EXHIBIT (k)(3)
FORWARD PURCHASE AGREEMENT
Between
,
As Seller,
and
DECS TRUST V, As Purchaser
Dated as of
, 1999
FORWARD PURCHASE AGREEMENT
THIS AGREEMENT is made as of this the day of , 1999 among , a
organized under the laws of the State of Delaware ("Seller" and, together with
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the Other Sellers (as defined below), "Sellers") and DECS Trust V, a business
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trust organized under the laws of the State of Delaware under and by virtue of
an amended and restated declaration of trust, dated as of , 1999 (the
"Declaration of Trust") (such trust and the trustees thereof acting in their
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capacity as such being referred to herein as "Purchaser").
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WHEREAS, Seller owns shares of Common Stock, $.01 par value (the
"Common Stock") of Crown Castle International Corp., a Delaware corporation
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(including its successors) (the "Company");
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WHEREAS, Purchaser has filed with the Securities and Exchange
Commission a registration statement contemplating the offering of up to
5,645,000 DECS (the "DECS"), the terms of which contemplate delivery by
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Purchaser to the holders thereof of a number of shares of Common Stock (or, if
some or all of the Sellers exercise their cash settlement option, cash in lieu
of part or all thereof), on , 2002 (the "Exchange Date");
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WHEREAS, in exchange for certain consideration to be paid by Purchaser
hereunder and under other similar agreements, Purchaser and Seller desire to
provide for the future acquisition, sale and delivery of the aggregate number of
shares of Common Stock contemplated to be delivered by Purchaser in respect of
the DECS on the Exchange Date, at a price to be established under this Agreement
and such other agreements;
WHEREAS, Seller has agreed to enter into a Collateral Agreement (the
"Collateral Agreement") to be dated as of , 1999, among Purchaser, Seller and
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The Bank of New York, as collateral agent (the "Collateral Agent"), to grant
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Purchaser a security interest in the shares of Common Stock specified therein
and in certain other circumstances certain other collateral to secure the
obligations of Seller hereunder;
WHEREAS, Purchaser has agreed, pursuant to an underwriting agreement,
dated , 1999 (the "Underwriting Agreement"), among Purchaser, Seller, the other
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entities named as "Sellers" therein (collectively, the "Other Sellers"), the
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Company, Xxxxxxx Xxxxx Xxxxxx Inc. and Xxxxxxx, Sachs & Co. (each an
"Underwriter", and collectively, the "Underwriters"), to issue and sell to the
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Underwriters an aggregate of 5,000,000 DECS (the "Initial DECS") and, at the
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Underwriters' option, up to 645,000 additional DECS (the "Additional DECS") to
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cover over-allotments, if any.
NOW, THEREFORE, in consideration of their mutual covenants herein
contained, the parties hereto, intending to be legally bound, hereby mutually
covenant and agree as follows:
DEFINITIONS
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As used herein, the following words and phrases shall have the
following meanings:
"Acceleration Date" has the meaning provided in Article VII.
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"Acceleration Value" has the meaning provided in Article VII.
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"Act" means the Securities Act of 1933, as amended, and the rules and
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regulations of the Commission promulgated thereunder.
"Additional DECS" has the meaning provided in the recitals of this
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Agreement.
"Additional Purchase Price" has the meaning provided in Section
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1.2(b).
["Additional Share Base Amount" means a number equal to the number of
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Additional DECS that the Underwriters elect to purchase under the Underwriting
Agreement.]
"Additional Shares" has the meaning provided in Section 1.1(b).
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["Additional STRIPS" means the U.S. Treasury obligations purchased by
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Purchaser for settlement on the Option Closing Date.]
"Adjustment Event" has the meaning provided in Section 6.2.
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"Administrator" means The Bank of New York, administrator for
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Purchaser under the Administration Agreement to be dated as of , 1999, or any
successor thereto.
"Affiliate" means, as to any Person, any other Person that, directly
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or indirectly, controls, is controlled by or is under common control with such
Person or is a partner in, or a trustee, settlor, beneficiary, member, manager,
director or officer of, such Person and, with respect to any Person that is a
natural person, further includes such Person's immediate family members,
including his father, mother, spouse and children, the spouses of his children,
his siblings and their spouses and children. For purposes of this definition,
"control" (including the terms "controlled by" or "under common control with")
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means, as to any Person, the possession, direct or indirect, of the power to
vote ten percent or more of the corporate or beneficial interests of such Person
(or of the securities having ordinary voting power for the election of directors
of such Person), or the power to direct or cause the direction of the management
and policies of such Person, whether through ownership of voting securities or
by contract or otherwise.
"Bankruptcy Code" has the meaning provided in Section 10.7.
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"Business Day" means any day that is not a Saturday, a Sunday or a day
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on which the NYSE or banking institutions or trust companies in The City of New
York are authorized or obligated by law or executive order to close.
"Calculation Period" means any period of Trading Days for which an
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average security price must be determined pursuant to this Agreement.
"Cash Delivery Option" has the meaning provided in Section 1.3(d).
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"Closing Price" means, for any security on any date of determination,
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(i) the closing sale price (or, if no closing price is reported, the last
reported sale price) of such security (regular way) on the NYSE on such date,
(ii) if such security is not listed for trading on the NYSE on any such date, as
listed in the composite transactions for the principal United States national
securities exchange on which such security is so listed, (iii) if such security
is not so listed on a United States national securities exchange, as reported by
The NASDAQ Stock Market, (iv) if such security is not so reported, as reported
in the composite transactions for the principal United States regional
securities exchange on which such security is so listed, (v) if such security is
not so listed on a United States regional security exchange, the last quoted bid
price for such security in the over-the-counter market as reported by the
National Quotation Bureau or similar organization or (vi) if such security is
not so quoted, the average of the mid-point of the last bid and ask prices for
such security from at least three nationally recognized investment banking firms
selected by the Administrator for such purpose. The Closing Price as determined
pursuant to the foregoing shall be subject to adjustment in certain
circumstances as provided in Section 6.1(c).
"Collateral" has the meaning provided in the Collateral Agreement.
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"Collateral Agent" has the meaning provided in the recitals of this
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Agreement.
"Collateral Agreement" has the meaning provided in the recitals of
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this Agreement.
"Commission" means the Securities and Exchange Commission.
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"Common Stock" has the meaning provided in the recitals of this
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Agreement.
"Company" has the meaning provided in the recitals of this Agreement.
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"Contract Shares" has the meaning provided in Section 1.1.
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"Custodian" means The Bank of New York, custodian for Purchaser under
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the Custodian Agreement dated as of , 1999, or any successor thereto.
"Declaration of Trust" has the meaning provided in the introductory
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paragraph of this Agreement.
"DECS" has the meaning provided in the recitals of this Agreement.
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"Dilution Adjustment" means any fraction or number by which the
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Exchange Rate shall be multiplied pursuant to Section 6.1(a) or (b) or by which
Closing Prices may be divided pursuant to Section 6.1(c).
"Event of Default" has the meaning provided in Article VII.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the Commission promulgated thereunder.
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"Exchange Date" means , 2002, subject to (i) extension by Seller
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pursuant to Section 1.3(f) and (ii) subsequent acceleration by Seller pursuant
to Section 1.3(g).
"Exchange Price" means the average Closing Price per share of Common
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Stock on the 20 Trading Days immediately prior to (but not including) the
Exchange Date; provided, however, that if there are not 20 Trading Days for the
Common Stock occurring later than the 60th calendar day immediately prior to,
but not including, the Exchange Date, Exchange Price shall mean the market value
per share of the Common Stock as of the Exchange Date as determined by a
nationally recognized independent investment banking firm retained for this
purpose by the Administrator; provided that for purposes of determining the
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payment required upon cash settlement of this Agreement in connection with a
Rollover Offering, "Exchange Price" means the Closing Price per share of Common
Stock on the Trading Day immediately preceding the date that the Rollover
Offering is priced (the "Pricing Date") or, if the Rollover Offering is priced
after 4:00 p.m., New York City time, on the Pricing Date, the Closing Price per
share of Common Stock on the Pricing Date. The Exchange Price as determined
pursuant to the foregoing shall be subject to adjustment in certain
circumstances as provided in Section 6.1(c).
"Exchange Rate" has the meaning provided in Section 1.1(c).
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"Firm Payment Date" has the meaning provided in Section 1.3(a).
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"Firm Purchase Price" has the meaning provided in Section 1.2(a).
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"Firm Share Base Amount" has the meaning provided in Section 1.1(a).
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"Firm Shares" has the meaning provided in Section 1.1(a).
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"Forward Purchase Contract Characterization" has the meaning provided
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in Section 5.2(a).
"Independent Dealers" has the meaning provided in Article VII.
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"Initial DECS" has the meaning provided in the recitals of this
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Agreement.
"Initial Price" has the meaning provided in Section 1.1(c).
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"Lien" has the meaning provided in the Collateral Agreement.
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"Market Price" means, as of any date of determination, the average
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Closing Price per share of Common Stock on the 20 Trading Days immediately prior
to (but not including) the date of determination; provided, however, that if
there are not 20 Trading Days for the Common Stock occurring later than the 60th
calendar day immediately prior to, but not including, such date, the Market
Price shall mean the market value per share of Common Stock as of such date as
determined by a nationally recognized investment banking firm retained for such
purpose by the Administrator.
"NYSE" means the New York Stock Exchange Inc.
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"Officer" shall mean the manager, trustee, president, any vice
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president, the chief financial officer, the treasurer or the secretary of a
Person.
"Officer's Certificate" means a certificate signed by an Officer of a
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Person.
"Opinion of Counsel" means a written opinion from legal counsel who is
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acceptable to the Trust.
"Option Closing Date" means the settlement dates for the Additional
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DECS under Section 5 of the Underwriting Agreement.
"Ordinary Cash Dividend" means, with respect to any consecutive 365-
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day period, any dividend with respect to Common Stock paid in cash to the extent
that the amount of such dividend, together with the aggregate amount of all
other dividends on the Common Stock paid in cash during such 365-day period,
does not exceed on a per share basis 10% of the average of the Closing Prices of
the Common Stock over such 365-day period; provided that, for purposes of the
foregoing definition, the amount of cash dividends paid on a per share basis
shall be appropriately adjusted to reflect the occurrence during such period of
any event described in Article VI.
"Other Rollover Seller" has the meaning provided in Section 1.3(e).
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"Person" means an individual, partnership, corporation (including a
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business trust), joint stock company, trust, unincorporated association, limited
liability company, joint venture or other entity, or a government or any
political subdivision or agency thereof.
"Purchaser" has the meaning provided in the introductory paragraph of
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this Agreement.
"Reimbursement Agreement" means the reimbursement agreement, to be
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dated as of , 1999 among Xxxxxxx Xxxxx Xxxxxx Inc. and the Sellers.
"Reported Securities" has the meaning provided in Section 6.2.
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"Rollover Offering" means a reoffering or refinancing of the DECS
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effected by the Seller or Sellers not earlier than , 2002 by means of a
completed public offering or offerings or another similar offering (which may
include one or more exchange offers), by or on behalf of such Seller or Sellers.
"Rollover Offering Election" means a written election made in
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accordance with Section 1.3(e).
"Seller" and "Sellers" have the meaning provided in the introductory
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paragraph of this Agreement.
"Threshold Appreciation Price" has the meaning provided in Section
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1.1(c).
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"Trading Day" means, with respect to any security the Closing Price of
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which is being determined, a day on which such security (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 such security.
"Transaction Value" has the meaning provided in Section 6.2.
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"Underwriter" and "Underwriters" have the meaning provided in the
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recitals of this Agreement.
"Underwriting Agreement" has the meaning provided in the recitals of
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this Agreement.
ARTICLE I
SALE AND PURCHASE
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1.1 Sale and Purchase.
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(a) Firm Shares. Upon the terms and subject to the conditions of this
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Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase
and acquire from Seller, the number of shares of Common Stock (the "Firm
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Shares") equal to the product of ____________ (the "Firm Share Base Amount") and
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the Exchange Rate.
[(b) Additional Shares. Upon the terms and subject to the conditions
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of this Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to
purchase and acquire from Seller, a number of additional shares of Common Stock
(the "Additional Shares") equal to the product of the Additional Share Base
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Amount and the Exchange Rate. In addition to the other conditions set forth
herein, such purchase and sale shall be conditioned on the Underwriters'
purchase of the Additional Share Base Amount of Additional DECS pursuant to the
Underwriting Agreement on the Option Closing Date. Promptly after receipt by
Purchaser of notice that the Underwriters are exercising their option to
purchase Additional DECS, Purchaser will provide Seller with written notice of
such exercise by the Underwriters, stating the related Additional Share Base
Amount and the date on which Purchaser shall deliver the purchase price for the
Additional Shares, which shall be the Option Closing Date for the Additional
DECS. The Firm Shares and the Additional Shares (if any) are collectively
referred to herein as the "Contract Shares."]
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(c) Exchange Rate. The "Exchange Rate" shall be determined in
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accordance with the following formula, subject to adjustment as a result of
certain events as provided in Article VI: (i) if the Exchange Price is greater
than $ (the "Threshold Appreciation Price"), , (ii) if the Exchange Price is
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less than or equal to the Threshold Appreciation Price but greater than $ (the
"Initial Price"), a fraction (rounded upward or downward to the nearest
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1/10,000th or, if there is not a nearest 1/10,000th, to the next higher
1/10,000th) equal to the Initial Price
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divided by the Exchange Price and (iii) if the Exchange Price is less than or
equal to the Initial Price, 1.
1.2 Purchase Price.
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(a) Firm Purchase Price. The purchase price for the Firm Shares (the
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"Firm Purchase Price") shall be $[Y x Firm Share Base Amount] in cash.
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[(b) Additional Purchase Price. The purchase price for the
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Additional Shares (the "Additional Purchase Price") shall be an amount equal to
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(i) the difference between (1) the aggregate proceeds to Purchaser from the sale
of the Additional DECS and (2) the aggregate cost to Purchaser, as notified by
Purchaser to Seller on the Option Closing Date for the Additional DECS, of the
Additional STRIPS, multiplied by (ii) a fraction, the numerator of which is the
Firm Share Base Amount and the denominator of which is the number of Initial
DECS purchased by the Underwriters under the Underwriting Agreement.]
1.3 Payment for and Delivery of Contract Shares.
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(a) Firm Payment Date. Upon the terms and subject to the conditions
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of this Agreement, Purchaser shall deliver to Seller the Firm Purchase Price on
, 1999 (the "Firm Payment Date") at the offices of Cleary, Gottlieb, Xxxxx &
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Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by Purchaser and Seller, paid by wire transfer of Federal
(immediately available same-day) funds to an account designated by Seller,
against delivery by Seller to the Collateral Agent of the number of shares of
Common Stock and/or cash, securities and other property necessary to comply with
Seller's obligations under the Collateral Agreement.
(b) Option Closing Date. Upon the terms and subject to the conditions
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of this Agreement, Purchaser shall deliver to Seller the Additional Purchase
Price on the Option Closing Date at the offices of Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed
upon by Purchaser and Seller, paid by wire transfer of Federal (immediately
available same-day) funds to an account designated by Seller, against delivery
by Seller to the Collateral Agent of the additional number of shares of Common
Stock and/or cash, securities and other property necessary to comply with
Seller's obligations under the Collateral Agreement.
(c) Delivery of Contract Shares.
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(i) Seller agrees to deliver the Contract Shares to Purchaser on the
Exchange Date. Seller shall be deemed to have instructed the Collateral
Agent to deliver to the Custodian, for the account of Purchaser, shares of
Common Stock then held by the Collateral Agent as collateral under the
Collateral Agreement, in an amount equal to the number of Contract Shares,
rounded down to the nearest whole number. Instead of any fractional shares
of Common Stock that would otherwise be deliverable (prior to rounding) to
Purchaser at the Exchange Date, Seller agrees to make a cash payment in
respect of such fractional shares of Common Stock in an amount equal to the
value thereof at the Exchange Price. Notwithstanding the foregoing, if an
Adjustment Event shall have occurred prior to the Exchange Date then, in
lieu of the foregoing, Seller shall
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be deemed to have instructed: (A) in the case of any cash required to be
delivered on the Exchange Date as provided in Section 6.2, the Collateral
Agent to wire transfer Federal (immediately available same-day) funds to an
account designated by Purchaser; and (B) in the case of any Reported
Securities required to be delivered by Seller in lieu of cash as provided
in Section 6.2, the Collateral Agent to deliver to the Custodian, for the
account of Purchaser, a specified number of Reported Securities then held
as collateral under the Collateral Agreement, as provided in Section 6(g)
of the Collateral Agreement.
(ii) [In the event that by the Exchange Date any substitute collateral
has not been replaced by shares of Common Stock (and/or, after an
Adjustment Event, cash or Reported Securities) sufficient to meet Seller's
obligations hereunder, delivery shall be effected by delivery by the
Collateral Agent to the Custodian, for the account of Purchaser, of the
market value of the shares of Common Stock required to be delivered
hereunder, in the form of any shares of Common Stock then pledged by Seller
plus cash generated from the liquidation of U.S. Government obligations
then pledged by Seller (and/or, after an Adjustment Event, the market value
of the alternative consideration required to be delivered hereunder, in the
form of any Reported Securities then pledged, plus any cash then pledged,
plus cash generated from the liquidation of U.S. Government obligations
then pledged). In such event, Seller shall be deemed to have instructed
the Collateral Agent to liquidate and turn into cash the U.S. Government
obligations then pledged by Seller to the extent necessary to satisfy
Seller's obligations hereunder.]
(iii) Certificates representing Common Stock (or Reported Securities)
in registered form that are part of the Contract Shares shall be registered
in Purchaser's name or in the name of a depositary or a nominee of a
depositary as requested by Purchaser, unless such Common Stock (and/or
Reported Securities) is represented by one or more global certificates
registered in the name of a depositary or a nominee of a depositary or are
book entry securities, in which event Purchaser's interest in such
securities shall be noted in a manner satisfactory to Purchaser and its
counsel.
(iv) Seller's right to deliver (or cause to be delivered) to Purchaser
hereunder Common Stock and Reported Securities shall be conditioned upon
such Common Stock and Reported Securities to be so delivered being
transferable (i) by Seller to Purchaser in accordance with the provisions
hereof and in accordance with the terms of any agreement among shareholders
applicable to such Common Stock or Reported Securities, and (ii) by
Purchaser, following receipt from Seller, without any restrictions not
generally applicable to all holders of such Common Stock or Reported
Securities, as the case may be. If the conditions set forth in the
preceding sentence shall not be satisfied with respect to any Common Stock
or Reported Securities to be delivered by Seller, then, notwithstanding the
provisions hereof, Seller shall exercise the Cash Delivery Option.
(d) Cash Delivery Option. At its option, Seller may deliver to
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Purchaser on the Exchange Date, in lieu of the Contract Shares, an amount in
cash equal to, subject to adjustment as provided in Section 6.2, the Exchange
Price of the Contract Shares (the "Cash Delivery Option"), paid by wire transfer
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to an account designated by Purchaser, in Federal (immediately available same-
day) funds; provided that in connection with a Rollover Offering which is
consummated and as to which Seller has duly elected the Cash Delivery Option and
has
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duly made a Rollover Offering Election, such cash payment shall be made no later
than the fifth Business Day after the Exchange Date. Seller may elect the Cash
Delivery Option in respect of all, but not less than all, Contract Shares and
may do so by notice to Purchaser, the Collateral Agent and the Custodian not
less than 25 Business Days prior to the Exchange Date. If Seller elects the Cash
Delivery Option and so notifies Purchaser, Purchaser shall promptly notify The
Depository Trust Company and publish a notice in a daily newspaper of national
circulation stating whether the holders of DECS will receive shares of Common
Stock, cash or a combination thereof (and specifying whether any such cash
settlement is being made in connection with a Rollover Offering) and, if a
combination of Common Stock and cash, the relative proportion of each.
(e) Rollover Offering Election. The provisions of Sections 1.3(f)
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and (g) shall be applicable if the Seller has made a Rollover Offering Election
by written notice given to the Purchaser not earlier than , 2002 and
not later than , 2002. Any Rollover Offering Election (i) shall be
irrevocable once made, (ii) may be made only if the Seller has also elected, or
simultaneously elects, the Cash Delivery Option, (iii) shall be effective only
if each Seller electing the Cash Delivery Option (as defined in the forward
purchase agreements dated as of the date hereof between such Sellers and the
Purchaser) also makes a Rollover Offering Election pursuant to such forward
purchase agreements (each such other seller, an "Other Rollover Seller") and
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(iv) may be made only as to all, but not less than all, Contract Shares.
(f) Extension of Exchange Date. At its option, Seller may, by notice
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given to Purchaser not earlier than , 2002 and not later than , 2002, elect to
extend the Exchange Date to , 2002, provided that such extension shall be
effective (i) only in connection with a Rollover Offering as to which the Seller
shall have duly made a Rollover Offering Election, (ii) only if Seller shall
have delivered to the Collateral Agent, in pledge under the Collateral Agreement
direct obligations of the United States of America which through the scheduled
payment of principal and interest in accordance with their terms will provide,
not later than one Business Day before , 2002, money in an amount equal to not
less than the product of (1) $______ [the aggregate interest due on all Initial
DECS for the maximum extension period] and (2) a fraction, the numerator of
which is the sum of the Firm Share Base Amount and the Additional Share Base
Amount and the denominator of which is the number of Initial DECS (the
"Additional Government Securities") and (iii) only if each Other Rollover
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Seller, if any, has previously or simultaneously elected to extend the Exchange
Date (as such term is defined in the forward purchase agreement dated as of the
date hereof between such Other Seller and the Purchaser) to the same date as is
elected by the Seller hereunder. Unless Seller has duly elected, in connection
with a Rollover Offering, to accelerate the Exchange Date in accordance with
Section 1.3(g) hereof, Seller shall on such extended Exchange Date pay to
Purchaser by wire transfer of Federal (immediately available same-day) funds an
amount equal to not less than the product of (1) $_______ [ the aggregate
interest payable for the 3-month extension period on the Initial DECS] and (2) a
fraction, the numerator of which is the sum of the Firm Share Base Amount and
the Additional Share Base Amount and the denominator of which is the number of
Initial DECS.
In addition, Seller hereby covenants and agrees to take all other
actions necessary to cause Purchaser to be a protected purchaser of such
Additional Government Securities, within the meaning of Article 8 of the New
York Uniform Commercial Code, as amended.
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If Seller elects to extend the Exchange Date and so notifies
Purchaser, Purchaser shall promptly notify the Depository Trust Company and
publish a notice in a daily newspaper of national circulation stating that the
Seller has elected to extend the Exchange Date.
(g) Acceleration of Exchange Date. At any time after the Exchange
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Date has been extended pursuant to Section 1.3(f) hereof, Seller may, at its
option but only in connection with the consummation of a Rollover Offering,
accelerate the Exchange Date to any date on or after , 2002, by notice to
Purchaser not later than a.m. on the date to which the Exchange Date is
accelerated; provided that such acceleration shall be effective only if (i) each
Other Seller, if any, has previously or simultaneously elected to accelerate the
Exchange Date (as such term is defined in the forward purchase agreement dated
as of the date hereof between such Other Seller and the Purchaser), and (ii) at
or prior to a.m. on such accelerated Exchange Date, Seller has paid to
Purchaser, by wire transfer to an account designated by Purchaser, in Federal
(immediately available same-day) funds, an amount equal to not less than the
product of (1) $____________ [the aggregate interest payable for the extension
period on the Initial DECS per day] times the number of days in the period from
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(and including) , 2002 to (but excluding) the Exchange Date as accelerated,
calculated on the basis of a 360 day year consistency of twelve 30-day months
and (2) a fraction, the numerator of which is the sum of the Firm Share Base
Amount and the Additional Share Base Amount and the denominator of which is the
number of Initial DECS.
If Seller elects to accelerate the Exchange Date and so notifies
Purchaser, Purchaser shall provide notice of such election to the holders of the
DECS not later than the accelerated Exchange Date.
(h) Seller represents, and Purchaser acknowledges, that it is Seller's
current intention to deliver Contract Shares to the Purchaser on the Exchange
Date and not to exercise the Cash Delivery Option; however, Seller intends to
consider all relevant economic, market and business factors in ultimately
determining whether to deliver Contract Shares on the Exchange Date or to
exercise the Cash Delivery Option.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
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(a) Seller represents and warrants to Purchaser that each
representation and warranty made by Seller in Section 3 of the Underwriting
Agreement is true and correct on the date hereof.
(b) Seller further represents that:
[Note: Further representations and warranties to come, if
appropriate, based on limitations on Seller(s) as single purpose vehicle,
etc.]
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
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Purchaser represents and warrants to Seller that:
(a) each representation and warranty made by Purchaser in Section 1
of the Underwriting Agreement is true and correct on the date hereof ; and
(b) it acknowledges that the Common Stock delivered pursuant to this
Agreement and the Collateral Agreement may contain one or more of the type of
legends referred to in Section 3(e) of the Collateral Agreement (which legend
(i) will not be applicable to the delivery of any such Common Stock to the Trust
pursuant to this Agreement and the Collateral Agreement or to the delivery of
any such Common Stock by the Trust to the holders of DECS pursuant to the DECS
and (ii) will be removed at the request of the Collateral Agent to the transfer
agent for the Common Stock prior to any such delivery to holders of DECS).
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
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(a) The obligation of Purchaser to deliver the Firm Purchase Price on
the Firm Payment Date is subject to the satisfaction of the following
conditions:
(i) the purchase by the Underwriters of the Initial DECS pursuant to
the Underwriting Agreement shall have been consummated as contemplated
under the Underwriting Agreement;
(ii) the representations and warranties of the Seller contained in
Article II hereof shall be true and correct as of the Firm Payment Date;
(iii) the Collateral Agreement shall have been executed by the Seller
and the delivery of the Collateral thereunder shall have been made; and
(iv) each Other Seller shall have executed and delivered a forward
purchase contract dated as of the date hereof between such Other Seller and
Purchaser;
(v) each Other Seller shall have executed and delivered a collateral
agreement dated as of the date hereof among such Other Seller, the
Purchaser and the collateral agent;
(vi) the Reimbursement Agreement shall have been executed by the
Sellers.
(b) The obligation of Purchaser to deliver the Additional Purchase
Price on the Option Closing Date is subject to the satisfaction of the following
conditions:
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(i) the purchase by the Underwriters of the Additional DECS pursuant
to the Underwriting Agreement shall have been consummated as contemplated
under the Underwriting Agreement;
(ii) the representations and warranties of the Seller contained in
Article II hereof shall be true and correct as of the Option Closing Date;
and
(iii) the delivery of any additional Collateral under the Collateral
Agreement shall have been made.
ARTICLE V
COVENANTS
---------
5.1 Taxes. Seller shall pay any and all documentary, stamp, transfer
-----
or similar taxes and charges that may be payable in respect of the entry into
this Agreement and the transfer and delivery of the Contract Shares, cash or
Reported Securities pursuant hereto.
5.2 Forward Purchase Contract. Each of Purchaser and Seller hereby
-------------------------
agrees that
(a) it will treat this Agreement in its entirety as a forward purchase
contract for the delivery of the Contract Shares on the Exchange Date (including
as a result of acceleration or otherwise) (the "Forward Purchase Contract
Characterization"), under the terms of which contract (i) at the time of
issuance of the DECS Purchaser deposits irrevocably with Seller a fixed amount
of cash equal to the Firm Purchase Price (plus, if the Underwriters exercise
their option to purchase Additional DECS, the Additional Purchase Price) to
assure the fulfillment of Purchaser's purchase obligation described in clause
(ii) below, which deposit will unconditionally and irrevocably be applied at the
Exchange Date to satisfy such obligation and (ii) at the Exchange Date such cash
deposit unconditionally and irrevocably will be applied by Seller in full
satisfaction of Purchaser's obligation under the forward purchase contract, and
Seller will deliver to Purchaser the number of Contract Shares that Purchaser is
entitled to receive at that time pursuant to the terms of this Agreement
(subject to Seller's right to deliver cash and/or other property as provided in
this Agreement in lieu of the Contract Shares);
(b) it will treat, consistent with the above characterization, amounts
paid to Seller in respect of this Agreement as allocable in their entirety to
the amount of the cash deposit attributable to such Agreement;
(c) it will not treat this Agreement, any portion of this Agreement or
any obligation hereunder as giving rise to any interest income or other
inclusions of ordinary income (in the case of Purchaser) or as giving rise to
any interest expense or other deductions of ordinary expense (in the case of
Seller);
13
(d) it will not treat the delivery of any portion of the Contract
Shares, cash or Reported Securities to be delivered pursuant to this Agreement
as the payment of interest or ordinary income; and
(e) it will not take any action (including filing any tax return or
form or taking any position in any tax proceeding) that is inconsistent with the
obligations contained in clauses (a) through (d), unless such action or position
is required by an applicable taxing authority or unless such action or position
is required by a change in statutory law or regulation or by a judicial or other
authoritative interpretation of the law enacted, promulgated or published after
the date of this Agreement.
5.3 Limitations on Trading During Certain Days. Seller hereby agrees
------------------------------------------
that it will not, and will cause each of its Affiliates that is under its
control not to, buy or sell shares of Common Stock of the Company or Reported
Securities for its own account during the 60 days prior to the Exchange Date.
5.4 Notices. Seller will cause to be delivered to Purchaser:
-------
(a) Immediately upon the occurrence of any Event of Default hereunder
or under the Collateral Agreement; and
(b) In case at any time prior to the Exchange Date Seller receives
notice, or otherwise obtains knowledge, that any event requiring that an
adjustment be effected pursuant to Article VI hereof shall have occurred or be
pending, then Seller shall promptly cause to be delivered to Purchaser a notice
identifying such event and stating, if known to Seller, the date on which such
event is to occur and, if applicable, the record date relating to such event.
Seller shall cause further notices to be delivered to Purchaser if Seller shall
subsequently receive notice, or shall otherwise obtain knowledge, of any further
or revised information regarding the terms or timing of such event or any record
date relating thereto.
5.5. Affirmative Covenants. During the term of this Agreement,
---------------------
Seller covenants and agrees that it will:
(a) Comply in all material respects with all applicable laws, rules,
regulations and orders to the extent noncompliance would have a material adverse
effect on the ability of any Seller to perform its obligations hereunder or
under the Collateral Agreement, such compliance to include, without limitation,
paying before the same become delinquent all taxes, assessments and governmental
charges imposed upon Seller or upon Seller's property, including the collateral
pledged under the Collateral Agreement, except to the extent contested in good
faith.
(b) Furnish to Purchaser as soon as possible and in any event within
twenty calendar days after Seller shall become aware of the occurrence of any
failure by Seller to comply with or perform any agreement or obligation
contained in this Agreement or the Collateral Agreement, a statement of Seller
describing such failure and setting forth details of such failure and the action
which Seller has taken and proposes to take with respect thereto.
5.6 Negative Covenants of Seller. During the term of this Agreement,
----------------------------
Seller will not:
14
[Note: Covenants to come, if appropriate, based on limitations on
Seller(s) as single purpose vehicle, etc.]
5.7 Further Assurances. From time to time on and after the date
------------------
hereof through the Exchange Date (or, if later, the date on which this Agreement
has been fully performed), each of the parties hereto shall use its reasonable
best efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper and advisable to consummate and make
effective as promptly as practicable the transactions contemplated by this
Agreement in accordance with the terms and conditions hereof, including (i)
using reasonable best efforts to remove any legal impediment to the consummation
of such transactions and (ii) the execution and delivery of all such deeds,
agreements, assignments and further instruments of transfer and conveyance
necessary, proper or advisable to consummate and make effective the transactions
contemplated by the Agreement in accordance with the terms and conditions
hereof.
ARTICLE VI
ADJUSTMENT OF EXCHANGE RATE, EXCHANGE PRICE AND CLOSING PRICE
-------------------------------------------------------------
6.1 Dilution Adjustments. The Exchange Rate, Exchange Price and
--------------------
Closing Price shall be subject to adjustment successively from time to time as
follows:
(a) Stock Dividends, Splits, Reclassifications, Etc. If the Company
-----------------------------------------------
shall, after the date hereof,
(i) pay a stock dividend or make a distribution, in either case, with
respect to Common Stock in shares of such stock;
(ii) subdivide or split its outstanding shares of Common Stock into a
greater number of shares;
(iii) combine its outstanding shares of Common Stock into a smaller
number of shares; or
(iv) issue by reclassification (other than a reclassification pursuant
to clause (b), (c), (d) or (e) of the definition of Adjustment Event) of
its shares of Common Stock any other equity securities of the Company;
then, in each such case, the Exchange Rate shall be multiplied by a Dilution
Adjustment equal to the number of shares of common stock (or the fraction
thereof) that a holder who held one share of Common Stock immediately prior to
such event would be entitled solely by reason of such event to hold immediately
after such event. In the case of the reclassification of any shares of Common
Stock into any other equity securities of the Company other than the Common
Stock, such other equity securities shall be deemed shares of Common Stock for
all purposes hereunder. The Exchange Price and Closing Price shall also be
adjusted in the manner described in paragraph (c).
15
(b) Right or Warrant Issuances. If the Company shall, after the date
--------------------------
hereof, issue, or declare a record date in respect of an issuance of, rights or
warrants (other than rights to purchase Common Stock pursuant to a plan for the
reinvestment of dividends or interest) to all holders of Common Stock entitling
them to subscribe for or purchase shares of Common Stock at a price per share
less than the Market Price of the Common Stock on the Business Day next
following the record date for the determination of holders of Common Stock
entitled to receive such rights or warrants, then, in each such case, the
Exchange Rate shall be multiplied by the following Dilution Adjustment: a
fraction, of which the numerator shall be (A) the number of shares of Common
Stock outstanding on the record date for the issuance of such rights or warrants
plus (B) the number of additional shares of Common Stock offered for
subscription or purchase pursuant to such rights or warrants, and of which the
denominator shall be (x) the number of shares of Common Stock outstanding on the
record date for the issuance of such rights or warrants plus (y) the number
specified in clause (B) above multiplied by the quotient of the exercise price
of such rights or warrants divided by the Market Price of the Common Stock on
the Business Day next following the record date for the determination of holders
of Common Stock entitled to receive such rights or warrants. To the extent that
such rights or warrants expire prior to the Exchange Date and shares of Common
Stock are delivered with respect to less than all of such rights or warrants
prior to such expiration, the Exchange Rate shall be readjusted to the Exchange
Rate which would then be in effect had such adjustments for the issuance of such
rights or warrants been made upon the basis of delivery of only the number of
shares of Common Stock actually delivered pursuant to such rights or warrants.
The Exchange Price and Closing Price shall also be adjusted in the manner
described in paragraph (c).
(c) Corresponding Adjustments to Exchange Price; Adjustment of Closing
------------------------------------------------------------------
Price in Certain Circumstances.
------------------------------
(i) If any adjustment is made to the Exchange Rate pursuant to
paragraph (a) or (b) of this Section 6.1, an adjustment shall also be made
to the Exchange Price as such term is used throughout the definition of
Exchange Rate. The required adjustment to the Exchange Price shall be made
at the Exchange Date by multiplying the Exchange Price by the cumulative
Dilution Adjustment.
(ii) If, during any Calculation Period used in calculating the
Exchange Price, the Market Price or the Transaction Value, there shall
occur any event requiring an adjustment to be effected pursuant to this
Section 6.1, then the Closing Price for each Trading Day in the Calculation
Period occurring prior to the day on which such adjustment is effected
shall be adjusted by being divided by the relevant Dilution Adjustment.
(d) Timing of Dilution Adjustments. Each Dilution Adjustment shall be
------------------------------
effected:
(i) in the case of any dividend, distribution, or issuance of rights
or warrants, at the opening of business on the Business Day next following
the record date for determination of holders of Common Stock entitled to
receive such dividend, distribution or issuance or, if the announcement of
any such dividend, distribution or issuance is after
16
such record date, at the time such dividend, distribution or issuance shall
be announced by the Company; and
(ii) in the case of any subdivision, split, combination or
reclassification, on the effective date of such transaction.
(e) General; Failure of Dilution Event to Occur. All Dilution
-------------------------------------------
Adjustments shall be rounded upward or downward to the nearest 1/10,000th (or if
there is not a nearest 1/10,000th to the next higher 1/10,000th). No adjustment
in the Exchange Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent therein; provided, however, that
any adjustments which by reason of this sentence are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
If any announcement or declaration of a record date in respect of a dividend,
distribution or issuance requiring an adjustment pursuant to this Section 6.1
shall subsequently be canceled by the Company, or such dividend, distribution or
issuance shall fail to receive requisite approvals or shall fail to occur for
any other reason, then, upon such cancellation, failure of approval or failure
to occur, the Exchange Rate shall be readjusted to the Exchange Rate which would
then have been in effect had adjustment for such event not been made. If an
Adjustment Event shall occur after the occurrence of one or more events
requiring an adjustment pursuant to this Section 6.1, the Dilution Adjustments
previously applied to the Exchange Rate in respect of such events shall not be
rescinded but shall be applied to the new Exchange Rate provided for under
Section 6.2.
6.2 Adjustment for Consolidation, Merger or Other Adjustment Event.
--------------------------------------------------------------
In the event of (a) any dividend or distribution by the Company to all holders
of Common Stock of evidences of its indebtedness or other assets (excluding any
dividends or distributions referred to in Section 6.1(a)(i), any other equity
securities issued pursuant to a reclassification referred to in Section
6.1(a)(iv) and any Ordinary Cash Dividends) or any issuance by the Company to
all holders of Common Stock of rights or warrants to subscribe for or purchase
any of its securities (other than rights or warrants referred to in Section
6.1(b)), (b) any consolidation or merger of the Company with or into another
entity (other than a merger or consolidation in which the Company is the
continuing corporation and in which the Common Stock outstanding immediately
prior to the merger or consolidation is not exchanged for cash, securities or
other property of the Company or another corporation), (c) any sale, transfer,
lease or conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, (d) any statutory exchange of
securities of the Company with another corporation (other than in connection
with a merger or acquisition) or (e) any liquidation, dissolution or winding up
of the Company (any such event described in clause (a), (b), (c), (d) or (e), an
"Adjustment Event"), the Exchange Rate shall be adjusted so that on the Exchange
----------------
Date Seller shall deliver to Purchaser, in lieu of or (in the case of an
Adjustment Event described in clause (a) above) in addition to, the Contract
Shares, cash in an amount equal to:
(A) if the Exchange Price is greater than the Threshold Appreciation
Price, multiplied by the Transaction Value (as defined below);
17
(B) if the Exchange Price is less than or equal to the Threshold
Appreciation Price but greater than the Initial Price, the product of
(x) the Initial Price divided by the Exchange Price multiplied by (y)
the Transaction Value; and
(C) if the Exchange Price is less than or equal to the Initial Price, the
Transaction Value;
provided, however, that if the consideration received by all holders
-------- -------
of Common Stock in such Adjustment Event does not and may not at the option of
such holders include Reported Securities, then (except in the case of an
Adjustment Event solely of the type described in clause (a) above) (i) Seller's
delivery obligations hereunder will be accelerated and promptly upon
consummation of the Adjustment Event Seller will be required to deliver to
Purchaser cash in an amount equal to (x) if the Transaction Value is greater
than the Threshold Appreciation Price, multiplied by the Transaction Value,
(y) if the Transaction Value is less than or equal to the Threshold Appreciation
Price but greater than Initial Price, the Initial Price, and (z) if the
Transaction Value is less than or equal to the Initial Price, the Transaction
Value.
Following an Adjustment Event, the Exchange Price, as such term is
used throughout the definition of Exchange Rate, shall be deemed to equal (A) if
shares of Common Stock are outstanding at the Exchange Date, the Exchange Price
of the Common Stock, as adjusted pursuant to Section 6.1(c), otherwise zero,
plus (B) the Transaction Value.
Notwithstanding the foregoing, with respect to any Reported Securities
(as defined below) received by holders of Common Stock in an Adjustment Event,
Seller shall, in lieu of delivering cash in respect of such Reported Securities
as described above, deliver a number of such Reported Securities with a value,
as determined in accordance with clause (ii) of the definition of Transaction
Value, equal to all cash amounts that would otherwise be deliverable in respect
of Reported Securities received in such Adjustment Event, unless Seller has made
an election to exercise the Cash Delivery Option or such Reported Securities
have not yet been delivered to the holders entitled thereto following such
Adjustment Event or any record date with respect thereto. If, following any
Adjustment Event, any Reported Security ceases to qualify as a Reported
Security, then (x) Seller shall not deliver such Reported Security but instead
shall deliver of an equivalent amount of cash and (y) notwithstanding clause
(ii) of the definition of Transaction Value, the Transaction Value of such
Reported Security shall mean the fair market value of such Reported Security on
the date such security ceases to qualify as a Reported Security, as determined
by a nationally recognized investment banking firm retained for this purpose by
the Administrator.
"Transaction Value" means (i) for any cash received in any Adjustment
-----------------
Event, the amount of cash received per share of Common Stock, (ii) for any
Reported Securities received in any Adjustment Event, an amount equal to (x) the
average Closing Price per security of such Reported Securities on the 20 Trading
Days immediately prior to (but not including) the Exchange Date multiplied by
(y) the number of such Reported Securities (as adjusted pursuant to the
definition thereof) received per share of Common Stock and (iii) for any
property received in any Adjustment Event other than cash or Reported
Securities, an amount equal to the fair market value of the property received
per share of Common Stock on the date such property is received, as determined
by a nationally recognized investment banking firm retained for this purpose by
18
the Administrator; provided, however, that in the case of clause (ii), (x) with
respect to securities that are Reported Securities by virtue of only clause (iv)
of the definition of Reported Securities, Transaction Value with respect to any
such Reported Security means the average of the mid-point of the last bid and
ask prices for such Reported Security as of the Exchange Date from each of at
least three nationally recognized investment banking firms retained for such
purpose by the Administrator multiplied by the number of such Reported
Securities (as adjusted pursuant to the definition thereof) received per share
of Common Stock and (y) with respect to all other Reported Securities, if there
are not 20 Trading Days for any particular Reported Security occurring after the
60th calendar day immediately prior to, but not including, the Exchange Date,
Transaction Value with respect to such Reported Security means the fair market
value per security of such Reported Security as of the Exchange Date as
determined by a nationally recognized investment banking firm retained for such
purpose by the Administrator multiplied by the number of such Reported
Securities (as adjusted pursuant to the definition thereof) received per share
of Common Stock. For purposes of calculating the Transaction Value, any cash,
Reported Securities or other property receivable in an Adjustment Event shall be
deemed to have been received immediately prior to the close of business on the
record date for such Adjustment Event or, if there is no record date for such
Adjustment Event, immediately prior to the close of business on the effective
date of such Adjustment Event.
"Reported Securities" means any securities received in an Adjustment
-------------------
Event that (A) are (i) listed on a United States national securities exchange,
(ii) reported on a United States national securities system subject to last sale
reporting, (iii) traded in the over-the-counter market and reported on the
National Quotation Bureau or similar organization or (iv) for which bid and ask
prices are available from at least three nationally recognized investment
banking firms and (B) are either (x) perpetual equity securities or (y) non-
perpetual equity or debt securities with a stated maturity after the Exchange
Date. The number of shares of any Reported Securities included in the
calculation of Transaction Value pursuant to clause (ii) of the definition
thereof shall be subject to adjustment if any event that would, had it occurred
with respect to the Common Stock or the Company, have required an adjustment
pursuant to Section 6.1 or 6.2, shall occur with respect to such Reported
Securities or the issuer thereof subsequent to the date the Adjustment Event is
consummated. Adjustment for such subsequent events shall be as nearly
equivalent as practicable to the adjustments provided for in Section 6.1 or 6.2,
as applicable.
ARTICLE VII
ACCELERATION
------------
If one or more of the following events (each an "Event of Default")
----------------
shall occur:
(a) Seller or any Other Seller shall commence a voluntary case or
other proceeding seeking a liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or
19
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall take any action to authorize any of
the foregoing;
(b) an involuntary case or other proceeding shall be commenced against
Seller or any Other Seller seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property; or an order for relief shall be entered
against any Seller or any Other Seller under the federal bankruptcy laws as now
or hereafter in effect; or
(c) a Collateral Event of Default within the meaning of the Collateral
Agreement;
then an "Acceleration Date" shall occur, Seller's rights under Section
-----------------
1.3(d), (e) (f) and (g) shall terminate immediately and (i) in the case of
clause (c), Seller shall become obligated to the extent permitted by law to
deliver to Purchaser (and shall be deemed to instruct the Collateral Agent
to deliver to the Custodian, for the account of Purchaser, and to liquidate
and turn into cash the U.S. Government obligations then pledged by Seller
to the extent necessary to satisfy such obligation) the Contract Shares, in
the form of the shares of Common Stock then pledged by Seller, or cash
generated from the liquidation of U.S. Government obligations then pledged
by Seller, or a combination thereof (or, after an Adjustment Event, the
alternate consideration to be delivered, in the form of Reported Securities
then pledged, cash then pledged, cash generated from the liquidation of
U.S. Government obligations then pledged, or a combination thereof); or
(ii) in the case of clauses (a) or (b), Seller shall become obligated
to the extent permitted by law to deliver to Purchaser (and shall be deemed
to instruct the Collateral Agent to deliver to the Custodian, for the
account of Purchaser, and to liquidate and turn into cash the U.S.
Government obligations then pledged by Seller to the extent necessary to
satisfy such obligation) a number of shares of Common Stock, in the form of
the shares of Common Stock then pledged by Seller, or cash generated from
the liquidation of U.S. Government obligations then pledged by Seller, or a
combination thereof (or, after an Adjustment Event, the alternate
consideration to be delivered, in the form of Reported Securities then
pledged, cash then pledged, cash generated from the liquidation of U.S.
Government obligations then pledged, or a combination thereof), with an
aggregate value (based on the Closing Price on the Acceleration Date) equal
to the Acceleration Value (as defined below).
"Acceleration Value" means an amount determined by the Administrator
------------------
on the basis of quotations from Independent Dealers (as defined below). Each
quotation will be for an amount that would be paid to the relevant Independent
Dealer in consideration of an agreement between Purchaser and such Independent
Dealer that would have the effect of preserving for Purchaser the economic
equivalent of the payments and deliveries that Purchaser would, but for the
occurrence of the Acceleration Date, have been entitled to receive after the
Acceleration Date hereunder (taking into account any adjustments to the Exchange
Rate that may have been effected on or prior to the Acceleration Date). On or
as soon as reasonably practicable following
20
the Acceleration Date, the Administrator will request each Independent Dealer to
provide its quotation as soon as reasonably practicable, but in any event within
two Business Days. The Administrator shall compute the Acceleration Value upon
receipt of each Independent Dealer's quotation, provided that if, at the close
of business on the fourth Business Day following the Acceleration Date, the
Administrator shall have received quotations from fewer than four of the
Independent Dealers, the Administrator shall compute the Acceleration Value
using the quotations, if any, it shall have received at or prior to such time.
If four quotations are provided, the Acceleration Value will be the arithmetic
mean of the two quotations remaining after disregarding the highest and lowest
quotations. (For this purpose, if more than one quotation has the same highest
or lowest value, then one of such quotations shall be disregarded.) If two or
three quotations are provided, the Acceleration Value will be the arithmetic
mean of such quotations. If one quotation is provided, the Acceleration Value
will be equal to such quotation. If no quotations are provided, the Acceleration
Value will be the aggregate value (based on the Closing Price on the
Acceleration Date) of the number of shares of Common Stock (or, after an
Adjustment Event, Reported Securities, cash or a combination thereof) that would
be required to be delivered hereunder on the Acceleration Date if the Exchange
Date were redefined to be the Acceleration Date.
"Independent Dealers" means four nationally recognized independent
-------------------
investment banking firms selected in good faith by the Administrator.
As promptly as reasonably practicable after receipt of the quotations
on which the Acceleration Value is based (or, as the case may be, after failure
to receive any such quotations within the time period prescribed above),
Purchaser shall deliver to Seller and the Collateral Agent a notice specifying
the number of shares of Common Stock (or, after an Adjustment Event, the
alternate consideration) required to be delivered by Seller. Purchaser and
Seller agree that the obligations contained in clauses (i) and (ii) above are a
reasonable pre-estimate of loss and not a penalty. Such amount is payable for
the loss of bargain and Purchaser will not be entitled to recover additional
damage as a consequence of loss resulting from an Event of Default.
ARTICLE VIII
------------
MISCELLANEOUS
-------------
8.1 Adjustments; Selection of Independent Investment Banking Firm.
-------------------------------------------------------------
Purchaser shall be responsible for the effectuation and calculation of any
adjustment pursuant to Article VI hereof and shall furnish Seller notice of any
such adjustment and shall provide Seller reasonable opportunity to review the
calculations pertaining to any such adjustment. If, pursuant to the terms and
conditions hereof, the Administrator shall be required to retain a nationally
recognized independent investment banking firm for any purpose provided herein,
such nationally recognized independent investment banking firm shall be selected
and retained by the Administrator only after consultation with Seller; provided,
however, that Seller shall be deemed to have waived his right to consult if
Seller fails to consult within five Business Days of notice being sent by the
Administrator to Seller seeking consultation. Purchaser may delegate the
effectuation and calculation of any such adjustments to its Administrator.
21
8.2 Notices. Notices to Purchaser shall be directed to it in care of
-------
the Administrator for Purchaser, The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Telephone: (000) 000-0000, Telecopier: (000) 000-0000;
notices to Seller shall be directed to . Notwithstanding the foregoing, notices
to a party shall be directed to such other address for such party as shall be
specified by such party in a like notice given pursuant to this Section 8.2.
All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if either (i) personally delivered (including
delivery by courier service or by Federal Express or any other nationally
recognized overnight delivery service for next day delivery) to the offices
specified in the preceding sentence, in which case they shall be deemed received
on the first Business Day by which delivery shall have been made to said
offices; or (ii) sent by certified mail, return receipt requested, in accordance
with the preceding sentence, in which case they shall be deemed received when
receipted for unless acknowledgment is refused (in which case delivery shall be
deemed to have been received on the first Business Day on which such
acknowledgment is refused). Any notice, demand or other communication to be
provided by or on behalf of Purchaser pursuant to this Agreement shall be sent
to the address of Seller, provided in this Section 8.2. Any failure by Seller
or any guardian, conservator, executor, administrator or other similarly
appointed person to receive any such notice, demand or communication shall in no
way abrogate, invalidate or otherwise affect the validity or enforceability of
the notice, demand or communication or the matters set forth therein.
8.3 Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
8.4 Entire Agreement. Except as expressly set forth herein, this
----------------
Agreement constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior agreements, understandings and
negotiations, both written and oral, among the parties with respect to the
subject matter of this Agreement.
8.5 Amendments; Waivers. Any provision of this Agreement may be
-------------------
amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Purchaser and Seller, or, in the case of
a waiver, by the party or parties against whom the waiver is to be effective.
No failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
8.6 No Third Party Rights; Successors and Assigns. Except as
---------------------------------------------
otherwise agreed in writing, this Agreement is not intended and shall not be
construed to create any rights in any person other than Seller and Purchaser and
their respective successors and assigns and no person shall assert any rights as
third party beneficiary hereunder. Whenever any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
permitted assigns of such party.
This Agreement will be binding on and enforceable against the Seller
despite the death or legal incapacity of any settlor or beneficiary of such
Seller.
22
8.7. Application of Bankruptcy Code. The parties hereto acknowledge
------------------------------
and agree that the Collateral Agent is a "financial institution" within the
meaning of Section 101(22) of Title 11 of the United States Code (the
"Bankruptcy Code") and is acting as agent and custodian for Purchaser in
----------------
connection with this Agreement and that Purchaser is a "customer" of the
Collateral Agent within the meaning of said Section 101(22). The parties hereto
further acknowledge and agree that this Agreement is a "securities contract", as
such term is defined in Section 741(7) of the Bankruptcy Code, entitled to the
protection of Section 555 of the Bankruptcy Code.
8.8 Governing Law; Jurisdiction; Severability; Waiver of Jury Trial.
---------------------------------------------------------------
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York. For the purpose of any suit, action or proceeding
arising out of or relating to this Agreement, the parties hereto hereby
expressly and irrevocably consent and submit to the non-exclusive jurisdiction
of any United States Federal or New York State court sitting in the Borough of
Manhattan, City and State of New York, and expressly and irrevocably waive, to
the extent permitted under applicable law, any immunity from the jurisdiction
thereof and any claim or defense in such suit, action or proceeding based on a
claim of improper venue, forum non conveniens or any similar basis to which it
might otherwise be entitled. To the extent permitted by law, the
unenforceability or invalidity of any provision or provisions of this Agreement
shall not render any other provision or provisions herein contained
unenforceable or invalid. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
PARTIES HERETO HEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS
PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR
BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH
PARTY HERETO ACKNOWLEDGES THAT IT OR HE HAS BEEN INFORMED BY THE OTHER PARTY
HERETO THAT THE PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT UPON
WHICH SUCH OTHER PARTY HERETO HAS RELIED, IS RELYING AND WILL RELY IN ENTERING
INTO THIS AGREEMENT AND ANY DOCUMENT RELATED THERETO. EACH PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE
OF THE CONSENT OF THE OTHER PARTY HERETO TO THE WAIVER OF ITS OR HIS RIGHTS TO
TRIAL BY JURY.
23
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date and year first above written.
PURCHASER: SELLER:
DECS TRUST V:
By: By:
----------------------------- -----------------------------
Name: Name:
Title: Title:
24
