on which the
Common Stock is so listed, or if the Common Stock is not so listed on a United
States national or regional securities exchange, as reported by The Nasdaq Stock
Market, or, if the Common Stock is not so reported, the last quoted bid price
for the Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization, or, if such bid price is not
available, the market value of the Common Stock on such date as determined by a
nationally recognized independent investment banking firm retained for this
purpose by the Company.
A "Trading Day" means a day on which the Common Stock (A) is
not suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock at the close of business on such day.
Each Purchase Contract evidenced hereby may be settled prior
to the Stock Purchase Date through Cash Settlement, Early Settlement or Merger
Early Settlement, in accordance with the terms of the Purchase Contract
Agreement.
In accordance with the terms of the Purchase Contract
Agreement, the Holder of this Normal Units Certificate shall pay the Purchase
Price for the shares of Common Stock purchased pursuant to each Purchase
Contract evidenced hereby (i) by effecting a Cash Settlement, an Early
Settlement or Merger Early Settlement, (ii) by application of payments received
in respect of the Pledged Treasury Consideration acquired from the proceeds of a
remarketing of the related Pledged Notes underlying the Normal Units represented
by this Normal Units Certificate as contemplated by Section 5.4 of the Purchase
Contract Agreement, (iii) if the Holder has elected not to participate in the
remarketing, by application of payments received in respect of the Pledged
Opt-out Treasury Consideration deposited by such Holder in respect of such
Purchase Contract or (iv) if a Special Event Redemption
A-6
has occurred prior to the successful remarketing of the Notes as contemplated by
Section 5.4 of the Purchase Contract Agreement, by application of payments
received in respect of the Pledged Treasury Consideration purchased by the
Collateral Agent on behalf of the Holder of this Normal Units Certificate. The
Company shall not be obligated to issue any shares of Common Stock in respect of
a Purchase Contract or deliver any certificates therefor to the Holder unless it
shall have received payment in full of the aggregate Purchase Price for the
shares of Common Stock to be purchased thereunder or become entitled to exercise
its rights as a secured party in the manner set forth in the Purchase Contract
Agreement. If, as provided in the Purchase Contract Agreement, upon the
occurrence of a Last Failed Remarketing the Collateral Agent, for the benefit of
the Company, exercises its rights as a secured creditor with respect to the
Pledged Notes related to this Normal Units Certificate, any accrued and unpaid
interest on such Pledged Notes will become payable by the Company to the Holder
of this Normal Units Certificate in the manner provided for in the Purchase
Contract Agreement.
Under and subject to the terms of the Pledge Agreement and the
Purchase Contract Agreement, the Agent will be entitled to exercise the voting
and any other consensual rights pertaining to the Pledged Notes, but only to the
extent instructed by the Holders as described below. Upon receipt of notice of
any meeting at which holders of Notes are entitled to vote or upon the
solicitation of consents, waivers or proxies of holders of Notes, the Agent
shall, as soon as practicable thereafter, mail to the Holders of Normal Units a
notice (a) containing such information as is contained in the notice or
solicitation, (b) stating that each such Holder on the record date set by the
Agent therefor (which, to the extent possible, shall be the same date as the
record date for determining the holders of Notes entitled to vote) shall be
entitled to instruct the Agent as to the exercise of the voting rights
pertaining to the Pledged Notes constituting a part of such Holder's Normal
Units and (c) stating the manner in which such instructions may be given. Upon
the written request of any Holder of Normal Units on such record date, the Agent
shall endeavor insofar as practicable to vote or cause to be voted, in
accordance with the instructions set forth in such request the maximum number of
Pledged Notes as to which any particular voting instructions are received. In
the absence of specific instructions from the Holder of a Normal Unit, the Agent
shall abstain from voting the Pledged Note evidenced by such Normal Unit.
The Normal Units Certificates are issuable only in registered
form and only in denominations of a single Normal Unit and any integral multiple
thereof. The transfer of any Normal Units Certificate will be registered and
Normal Units Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Normal Units 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 of a Normal Units Certificate, but the
Company and the Agent may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Certificates, other than exchanges not
involving any transfer as provided for in the Purchase Contract Agreement. The
Holder of a Normal Unit may substitute for the Pledged Notes or Pledged Treasury
Consideration securing its obligations under the related Purchase Contract
Treasury Securities in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement. From and after such Collateral Substitution,
the Unit for which such Pledged Treasury Securities secures the Holder's
obligation under the Purchase Contract shall be referred to as a "Stripped
Unit." A Holder that elects to substitute Treasury Securities for Pledged Notes
or Pledged Treasury Consideration, thereby creating Stripped Units, 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 Normal Unit remains in effect, such Normal Unit shall not
be separable into its constituent parts, and the rights and obligations of the
Holder of such Normal Units in respect of the Pledged Note or Pledged Treasury
Consideration and Purchase Contract comprising such Normal Unit may be acquired,
and may be transferred and exchanged, only as a Normal Unit.
A Holder of Stripped Units may reestablish Normal Units at any
time from and after the date of the Purchase Contract Agreement and on or prior
to the seventh Business Day immediately preceding the Stock Purchase Date by
depositing with the Collateral Agent the Notes or the appropriate Treasury
Consideration in exchange for the release of the Pledged Treasury Securities in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
Subject to the next succeeding paragraph, the Company shall
pay, on each Payment Date, the Contract Adjustment Payments, if any, payable in
respect of each Purchase Contract to the Person in whose name the Normal Units
Certificate (or one or more Predecessor Normal Units Certificates) evidencing
such Purchase
A-7
Contract is registered on the Normal Units Register at the close of business on
the Record Date next preceding such Payment Date. The Contract Adjustment
Payments, if any, will be payable at the Corporate Trust Office or such other
office or agency designated as set forth in the Purchase Contract Agreement 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 Normal Units
Register or by wire transfer to the account designated by such Person in
writing.
The Company shall have the right, at any time prior to the
Stock Purchase Date, to defer the payment of any or all of the Contract
Adjustment Payments otherwise payable on any Payment Date, but only if the
Company shall give the Holders and the Agent written notice of its election to
defer each such Contract Adjustment Payments as provided in the Purchase
Contract Agreement. Any Contract Adjustment Payments so deferred shall, to the
extent permitted by law, accrue additional Contract Adjustment Payments thereon
at the rate of [__]% per year (computed on the basis of a 360-day year of twelve
30-day months), compounding on each succeeding Payment Date, until paid in full
(such deferred installments of Contract Adjustment Payments, if any, together
with the additional Contract Adjustment Payments, if any, accrued thereon, are
referred to herein as the "Deferred Contract Adjustment Payments"). Deferred
Contract Adjustment Payments, if any, shall be due on the next succeeding
Payment Date except to the extent that payment is deferred pursuant to the
Purchase Contract Agreement. No Contract Adjustment Payments may be deferred to
a date that is after the Stock Purchase Date and no such deferral period may end
other than on a Payment Date.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until a Payment Date
prior to the Stock Purchase Date, then all Deferred Contract Adjustment
Payments, if any, shall be payable to the registered Holders as of the close of
business on the Record Date immediately preceding such Payment Date.
The Company's obligations with respect to Contract Adjustment
Payments (including any accrued or Deferred Contract Adjustment Payments) will
be subordinated and junior in right of payment to the Company's obligations
under any Senior Indebtedness in the manner and to the extent set forth in the
Purchase Contract Agreement.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until the Stock Purchase
Date, the Holder of this Normal Units Certificate will receive on the Stock
Purchase Date, in lieu of a cash payment, a number of shares of Common Stock (in
addition to the number of shares of Common Stock equal to the Settlement Rate)
equal to (i) the aggregate amount of Deferred Contract Adjustment Payments
payable to the Holder of this Normal Units Certificate divided by (ii) the
Applicable Market Value.
In the event the Company exercises its option to defer the
payment of Contract Adjustment Payments, then, until the earlier of (x) the
Termination Date and (y) the date on which the Deferred Contract Adjustment
Payments have been paid, the Company shall not, and will not permit any
subsidiary of the Company to, declare or pay dividends on, make distributions
with respect to, or redeem, purchase or acquire, or make a liquidation payment
with respect to, any of the Company's Capital Stock other than (i) repurchases,
redemptions or acquisitions of shares of the Company's Capital Stock in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of employees, officers, directors or agents
or a stock purchase or dividend reinvestment plan, or the satisfaction by the
Company of its obligations pursuant to any contract or security outstanding on
the date the Company exercises its rights to defer the Contract Adjustment
Payments; (ii) as a result of a reclassification of the Company's Capital Stock
or the exchange or conversion of one class or series of the Company's Capital
Stock for another class or series of the Company's Capital Stock; (iii) the
purchase of fractional interests in shares of any series of the Company's
Capital Stock pursuant to the conversion or exchange provisions of such Capital
Stock or the security being converted or exchanged; (iv) dividends or
distributions in any series of the Company's Capital Stock (or rights to acquire
Capital Stock) or repurchases, acquisitions or redemptions of the Company's
Capital Stock in connection with the issuance or exchange of any series of the
Company's Capital Stock (or securities convertible into or exchangeable for
shares of the Company's Capital Stock); or (v) redemptions, exchanges or
repurchases of any rights outstanding under a shareholder rights plan or the
declaration or payment thereunder of a dividend or distribution of or with
respect to rights in the future, or the redemption or repurchase of any rights
pursuant thereto.
A-8
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 accumulated Contract Adjustment Payments, if any, or any
Deferred Contract Adjustment Payments and the obligations of the Holders to
purchase shares of Common Stock, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Agent or the
Company, if, on or prior to the Stock Purchase Date, a Termination Event shall
have occurred. Upon the occurrence of a Termination Event, the Company shall
promptly but in no event later than two Business Days thereafter give written
notice to the Agent, the Collateral Agent and to the Holders, at their addresses
as they appear in the Normal Units Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Notes or
Pledged Treasury Consideration from the Pledge in accordance with the provisions
of the Pledge Agreement.
Upon registration of transfer of this Normal Units
Certificate, the transferee shall be bound (without the necessity of any other
action on the part of such transferee, except as may be required by the Agent
pursuant to the Purchase Contract Agreement), under the terms of the Purchase
Contract Agreement, the Purchase Contracts evidenced hereby and the Pledge
Agreement and the transferor shall be released from the obligations under the
Purchase Contract Agreement, the Purchase Contracts evidenced by this Normal
Units Certificate and the Pledge Agreement. 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 Normal Units Certificate, by its acceptance
hereof, irrevocably authorizes the Agent to enter into and perform the related
Purchase Contracts forming part of the Normal Units evidenced hereby on his
behalf as his 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 such Holder's obligations under such Purchase
Contracts, consents to the provisions of the Purchase Contract Agreement,
irrevocably authorizes the Agent to enter into and perform the Pledge Agreement
on such Holder's behalf as attorney-in-fact, and consents to the Pledge of the
Notes or the appropriate Treasury Consideration underlying this Normal Units
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 Pledged Notes or the Pledged Treasury Consideration to be paid
upon settlement of such Holder's obligations to purchase shares of Common Stock
under the Purchase Contract, shall be paid on the Stock Purchase Date by the
Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such payments. The obligations of each Holder to pay the Purchase
Price are non-recourse obligations and except to the extent paid by Cash
Settlement, Early Settlement or Merger Early Settlement, are payable solely out
of the proceeds of any Collateral pledged to secure the obligations of the
Holders and in no event will Holders be liable for any deficiency between such
payments and the Purchase Price. Notwithstanding anything to the contrary
herein, 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 of the related Unit unless the Company shall have (i) 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 or (ii)
exercised its rights as a secured party under Section 5.4(b)(iii) of the
Purchase Contract Agreement.
Each Holder of any Unit, and each Beneficial Owner thereof, by
its acceptance thereof or of its interest therein, further agrees to treat (i)
itself as the owner of the related Notes, Treasury Consideration or Treasury
Securities, as the case may be, and (ii) the Notes as indebtedness of the
Company in each case, for United States federal, state and local income and
franchise tax purposes.
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 outstanding Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by,
deemed to be a contract under, and construed in accordance with, the laws of the
State of New York.
The Company, the Agent and its Affiliates and any agent of the
Company or the Agent may treat the Person in whose name this Normal Units
Certificate is registered as the owner of the Normal Units evidenced
A-9
hereby for the purpose of receiving quarterly payments of interest on the Notes
or the Treasury Consideration, as the case may be, receiving payments of
Contract Adjustment Payments, if any, and any Deferred Contract Adjustment
Payments, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the Agent,
such Affiliates nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of Common
Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Agent.
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
________________________________
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
A-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Normal Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ____________________________________
attorney to transfer said Normal Units Certificates on the books of Union
Planters Corporation 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 Normal Units
Certificates in every particular, without
alteration or enlargement or any change
whatsoever.
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 Stock Purchase Date
of the Purchase Contracts underlying the number of Normal Units evidenced by
this Normal Units Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: ______________________ Signature: _________________________
Signature Guarantee: _______________
(if assigned to another person)
If shares are to be registered in REGISTERED HOLDER
the name of and delivered to a
Person other than the Holder, Please print name and address of Registered
please (i) print such Person's Holder:
name and address and (ii) provide
a guarantee of your signature:
_________________________________ ____________________________________________
Name Name
_________________________________ ____________________________________________
Address Address
Social Security or other Taxpayer
Identification Number, if any
A-13
ELECTION TO SETTLE EARLY
The undersigned Holder of this Normal Units 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 Normal Units evidenced by this Normal Units
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Normal Units with
an aggregate Purchase Price equal to $[____] 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
Normal Units Certificate representing any Normal 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 Notes or Pledged Treasury Consideration
deliverable upon such Early Settlement will be transferred in accordance with
the transfer instructions set forth below. If shares of Common Stock are to be
registered in the name of a Person other than the undersigned, the undersigned
will pay any transfer tax payable incident thereto.
Dated: ________________ Signature: _________________________
Signature Guarantee: _____________ Signature Guarantee: _______________
Number of Units evidenced hereby as to which Early Settlement
of the related Purchase Contracts is being elected:
If shares of Common Stock are to REGISTERED HOLDER
be registered in the name of and
delivered to and Pledged Notes or Please print name and address of Registered
Pledged Treasury Consideration Holder:
are to be transferred to a Person
other than the Holder, please
print such Person's name and
address:
_________________________________ ____________________________________________
Name Name
_________________________________ ____________________________________________
Address Address
Social Security or other Taxpayer
Identification Number, if any
Transfer instructions for Pledged Notes or Pledged Treasury Consideration
transferable upon Early Settlement or a Termination Event:
A-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:
Amount of Decrease Amount of Increase Stated Amount of the
in Stated Amount of in Stated Amount of Global Certificate Signature of
the Global the Global Following Such Authorized
Date Certificate Certificate Decrease or Increase Officer of Agent
------------ ------------------- ------------------- -------------------- ----------------
A-15
EXHIBIT B
FORM OF STRIPPED UNITS CERTIFICATE
(Form of Global Certificate Legend)
[THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE
CONTRACT AGREEMENT (AS DEFINED ON THE REVERSE HEREOF) AND IS REGISTERED IN THE
NAME OF A CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF
THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.]*
[so long as DTC is the Depositary, insert: Unless this Certificate is presented
by an authorized representative of The Depository Trust Company (55 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the Company or its agent for registration of
transfer, exchange or payment, and any Certificate issued is registered in the
name of Cede & Co., or such other name as requested by an authorized
representative of The Depository Trust Company, and any payment hereon is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of The Depository Trust Company, 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.]
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR CERTIFICATES IN
DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE
PURCHASE CONTRACT AGREEMENT, THIS GLOBAL CERTIFICATE MAY NOT BE TRANSFERRED
EXCEPT 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
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY.]*
--------------------------------
* To be inserted in Global Certificates only.
B-1
(Form of Face of Stripped Units Certificate)
Union Planters Corporation
[__]% [_____________ Units]
No. CUSIP No. [_______]
Number of Stripped Units
This Stripped Units Certificate certifies that _________ is
the registered Holder of the number of Stripped Units set forth above [If the
Certificate is a Global Certificate, insert - , as such number may be increased
or decreased as set forth on the Schedule of Increases or Decreases in Global
Certificate annexed hereto]. Each Stripped Unit represents (i) a 1/[__]
undivided beneficial ownership interest in a Treasury Security, subject to the
Pledge of such interest in such Treasury Security by such Holder pursuant to the
Pledge Agreement, and (ii) the rights and obligations of the Holder under one
Purchase Contract with Union Planters Corporation, a Tennessee corporation (the
"Company"). Each Stripped Unit will have a stated amount of $[__] (the "Stated
Amount"). All capitalized terms used herein which are defined in the Purchase
Contract Agreement have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Treasury Security
constituting part of each Stripped Unit evidenced hereby has been pledged to the
Collateral Agent, for the benefit of the Company, to secure the obligations of
the Holder under the Purchase Contract comprising a part of such Stripped Unit
to purchase shares of Common Stock of the Company. Prior to the purchase of
shares of Common Stock under each Purchase Contract, such Purchase Contracts
shall not entitle the Holders of Normal Units Certificates to any of the rights
of a holder of shares of Common Stock, including without limitation, the right
to vote or receive any dividends or other payments or to consent or to receive
notice as shareholders 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 shareholder of the Company.
Each Purchase Contract evidenced hereby obligates the Holder
of this Stripped Units Certificate to purchase, and the Company to sell, on
[______], 200[_] (the "Stock Purchase Date"), at a price equal to $[__] (the
"Purchase Price"), a number of shares of Common Stock, par value $5.00 per share
("Common Stock"), of the Company, equal to the Settlement Rate, unless on or
prior to the Stock Purchase Date there shall have occurred a Termination Event
or an Early Settlement or Merger Early Settlement with respect to the Stripped
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 (as defined herein) for the shares of Common Stock purchased pursuant to
each Purchase Contract evidenced hereby, if not paid earlier, shall be paid on
the Stock Purchase Date by application of payments received in respect of the
Pledged Treasury Securities pledged to secure the obligations of the Holder
under such Purchase Contract in accordance with the terms of the Pledge
Agreement.
The Company shall pay on each Payment Date in respect of each
Purchase Contract forming part of a Stripped Unit evidenced hereby an amount
(the "Contract Adjustment Payments") equal to [___]% per year of the Stated
Amount, computed on the basis of a 360-day year of twelve 30-day months, subject
to deferral at the option of the Company as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof (provided that if on
any date on which Contract Adjustment Payments are to be made on the Purchase
Contracts is not a Business Day, then payment of the Contract Adjustment
Payments payable on that date will be made on the next succeeding day which is a
Business Day, and no interest or payment will be paid in respect of the delay,
except that if such next succeeding Business Day is in the next succeeding
calendar year, such payment will be made on the immediately preceding Business
Day). Such Contract Adjustment Payments shall be payable to the Person in whose
name this Stripped Units Certificate (or a Predecessor Stripped Units
Certificate) is registered at the close of business on the Record Date for such
Payment Date.
Contract Adjustment Payments will be payable at the office of
the Agent in the City of New York or, at the option of the Company, by check
mailed to the address of the Person entitled thereto as such address appears on
the Normal Units Register or by wire transfer to the account designated by such
Person in writing.
B-2
Reference is hereby made to the further provisions set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Agent by manual signature, this Stripped Units Certificate shall
not be entitled to any benefit under the Pledge Agreement or the Purchase
Contract Agreement or be valid or obligatory for any purpose.
B-3
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: ____________
UNION PLANTERS CORPORATION
By: ____________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations of
such Holder under the Purchase Contracts
evidenced hereby)
By: [________], not individually but solely
as Attorney-in-Fact of such Holder
By: _________________________________
Name:
Title:
B-4
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Stripped Units Certificates referred to in
the within-mentioned Purchase Contract Agreement.
Dated: ____________
[________],
as Purchase Contract Agent
By: ____________________________
Authorized Officer
B-5
(Form of Reverse of Stripped Units Certificate)
Each Purchase Contract evidenced hereby is governed by a
Purchase Contract Agreement, dated as of [______], 200[_] (as may be
supplemented from time to time, the "Purchase Contract Agreement"), between the
Company and [________], as Purchase Contract Agent (including its successors
thereunder, herein called the "Agent"), to which the Purchase Contract Agreement
and supplemental agreements thereto reference is hereby made for a description
of the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Agent, the Company and the Holders and of the terms
upon which the Stripped Units Certificates are, and are to be, executed and
delivered. All defined terms used but not defined in this Certificate have the
meanings ascribed to them in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby obligates the Holder
of this Stripped Units Certificate to purchase, and the Company to sell, on the
Stock Purchase Date at a price equal to $[__] (the "Purchase Price"), a number
of shares of Common Stock of the Company equal to the Settlement Rate, unless,
on or prior to the Stock Purchase Date, there shall have occurred a Termination
Event or a Cash Settlement, an Early Settlement or Merger Early Settlement with
respect to the Unit of which such Purchase Contract is a part. The "Settlement
Rate" is equal to (a) if the Applicable Market Value (as defined below) is equal
to or greater than $[__] (the "Threshold Appreciation Price"), [____] shares of
Common Stock per Purchase Contract, (b) if the Applicable Market Value is less
than the Threshold Appreciation Price but is greater than $[__], the number of
shares of Common Stock per Purchase Contract equal to the Purchase Price divided
by the Applicable Market Value and (c) if the Applicable Market Value is equal
to or less than $[__], [____] shares of Common Stock per Purchase Contract, in
each case subject to adjustment as provided in the Purchase Contract Agreement.
No fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts, as provided in the Purchase Contract Agreement.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Stock Purchase Date or
in the event of a Cash Merger, the Cash Merger Date.
The "Closing Price" of the Common Stock on any date of
determination means the closing sale price (or, if no closing sale price is
reported, the last reported sale price) of the Common Stock on the New York
Stock Exchange (the "NYSE") on such date or, if the Common Stock is not listed
for trading on the NYSE on any such date, as reported in the composite
transactions for the principal United States securities exchange on which the
Common Stock is so listed, or if the Common Stock is not so listed on a United
States national or regional securities exchange, as reported by The Nasdaq Stock
Market, or, if the Common Stock is not so reported, the last quoted bid price
for the Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization, or, if such bid price is not
available, the market value of the Common Stock on such date as determined by a
nationally recognized independent investment banking firm retained for this
purpose by the Company.
A "Trading Day" means a day on which the Common Stock (A) is
not suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock at the close of business of such day.
Each Purchase Contract evidenced hereby may be settled prior
to the Stock Purchase Date through Cash Settlement, Early Settlement or Merger
Early Settlement, in accordance with the terms of the Purchase Contract
Agreement.
In accordance with the terms of the Purchase Contract
Agreement, the Holder of this Stripped Units Certificate shall pay the Purchase
Price for the shares of Common Stock purchased pursuant to each Purchase
Contract evidenced hereby (i) by effecting a Cash Settlement, an Early
Settlement or Merger Early Settlement or (ii) by application of payments
received in respect of the Pledged Treasury Securities underlying the Stripped
Units represented by this Stripped Units Certificate.
B-6
The Company shall not be obligated to issue any shares of
Common Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment in full of the
aggregate Purchase Price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
The Stripped Units Certificates are issuable only in
registered form and only in denominations of a single Stripped Unit and any
integral multiple thereof. The transfer of any Stripped Units Certificate will
be registered and Stripped Units Certificates may be exchanged as provided in
the Purchase Contract Agreement. The Stripped Units 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 of a Stripped
Units Certificate, but the Company and the Agent may require payment from the
Holder of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Certificates, other than exchanges not involving any transfer as provided for in
the Purchase Contract Agreement. The Holder of a Stripped Unit may substitute
for the Pledged Treasury Securities securing its obligations under the related
Purchase Contract Notes or the appropriate Treasury Consideration in accordance
with the terms of the Purchase Contract Agreement and the Pledge Agreement. From
and after such Collateral Substitution, the Unit for which such Pledged Notes or
Pledged Treasury Consideration secures the Holder's obligation under the
Purchase Contract shall be referred to as a "Normal Unit." A Holder that elects
to substitute Notes or the appropriate Treasury Consideration for Pledged
Treasury Securities, thereby reestablishing Normal Units, 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 Stripped Unit remains in effect, such Stripped Unit shall not be separable
into its constituent parts, and the rights and obligations of the Holder of such
Stripped Unit in respect of the Pledged Treasury Security and the Purchase
Contract comprising such Stripped Unit may be acquired, and may be transferred
and exchanged, only as a Stripped Unit.
A Holder of Normal Units may establish Stripped Units at any
time from and after the date of the Purchase Contract Agreement and on or prior
to the seventh Business Day immediately preceding the Stock Purchase Date by
depositing with the Collateral Agent Treasury Securities in exchange for the
release of the Pledged Notes or the appropriate Pledged Treasury Consideration
in accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
Subject to the next succeeding paragraph, the Company shall
pay, on each Payment Date, the Contract Adjustment Payments, if any, payable in
respect of each Purchase Contract to the Person in whose name the Stripped Units
Certificate (or one or more Predecessor Stripped Units Certificates) evidencing
such Purchase Contract is registered on the Stripped Units Register at the close
of business on the Record Date next preceding such Payment Date. Contract
Adjustment Payments, if any, will be payable at the Corporate Trust Office or
such other office or agency designated as set forth in the Purchase Contract
Agreement 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
Stripped Units Register or by wire transfer to the account designated by such
Person in writing.
The Company shall have the right, at any time prior to the
Stock Purchase Date, to defer the payment of any or all of the Contract
Adjustment Payments otherwise payable on any Payment Date, but only if the
Company shall give the Holders and the Agent written notice of its election to
defer each such Contract Adjustment Payments as provided in the Purchase
Contract Agreement. Any Contract Adjustment Payments so deferred shall, to the
extent permitted by law, accrue additional Contract Adjustment Payments thereon
at the rate of [__]% per year (computed on the basis of a 360-day year of twelve
30-day months), compounding on each succeeding Payment Date, until paid in full
(such deferred installments of Contract Adjustment Payments, if any, together
with the additional Contract Adjustment Payments, if any, accrued thereon, are
referred to herein as the "Deferred Contract Adjustment Payments"). Deferred
Contract Adjustment Payments, if any, shall be due on the next succeeding
Payment Date except to the extent that payment is deferred pursuant to the
Purchase Contract Agreement. No Contract Adjustment Payments may be deferred to
a date that is after the Stock Purchase Date and no such deferral period may end
other than on a Payment Date.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until a Payment Date
prior to the Stock Purchase Date, then all Deferred Contract
B-7
Adjustment Payments, if any, shall be payable to the registered Holders as of
the close of business on the Record Date immediately preceding such Payment
Date.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until the Stock Purchase
Date, the Holder of this Stripped Units Certificate will receive on the Stock
Purchase Date, in lieu of a cash payment, a number of shares of Common Stock (in
addition to the number of shares of Common Stock equal to the Settlement Rate)
equal to (i) the aggregate amount of Deferred Contract Adjustment Payments
payable to the Holder of this Stripped Units Certificate divided by (ii) the
Applicable Market Value.
The Company's obligations with respect to Contract Adjustment
Payments (including any accrued or Deferred Contract Adjustment Payments) will
be subordinated and junior in right of payment to the Company's obligations
under any Senior Indebtedness in the manner and to the extent set forth in the
Purchase Contract Agreement.
In the event the Company exercises its option to defer the
payment of Contract Adjustment Payments, then, until the earlier of (x) the
Termination Date and (y) the date on which the Deferred Contract Adjustment
Payments have been paid, the Company shall not, and will not permit any
subsidiary of the Company to, declare or pay dividends on, make distributions
with respect to, or redeem, purchase or acquire, or make a liquidation payment
with respect to, any of the Company's Capital Stock other than (i) repurchases,
redemptions or acquisitions of shares of the Company's Capital Stock in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of employees, officers, directors or agents
or a stock purchase or dividend reinvestment plan, or the satisfaction by the
Company of its obligations pursuant to any contract or security outstanding on
the date the Company exercises its rights to defer the Contract Adjustment
Payments; (ii) as a result of a reclassification of the Company's Capital Stock
or the exchange or conversion of one class or series of the Company's Capital
Stock for another class or series of the Company's Capital Stock; (iii) the
purchase of fractional interests in shares of the Company's Capital Stock
pursuant to the conversion or exchange provisions of such Capital Stock or the
security being converted or exchanged; (iv) dividends or distributions in any
series of the Company's Capital Stock (or rights to acquire Capital Stock) or
repurchases, acquisitions or redemptions of the Company's Capital Stock in
connection with the issuance or exchange of any series of the Company's Capital
Stock (or securities convertible into or exchangeable for shares of the
Company's Capital Stock); or (v) redemptions, exchanges or repurchases of any
rights outstanding under a shareholder rights plan or the declaration or payment
thereunder of a dividend or distribution of or with respect to rights in the
future, or the redemption or repurchase of any rights pursuant thereto.
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 accumulated Contract Adjustment Payments, if any, or any
Deferred Contract Adjustment Payments, and the obligations of the Holders to
purchase shares of Common Stock, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Agent or the
Company, if, on or prior to the Stock Purchase Date, a Termination Event shall
have occurred. Upon the occurrence of a Termination Event, the Company shall
promptly but in no event later than two business days thereafter give written
notice to the Agent, the Collateral Agent and to the Holders, at their addresses
as they appear in the Stripped Units Register. Upon and after the occurrence of
a Termination Event, the Collateral Agent shall release the Pledged Treasury
Securities from the Pledge in accordance with the provisions of the Pledge
Agreement.
Upon registration of transfer of this Stripped Units
Certificate, the transferee shall be bound (without the necessity of any other
action on the part of such transferee, except as may be required by the Agent
pursuant to the Purchase Contract Agreement), under the terms of the Purchase
Contract Agreement, the Purchase Contracts evidenced hereby and the Pledge
Agreement and the transferor shall be released from the obligations under the
Purchase Contract Agreement, the Purchase Contracts evidenced by this Stripped
Units Certificate and the Pledge Agreement. The Company covenants and agrees,
and the Holder, by his acceptance hereof, likewise covenants and agrees, to be
bound by the provisions of this paragraph.
The Holder of this Stripped Units Certificate, by its
acceptance hereof, irrevocably authorizes the Agent to enter into and perform
the related Purchase Contracts forming part of the Stripped Units evidenced
hereby
B-8
on his behalf as its attorney-in-fact, expressly withholds any consent to the
assumption (i.e., affirmance) of the Purchase Contracts by the Company or its
trustee in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform such Holder's obligations under such Purchase
Contracts, consents to the provisions of the Purchase Contract Agreement,
irrevocably authorizes the Agent to enter into and perform the Pledge Agreement
on such Holder's behalf as attorney-in-fact, and consents to the Pledge of the
Treasury Securities underlying this Stripped Units 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 Pledged
Treasury Securities, to be paid upon settlement of such Holder's obligations to
purchase shares of Common Stock under the Purchase Contract, shall be paid on
the Stock Purchase Date by the Collateral Agent to the Company in satisfaction
of such Holder's obligations under such Purchase Contract and such Holder shall
acquire no right, title or interest in such payments. The obligations of each
Holder to pay the Purchase Price are non-recourse obligations and except to the
extent paid by Early Settlement or Merger Early Settlement, are payable solely
out of the proceeds of any Collateral pledged to secure the obligations of the
Holders and in no event will Holders be liable for any deficiency between such
payments and the Purchase Price.
Each Holder of any Unit, and each Beneficial Owner thereof, by
its acceptance thereof or of its interest therein, further agrees to treat (i)
itself as the owner of the related Notes, Treasury Consideration or Treasury
Securities, as the case may be, and (ii) the Notes as indebtedness of the
Company in each case, for United States federal, state and local income and
franchise tax purposes.
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 deemed to be a contract under, and construed in accordance with, the laws of
the State of New York.
The Company, the Agent and its Affiliates and any agent of the
Company or the Agent may treat the Person in whose name this Stripped Units
Certificate is registered as the owner of the Stripped Units evidenced hereby
for the purpose of receiving any Contract Adjustment Payments and any Deferred
Contract Adjustment Payments, performance of the Purchase Contracts and for all
other purposes whatsoever, whether or not any payments in respect thereof be
overdue and notwithstanding any notice to the contrary, and neither the Company,
the Agent, such Affiliate, nor any such agent shall be affected by notice to the
contrary.
The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of Common
Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Agent.
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
________________________________
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
B-10
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Stripped Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ________________________________________
____________ attorney to transfer said Stripped Units Certificates on the books
of Union Planters Corporation with full power of substitution in the premises.
Dated: _______________________ Signature: _____________________________
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within Stripped Units
Certificates in every particular, without
alteration or enlargement or any change
whatsoever.
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 Stock Purchase Date
of the Purchase Contracts underlying the number of Stripped Units evidenced by
this Stripped Units Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: ________________________ Signature: _______________________________
Signature Guarantee: _____________________
(if assigned to another person)
If shares are to be registered in REGISTERED HOLDER
the name of and delivered to a
Person other than the Holder, Please print name and address of Registered
please (i) print such Person's Holder:
name and address and (ii) provide
a guarantee of your signature:
_________________________________ ________________________________________
Name Name
_________________________________ ________________________________________
Address Address
Social Security or other Taxpayer
Identification Number, if any
B-12
ELECTION TO SETTLE EARLY
The undersigned Holder of this Stripped Units Certificate
hereby irrevocably exercises the option to effect Early Settlement in accordance
with the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Stripped Units evidenced by this Stripped
Units Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Stripped Units with
an aggregate Purchase Price equal to $[____] 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
Stripped Units Certificate representing any Stripped 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 Treasury Securities deliverable upon
such Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares of Common Stock are to be registered in
the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
Dated: _________________________ Signature: __________________________
Signature Guarantee: ________________
Number of Units evidenced hereby as to which Early Settlement
of the related Purchase Contracts is being elected:
If shares of Common Stock are to REGISTERED HOLDER
be registered in the name of and
delivered to and Pledged Treasury Please print name and address of Registered
Securities are to be transferred Holder:
to a Person other than the Holder,
please print such Person's name
and address:
_________________________________ ________________________________________
Name Name
_________________________________ ________________________________________
Address Address
Social Security or other Taxpayer
Identification Number, if any
Transfer instructions for Pledged Treasury Securities, transferable upon Early
Settlement or a Termination Event:
B-13
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global
Certificate have been made:
Amount of Decrease Amount of Stated Amount of the
in Stated Amount of Increase in Stated Global Certificate Signature of
the Global Amount of the Following Such Authorized Officer
Date Certificate Global Certificate Decrease or Increase of Agent
------------ ------------------- ------------------ -------------------- ------------------
B-14
EXHIBIT C
INSTRUCTION FROM PURCHASE CONTRACT AGENT TO
COLLATERAL AGENT
[________]
[________]
Attention: [________]
Re: [__]% [______________ Units] of Union Planters Corporation
(the "Company")
We hereby notify you in accordance with Section 4.1 of the
Pledge Agreement, dated as of [______], 200[_], among the Company, you, as
Collateral Agent, Custodial Agent and Securities Intermediary, and us, as
Purchase Contract Agent and as attorney-in-fact for the holders of [Normal
Units] [Stripped Units] from time to time, that the holder of securities listed
below (the "Holder") has elected to substitute [$ _______ aggregate principal
amount of Treasury Securities (CUSIP No. _________)] [$_______ principal amount
of Notes or the appropriate Treasury Consideration, as the case may be,] in
exchange for the related [Pledged Notes or Pledged Treasury Consideration]
[Pledged Treasury Securities (CUSIP No. _________),] held by you in accordance
with the Pledge Agreement and has delivered to us a notice stating that the
Holder has transferred [Treasury Securities] [Notes or the appropriate Treasury
Consideration] to you, as Collateral Agent. We hereby instruct you, upon receipt
of such [Pledged Treasury Securities] [Pledged Notes or Pledged Treasury
Consideration], and upon the payment by such Holder of any applicable fees, to
release the [Notes or Treasury Consideration, as the case may be,] [Treasury
Securities] related to such [Normal Units] [Stripped Units] to us in accordance
with the Holder's instructions. Capitalized terms used herein but not defined
shall have the meaning set forth in the Purchase Contract Agreement.
Date: _____________________________
[________],
As Purchase Contract Agent under the
Purchase Contract Agreement, dated as of
[______], 200[_], between the Company and
the Purchase Contract Agent
By: ______________________________________
Name:
Title:
C-1
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Notes or Treasury Consideration, as the case may be,] for
the [Pledged Notes or Pledged Treasury Consideration, as the case may be,]
[Pledged Treasury Securities]:
Name
Address
Social Security or other Taxpayer
Identification Number, if any
C-2
EXHIBIT D
INSTRUCTION TO PURCHASE CONTRACT AGENT
[________], as Purchase Contract Agent
[________]
Attention: Institutional Trust Services
Re: [__]% [_______________] Units of Union Planters
Corporation (the "Company")
The undersigned Holder hereby notifies you, as Purchase
Contract Agent under the Purchase Contract Agreement, dated as of [______],
200[_], between the Company and you, that it has delivered to [________], as
Collateral Agent, Custodial Agent and Securities Intermediary [$_________
aggregate principal amount of Treasury Securities] [$_________ principal amount
of Notes or the appropriate Treasury Consideration, as the case may be,] in
exchange for the related [Pledged Notes or Pledged Treasury Consideration, as
the case may be,] [Pledged Treasury Securities] held by the Collateral Agent, in
accordance with Section 4.1 of the Pledge Agreement, dated as of [______],
200[_], among you, the Company and the Collateral Agent. The undersigned Holder
has paid the Collateral Agent all applicable fees relating to such exchange. The
undersigned Holder hereby instructs you to instruct the Collateral Agent to
release to you on behalf of the undersigned Holder the [Pledged Notes or Pledged
Treasury Consideration, as the case may be,] [Pledged Treasury Securities]
related to such [Normal Units] [Stripped Units]. Capitalized terms used herein
but not defined shall have the meaning set forth in the Purchase Contract
Agreement.
Date:
By: _______________________________
Signature Guarantee: ______________
Dated:
Please print name and address of
Registered Holder:
Name Social Security or other Taxpayer
Identification Number, if any
Address
EXHIBIT E
NOTICE TO SETTLE BY SEPARATE CASH
[________], as Purchase Contract Agent
[________]
Attention: Institutional Trust Services
Re: [__]% [____________] Units of Union Planters Corporation
(the "Company")
The undersigned Holder hereby notifies you in accordance with
Section 5.4 of the Purchase Contract Agreement, dated as of [______], 200[_],
between the Company and you, that it has delivered to [________], as Collateral
Agent, Custodial Agent and Securities Intermediary as Purchase Contract Agent,
Attorney-in-Fact and Trustee for the Holders of the Purchase Contracts, that
such Holder has elected to pay to the Collateral Agent, on or prior to 11:00
a.m. New York City time, on the Business Day immediately preceding the Stock
Purchase Date, (in lawful money of the United States by certified or cashier's
check or wire transfer, in each case in immediately available funds), $___ as
the Purchase Price for the shares of Common Stock issuable to such Holder by the
Company under the related Purchase Contract on the Stock Purchase Date. The
undersigned Holder hereby instructs you to notify promptly the Collateral Agent
of the undersigned Holder's election to make such cash settlement with respect
to the Purchase Contracts related to such Holder's Normal Units. Capitalized
terms used herein but not defined shall have the meaning set forth in the
Purchase Contract Agreement.
Date:
By: _________________________________
Signature Guarantee: ________________
Dated:
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Please print name and address of
Registered Holder:
Name Social Security or other Taxpayer
Identification Number, if any
Address
