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DOMINION RESOURCES, INC.
and
THE CHASE MANHATTAN BANK,
As Purchase Contract Agent
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PURCHASE CONTRACT AGREEMENT
Dated as of October 12, 2000
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisions of General Applications
Section 1.1 Definitions............................................ 1
Section 1.2 Compliance Certificates and Opinions. 11
Section 1.3 Form of Documents Delivered to Purchase Contract Agent. 11
Section 1.4 Acts of Holders; Record Dates. 12
Section 1.5 Notices................................................ 13
Section 1.6 Notice to Holders; Waiver. 14
Section 1.7 Effect of Headings and Table of Contents. 14
Section 1.8 Successors and Assigns. 14
Section 1.9 Separability Clause. 15
Section 1.1 Benefits of Agreement. 15
Section 1.1 Governing Law.......................................... 15
Section 1.1 Legal Holidays. 15
Section 1.1 Counterparts........................................... 15
Section 1.1 Inspection of Agreement. 15
ARTICLE II
Certificate Forms
Section 2.1. Forms of Certificates Generally. 16
Section 2.2. Form of Purchase Contract Agent's Certificate of Authentication.
17
ARTICLE III
The Securities
Section 3.1.... Amount; Form and Denominations. 17
Section 3.2.... Rights and Obligations Evidenced by the Certificates. 17
Section 3.3.... Execution, Authentication, Delivery and Dating. 18
Section 3.4.... Temporary Certificates........................................... 19
Section 3.5.... Registration; Registration of Transfer and Exchange. 19
Section 3.6.... Book-Entry Interests............................................. 20
Section 3.7.... Notices to Holders............................................... 21
Section 3.8.... Appointment of Successor Clearing Agency. 21
Section 3.9.... Definitive Certificates.......................................... 21
Section 3.10... Mutilated, Destroyed, Lost and Stolen Certificates. 22
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Section 3.11... Persons Deemed Owners............................................ 23
Section 3.12... Cancellation..................................................... 23
Section 3.13... Creation of Treasury PIES by Substitution of Treasury Securities. 24
Section 3.14... Reestablishment of Corporate PIES. 25
Section 3.15... Transfer of Collateral upon Occurrence of Termination Event. 26
Section 3.16... No Consent to Assumption. 26
ARTICLE IV
The Senior Notes
Section 4.1... Interest Payments; Rights to Interest Preserved. 27
Section 4.2... Interest Rate Reset. 27
Section 4.3... Notice and Voting. 28
ARTICLE V
The Purchase Contracts
Section 5.1.... Purchase of Shares of Common Stock. 28
Section 5.2.... Contract Adjustment Payments. 30
Section 5.3.... [Intentionally omitted]. 31
Section 5.4.... Payment of Purchase Price. 31
Section 5.5.... Issuance of Shares of Common Stock. 35
Section 5.6.... Adjustment of Settlement Rate. 35
Section 5.7.... Notice of Adjustments and Certain Other Events. 41
Section 5.8.... Termination Event; Notice. 42
Section 5.9.... Early Settlement. 42
Section 5.10... No Fractional Shares. 44
Section 5.11... Charges and Taxes. 44
ARTICLE VI
Remedies
Section 6.1... Unconditional Right of Holders to Receive Contract Adjustment Payments and to Purchase Shares of Common Stock 44
Section 6.2... Restoration of Rights and Remedies........................................................................... 45
Section 6.3... Rights and Remedies Cumulative............................................................................... 45
Section 6.4... Delay or Omission Not Waiver................................................................................. 45
Section 6.5... Undertaking for Costs........................................................................................ 45
Section 6.6... Waiver of Stay or Extension Laws............................................................................. 46
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ARTICLE VII
The Purchase Contract Agent
Section 7.1.... Certain Duties and Responsibilities. 46
Section 7.2.... Notice of Default........................................... 47
Section 7.3.... Certain Rights of Purchase Contract Agent. 47
Section 7.4.... Not Responsible for Recitals or Issuance of Securities. 48
Section 7.5.... May Hold Securities. 48
Section 7.6.... Money Held in Custody. 48
Section 7.7.... Compensation and Reimbursement. 48
Section 7.8.... Corporate Purchase Contract Agent Required; Eligibility. 49
Section 7.9.... Resignation and Removal; Appointment of Successor. 49
Section 7.10... Acceptance of Appointment by Successor. 50
Section 7.11... Merger, Conversion, Consolidation or Succession to Business. 51
Section 7.12... Preservation of Information; Communications to Holders. 51
Section 7.13... No Obligations of Purchase Contract Agent. 52
Section 7.14... Tax Compliance.............................................. 52
ARTICLE VIII
Supplemental Agreements
Section 8.1... Supplemental Agreements Without Consent of Holders. 53
Section 8.2... Supplemental Agreements With Consent of Holders. 53
Section 8.3... Execution of Supplemental Agreements. 54
Section 8.4... Effect of Supplemental Agreements. 54
Section 8.5... Reference to Supplemental Agreements. 54
ARTICLE IX
Merger, Consolidation, Share Exchange, Sale or Conveyance
Section 9.1. Covenant Not to Merge, Consolidate, Enter into a Share Exchange, Sell or Convey Property Except
Under Certain Conditions.......................................................................... 55
Section 9.2. Rights and Duties of Successor Corporation......................................................... 55
Section 9.3. Officers' Certificate and Opinion of Counsel Given to Purchase Contract Agent. 56
ARTICLE X
Covenants
Section 10.1... Performance Under Purchase Contracts. 56
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Section 10.2... Maintenance of Office or Agency. 56
Section 10.3... Company to Reserve Common Stock. 57
Section 10.4... Covenants as to Common Stock. 57
Section 10.5... Statements of Officers of the Company as to Default. 57
Section 10.6... ERISA............................................... 57
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EXHIBITS
EXHIBIT A Form of Corporate PIES Certificate
EXHIBIT B Form of Treasury PIES Certificate
EXHIBIT C Instruction to Purchase Contract Agent
EXHIBIT D Notice from Purchase Contract Agent to Holders
(Transfer of Collateral upon Occurrence of a Termination Event)
EXHIBIT E Notice to Settle by Cash
EXHIBIT F Notice from Purchase Contract Agent to Collateral Agent and
Indenture Trustee (Settlement of Purchase Contract through
Remarketing)
EXHIBIT G Notice from Holder to Indenture Trustee
(Election to Tender for Purchase Senior Notes in the Remarketing)
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PURCHASE CONTRACT AGREEMENT, dated as of October 12, 2000, between
DOMINION RESOURCES, INC., a Virginia corporation (the "Company"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, acting as purchase contract
agent for the Holders of Securities from time to time (the "Purchase Contract
Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Securities.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company and authenticated, executed on behalf
of the Holders and delivered by the Purchase Contract Agent, as provided in this
Agreement, the valid obligations of the Company, and to constitute these
presents a valid agreement of the Company, in accordance with its terms, have
been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
Definitions and Other Provisions
of General Applications
Section 1.1. Definitions.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular, and nouns
and pronouns of the masculine gender include the feminine and neuter genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(d) the following terms have the meanings given to them in this
Section 1.1(d):
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Adjusted Contract Adjustment Payment Rate" means, with respect to any
Reset Transaction, the rate per annum that is the arithmetic average of the
rates quoted by two Reference Dealers selected by the Company or its successor
as the rate at which Contract Adjustment Payments should accrue so that the fair
market value, expressed in dollars, of a Corporate PIES immediately
after the later of (i) public announcement of such Reset Transaction or (ii)
public announcement of a change in dividend policy in connection with such Reset
Transaction will equal the average Trading Price of a Corporate PIES for the 20
Trading Days immediately preceding the date of public announcement of such Reset
Transaction; provided that the Adjusted Contract Adjustment Payment Rate shall
not be less than 1.45% per annum.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning set forth in Section 5.1.
"Applicants" has the meaning set forth in Section 7.12(b).
"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 Global Certificate, a
Person who is the beneficial owner of such Book-Entry Interest as reflected on
the books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Board of Directors" means the board of directors of the Company or a
duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of each of which has been certified by the Secretary or an
Assistant Secretary of the Company, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification
and delivered to the Purchase Contract Agent.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 3.6.
"Business Day" means any day other than (i) a Saturday or Sunday or a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (ii) a day on which the
Indenture Trustee is closed for business; provided that for purposes of the
second paragraph of Section 1.12 only, the term "Business Day" shall also be
deemed to exclude any day on which trading on the New York Stock Exchange, Inc.
is closed or suspended.
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"Cash Settlement" has the meaning set forth in Section 5.4(a)(i).
"Certificate" means a Corporate PIES Certificate or a Treasury PIES
Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Securities and in whose name, or in the name of a nominee of
that organization, shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Price" has the meaning set forth in Section 5.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning set forth in Section 1 of the Pledge
Agreement.
"Collateral Account" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Collateral Agent" means Bank One Trust Company, N.A., as Collateral
Agent under the Pledge Agreement until a successor Collateral Agent shall have
become such pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Collateral Agent" shall mean the Person who is then the Collateral
Agent thereunder.
"Collateral Substitution" has the meaning set forth in Section 3.13.
"Common Stock" means the Common Stock, par value $1.00 per share, of
the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such pursuant
to the applicable provision of this Agreement, and thereafter "Company" shall
mean such successor.
"Constituent Person" has the meaning set forth in Section 5.6(b).
"Contract Adjustment Payments" means the payments payable by the
Company on the Payment Dates in respect of each Purchase Contract, equal to (a)
if a Reset Transaction has not occurred, 1.45% per annum of the Stated Amount or
(b) following the occurrence of a Reset Transaction, the Adjusted Contract
Adjustment Payment Rate related to such Reset Transaction until any succeeding
Reset Transaction shall occur, in either case computed (i) for any full
quarterly period on the basis of a 360-day year of twelve 30-day months, (ii)
for any period shorter than a full quarterly period for which such payments are
calculated, on the basis of a 30-day month and (iii) for periods of less than a
month, the actual number of days elapsed per 30-day month.
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"Corporate PIES" means the collective rights and obligations of a
Holder of a Corporate PIES Certificate in respect of the Senior Notes, subject
to the Pledge thereof, and the related Purchase Contract.
"Corporate PIES Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Corporate PIES specified
on such certificate.
"Corporate PIES Register" and "Corporate PIES Registrar" have the
respective meanings specified in Section 3.5.
"Corporate Trust Office" means the office of the Purchase Contract
Agent at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at 000 Xxxx 00/xx/
Xxxxxx, 00/xx/ Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Capital Markets
Fiduciary Services.
"Coupon Rate" means the percentage rate per annum at which each Senior
Note will bear interest initially.
"Current Market Price" has the meaning specified in Section 5.6(a)(8).
"Depositary" means DTC until another Clearing Agency becomes its
successor.
"Dividend Yield" means, with respect to any security for any period,
the dividends paid or proposed to be paid pursuant to an announced dividend
policy on such security for such period divided by, if with respect to dividends
paid on such security, the average Closing Price of such security during such
period and, if with respect to dividends so proposed to be paid on such
security, the Closing Price of such security on the effective date of the
related Reset Transaction.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Early Settlement" has the meaning set forth in Section 5.9(a).
"Early Settlement Amount" has the meaning set forth in Section 5.9(a).
"Early Settlement Date" has the meaning set forth in Section 5.9(a).
"Early Settlement Rate" has the meaning set forth in Section 5.9(b).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Expiration Date" has the meaning set forth in Section 1.4(e).
"Expiration Time" has the meaning set forth in Section 5.6(a)(6).
"Failed Remarketing" has the meaning set forth in Section 5.4(b).
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"Global Certificate" means a Certificate that evidences all or part of
the Securities and is registered in the name of a Clearing Agency or a nominee
thereof.
"Holder" means, with respect to a Security, the Person in whose name
the Security evidenced by a Corporate PIES Certificate and/or a Treasury PIES
Certificate is registered in the related Corporate PIES Register and/or the
Treasury PIES Register, as the case may be; provided, however, that in
determining whether the Holders of the requisite number of Corporate PIES and/or
Treasury PIES have voted on any matter, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Security
remains in the form of one or more Global Certificates and if the Clearing
Agency which is the holder of such Global Certificate has sent an omnibus proxy
assigning voting rights to the Clearing Agency Participants to whose accounts
the Securities are credited on the record date, the term "Holder" shall mean
such Clearing Agency Participant acting at the direction of the Beneficial
Owners.
"Indenture" means the Senior Indenture, dated as of June 1, 2000,
between the Company and the Indenture Trustee, as amended and supplemented
(including any provisions of the TIA that are deemed incorporated therein and
including the Supplemental Indenture), pursuant to which the Senior Notes will
be issued.
"Indenture Trustee" means The Chase Manhattan Bank, a New York banking
corporation, as trustee under the Indenture, or any successor thereto.
"Issuer Order" or "Issuer Request" means a written request or order
signed in the name of the Company by (i) either its Chief Executive Officer, its
President or one of its Vice Presidents and (ii) either its Corporate Secretary
or one of its Assistant Corporate Secretaries or its Treasurer or one of its
Assistant Treasurers, and delivered to the Purchase Contract Agent.
"non-electing share" has the meaning set forth in Section 5.6(b).
"NYSE" has the meaning set forth in Section 5.1.
"Officers' Certificate" means a certificate signed by (i) either the
Chief Executive Officer, the President or one of the Vice Presidents and (ii)
either the Corporate Secretary or one of the Assistant Corporate Secretaries or
the Treasurer or one of the Assistant Treasurers, of the Company, and delivered
to the Purchase Contract Agent. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Agreement shall include:
(1) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(2) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(3) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
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(4) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company (and who may be an employee of the Company), and who
shall be reasonably acceptable to the Purchase Contract Agent. An opinion of
counsel may rely on certificates as to matters of fact.
"Outstanding Securities" means, with respect to any Corporate PIES or
Treasury PIES and as of the date of determination, all Corporate PIES or
Treasury PIES evidenced by Certificates theretofore authenticated, executed and
delivered under this Agreement, except:
(1) If a Termination Event has occurred, (i) Treasury PIES and (ii)
Corporate PIES for which the underlying Senior Notes have been theretofore
deposited with the Purchase Contract Agent in trust for the Holders of such
Corporate PIES;
(2) Corporate PIES and Treasury PIES evidenced by Certificates
theretofore cancelled by the Purchase Contract Agent or delivered to the
Purchase Contract Agent for cancellation or deemed cancelled pursuant to
the provisions of this Agreement; and
(3) Corporate PIES and Treasury PIES evidenced by Certificates in
exchange for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered pursuant to
this Agreement, other than any such Certificate in respect of which there
shall have been presented to the Purchase Contract Agent proof satisfactory
to it that such Certificate is held by a bona fide purchaser in whose hands
the Corporate PIES or Treasury PIES evidenced by such Certificate are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
number of the Corporate PIES or Treasury PIES have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Corporate PIES or
Treasury PIES owned by the Company or any Affiliate of the Company shall be
disregarded and deemed not to be Outstanding Securities, except that, in
determining whether the Purchase Contract Agent shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Corporate PIES or Treasury PIES which a Responsible Officer of the
Purchase Contract Agent knows to be so owned shall be so disregarded. Corporate
PIES or Treasury PIES so owned which have been pledged in good faith may be
regarded as Outstanding Securities if the pledgee establishes to the
satisfaction of the Purchase Contract Agent the pledgee's right so to act with
respect to such Corporate PIES or Treasury PIES and that the pledgee is not the
Company or any Affiliate of the Company.
"Payment Date" means each May 15, August 15 and November 15,
commencing February 15, 2001.
"Permitted Investments" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof or any other entity of whatever nature.
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"PIES" means the collective reference to the Corporate PIES and the
Treasury PIES.
"Plan" means an employee benefit plan that is subject to ERISA, a plan
or individual retirement account that is subject to Section 4975 of the Code or
any entity whose assets are considered assets of any such plan.
"Pledge" means the pledge under the Pledge Agreement of the Senior
Notes or the Treasury Securities, in each case constituting a part of the
Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, by and among the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as attorney-
in-fact for the Holders from time to time of the Securities.
"Pledged Senior Notes" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Pledged Treasury Securities" has the meaning set forth in Section 1
of the Pledge Agreement.
"Predecessor Certificate" means a Predecessor Corporate PIES
Certificate or a Predecessor Treasury PIES Certificate.
"Predecessor Corporate PIES Certificate" of any particular Corporate
PIES Certificate means every previous Corporate PIES Certificate evidencing all
or a portion of the rights and obligations of the Company and the Holder under
the Corporate PIES evidenced thereby; and, for the purposes of this definition,
any Corporate PIES Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Corporate PIES
Certificate shall be deemed to evidence the same rights and obligations of the
Company and the Holder as the mutilated, destroyed, lost or stolen Corporate
PIES Certificate.
"Predecessor Treasury PIES Certificate" of any particular Treasury
PIES Certificate means every previous Treasury PIES Certificate evidencing all
or a portion of the rights and obligations of the Company and the Holder under
the Treasury PIES evidenced thereby; and, for the purposes of this definition,
any Treasury PIES Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Treasury PIES
Certificate shall be deemed to evidence the same rights and obligations of the
Company and the Holder as the mutilated, destroyed, lost or stolen Treasury PIES
Certificate.
"Proceeds" has the meaning set forth in Section 1 of the Pledge
Agreement.
"Purchase Contract" means, with respect to any Security, the contract
forming a part of such Security and obligating the Company to (i) sell, and the
Holder of such Security to purchase, shares of Common Stock and (ii) pay the
Holder Contract Adjustment Payments in each case on the terms and subject to the
conditions set forth in Article Five hereof.
"Purchase Contract Agent" means the Person named as the "Purchase
Contract Agent" in the first paragraph of this instrument until a successor
Purchase Contract Agent shall have become
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such pursuant to the applicable provisions of this Agreement, and thereafter
"Purchase Contract Agent" shall mean such Person.
"Purchase Contract Settlement Date" means November 16, 2004.
"Purchase Contract Settlement Fund" has the meaning set forth in
Section 5.5.
"Purchase Price" has the meaning set forth in Section 5.1.
"Purchased Shares" has the meaning set forth in Section 5.6(a)(6).
"Record Date" for the Contract Adjustment Payments payable on any
Payment Date means, as to any Global Certificate, the Business Day next
preceding such Payment Date, and as to any other Certificate, the fifteenth
Business Day prior to such Payment Date.
"Reference Dealer" means a dealer engaged in the trading of
convertible securities.
"Reference Price" has the meaning set forth in Section 5.1.
"Register" means the Corporate PIES Register and the Treasury PIES
Register.
"Registrar" means the Corporate PIES Registrar and the Treasury PIES
Registrar.
"Remarketing" has the meaning set forth in the Supplemental Indenture.
"Remarketing Agent" has the meaning set forth in Section 5.4(b).
"Remarketing Agreement" means the Remarketing Agreement, dated as of
the date hereof between the Company and the Remarketing Agent.
"Remarketing Date" means the date, which is the third Business Day
immediately preceding the Purchase Contract Settlement Date, the Reset Rate is
determined pursuant to the Remarketing.
"Remarketing Fee" has the meaning set forth in Section 5.4(b).
"Reorganization Event" has the meaning set forth in Section 5.6(b).
"Reset Rate" has the meaning set forth in the Supplemental Indenture.
"Reset Transaction" means a merger, consolidation or statutory share
exchange to which the Person that is the issuer of the shares of Common Stock
for which the Purchase Contracts are then to be settled is a party, a sale of
all or substantially all assets of such Person, a recapitalization of such
common shares or a distribution described in Section 5.6(a)(4) by such Person
and after the effective date of such transaction the Purchase Contracts are then
to be settled for shares of Common Stock of a Person (i) which had a Dividend
Yield for the four fiscal quarters immediately preceding the public announcement
thereof which was, or (ii) that announces a dividend policy prior to the
effective date thereof which policy, if implemented, would result in a Dividend
Yield on such shares of Common Stock for the next four fiscal quarters which
would be, more than
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250 basis points higher than the Dividend Yield on the shares of Common Stock
for which the Purchase Contracts are to be settled prior to such effective date
for the four fiscal quarters immediately preceding such public announcement.
"Responsible Officer," when used with respect to the Purchase Contract
Agent, means any officer of the Purchase Contract Agent assigned by the Purchase
Contract Agent to administer its corporate trust matters.
"Securities Intermediary" means Bank One Trust Company, N.A., as
Securities Intermediary under the Pledge Agreement until a successor Securities
Intermediary shall have become such pursuant to the applicable provisions of the
Pledge Agreement, and thereafter "Securities Intermediary" shall mean such
successor.
"Security" means a Corporate PIES or a Treasury PIES, as the case may
be.
"Senior Notes" means 2000 Series G 8.05% Senior Notes due November 15,
2006 to be issued by the Company under the Supplemental Indenture, each bearing
interest, payable on the Payment Dates, at the Coupon Rate until the Purchase
Contract Settlement Date, and at the Reset Rate thereafter.
"Settlement Rate" has the meaning specified in Section 5.1.
"Stated Amount" means $50 in cash.
"Stated Maturity" means, with respect to the Senior Notes, November
15, 2006.
"Supplemental Indenture" means the Seventh Supplemental Indenture,
dated as of October 1, 2000, between the Company and the Indenture Trustee,
supplementing the Indenture.
"Termination Date" means the date, if any, on which a Termination
Event occurs.
"Termination Event" means the occurrence of any of the following
events:
(1) at any time on or prior to the Purchase Contract Settlement Date,
a judgment, decree or court order shall have been entered granting relief
with respect to the Company under the Bankruptcy Code or any other similar
applicable Federal or State law, adjudicating the Company to be insolvent,
or approving as properly filed a petition seeking reorganization or
liquidation of the Company, and, unless such judgment, decree or order
shall have been entered within 60 days prior to the Purchase Contract
Settlement Date, such decree or order shall have continued undischarged and
unstayed for a period of 60 days;
(2) a judgment, decree or court order for the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of the Company or of its property, or for the winding up or liquidation of
its affairs, shall have been entered, and, unless such judgment, decree or
order shall have been entered within 60 days prior to the Purchase Contract
Settlement Date, such judgment, decree or order shall have continued
undischarged and unstayed for a period of 60 days; or
9
at any time on or prior to the Purchase Contract Settlement Date, the
Company shall file a petition for relief under the Bankruptcy Code, or
shall consent to the filing of a bankruptcy proceeding against it, or shall
file a petition or answer or consent seeking reorganization or liquidation
of the Company under the Bankruptcy Code or any other similar applicable
Federal or State law, or shall consent to the filing of any such petition,
or shall consent to the appointment of a receiver or liquidator or trustee
or assignee in bankruptcy or insolvency of it or of its property, or shall
make an assignment for the benefit of its creditors, or shall admit in
writing its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning set forth in Section
5.1.
"TIA" means the Trust Indenture Act of 1939, as amended from time to
time, or any successor legislation.
"Trading Day" has the meaning set forth in Section 5.1.
"Trading Price" of a security on any date of determination means:
the closing sale price (or, if no closing price is reported, the last
reported sale price) of a security (regular way) on the NYSE on such date,
if such security is not listed for trading on the NYSE on any such
date, the closing sale price as reported in the composite transactions for
the principal United States securities exchange on which such security is
so listed,
if such security is not so listed on a United States national or
regional securities exchange, the closing sale price as reported by the
NASDAQ Stock Market,
if such security is not so reported, the price quoted by Interactive
Data Corporation for such security or, if Interactive Data Corporation is
not quoting such price, a similar quotation service selected by the
Company,
if such security is not so quoted, the average of the mid-point of the
last bid and ask prices for such security from at least two dealers
recognized as market-makers for such security, or
if such security is not so quoted, the average of the last bid and ask
prices for such security from a Reference Dealer.
"Treasury PIES" means, following the substitution of Treasury
Securities for Senior Notes as collateral to secure a Holder's obligations under
a Purchase Contract, the collective rights and obligations of a Holder of a
Treasury PIES Certificate in respect of such Treasury Securities, subject to the
Pledge thereof, and the related Purchase Contract.
"Treasury PIES Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Treasury PIES specified
on such certificate.
10
"Treasury PIES Register" and "Treasury PIES Registrar" have the
respective meanings set forth in Section 3.5.
"Treasury Securities" means a zero-coupon U.S. Treasury Securities
which has a principal amount at maturity of $1,000 and which matures on or prior
to November 15, 2004.
"Underwriters" means Xxxxxx Brothers Inc., Bank of America Securities
LLC, Credit Suisse First Boston Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated and Xxxxxx Xxxxxxx & Co. Incorporated, collectively.
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Purchase Contract Agent to take any
action in accordance with any provision of this Agreement, the Company shall
furnish to the Purchase Contract Agent an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and, if requested by the Purchase
Contract Agent, an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Agreement
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Purchase Contract Agent.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
11
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Purchase Contract Agent and, where it is hereby expressly required, to
the Company. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Agreement and (subject to Section 7.1) conclusive in favor of
the Purchase Contract Agent and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Purchase Contract
Agent deems sufficient.
(c) The ownership of Securities shall be proved by the Corporate PIES
Register or the Treasury PIES Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Purchase
Contract Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Securities. If any record date is set pursuant to this paragraph,
the Holders of the Outstanding Corporate PIES and the Outstanding Treasury PIES,
as the case may be, on such record date, and no other Holders, shall be entitled
to take the relevant
12
action with respect to the Corporate PIES or the Treasury PIES, as the case may
be, whether or not such Holders remain Holders after such record date; provided
that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite number of Outstanding
Securities on such record date. Nothing contained in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and be of no effect), and nothing contained in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite number of Outstanding Securities on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Purchase Contract Agent in writing and to each Holder of Securities in the
manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day; provided that no
such change shall be effective unless notice of the proposed new Expiration Date
is given to the Purchase Contract Agent in writing, and to each Holder of
Securities in the manner set forth in Section 1.6, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the Company shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Section 1.5. Notices.
Any notice or communication is duly given if in writing and delivered
in Person or mailed by first-class mail (registered or certified, return receipt
requested), telecopier (with receipt confirmed) or overnight air courier
guaranteeing next day delivery, to the others' address; provided that notice
shall be deemed given to the Purchase Contract Agent only upon receipt thereof:
If to the Purchase Contract Agent:
The Chase Manhattan Bank
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000/8160
Attention: Capital Markets Fiduciary Services
If to the Company:
Dominion Resources, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telecopier No.: .
Attention: .
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If to the Collateral Agent and Securities Intermediary:
Bank One Trust Company, N.A.
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administration
If to the Indenture Trustee:
The Chase Manhattan Bank
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000/8160
Attention: Capital Markets Fiduciary Services
Section 1.6. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at its address as it appears in the applicable Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Purchase Contract Agent, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Purchase
Contract Agent shall constitute a sufficient notification for every purpose
hereunder.
Section 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.8. Successors and Assigns.
All covenants and agreements in this Agreement by the Company shall
bind its successors and assigns, whether so expressed or not.
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Section 1.9. Separability Clause.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
Section 1.10. Benefits of Agreement.
Nothing contained in this Agreement or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and, to the extent provided hereby, the Holders, any
benefits or any legal or equitable right, remedy or claim under this Agreement.
The Holders from time to time shall be beneficiaries of this Agreement and shall
be bound by all of the terms and conditions hereof and of the Securities
evidenced by their Certificates by their acceptance of delivery of such
Certificates.
Section 1.11. Governing Law.
THIS AGREEMENT AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business Day, then
(notwithstanding any other provision of this Agreement or the Corporate PIES
Certificates or the Treasury PIES Certificates) Contract Adjustment Payments
shall not be made on such date, but shall be made on the next succeeding
Business Day with the same force and effect as if made on such Payment Date,
provided that no interest shall accrue or be payable by the Company or any
Holder for the period from and after any such Payment Date, except that, if such
next succeeding Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day with the same
force and effect as if made on such Payment Date.
In any case where any Purchase Contract Settlement Date shall not be a
Business Day, notwithstanding any other provision of this Agreement, the
Corporate PIES Certificates or the Treasury PIES Certificates, Purchase
Contracts shall not be performed on such date, but the Purchase Contracts shall
be performed on the immediately following Business Day with the same force and
effect as if performed on the Purchase Contract Settlement Date.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts by the
parties hereto on separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times
during normal business hours at the Corporate Trust Office for inspection by any
Holder or Beneficial Owner.
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ARTICLE II
Certificate Forms
Section 2.1. Forms of Certificates Generally.
The Corporate PIES Certificates (including the form of Purchase
Contract forming part of the Corporate PIES evidenced thereby) shall be in
substantially the form set forth in Exhibit A hereto, with such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Corporate PIES are listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Corporate PIES Certificates, as evidenced by their
execution of the Corporate PIES Certificates.
The definitive Corporate PIES Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Corporate PIES evidenced by such Corporate PIES Certificates, consistent with
the provisions of this Agreement, as evidenced by their execution thereof.
The Treasury PIES Certificates (including the form of Purchase
Contracts forming part of the Treasury PIES evidenced thereby) shall be in
substantially the form set forth in Exhibit B hereto, with such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Treasury PIES may be listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Treasury PIES Certificates, as evidenced by their
execution of the Treasury PIES Certificates.
The definitive Treasury PIES Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Treasury PIES evidenced by such Treasury PIES Certificates, consistent with the
provisions of this Agreement, as evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend in substantially the
following form:
"This Certificate is a Global Certificate within the meaning of the
Purchase Contract Agreement hereinafter referred to and is registered in
the name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This Certificate is
exchangeable for certificates registered in the name of a person other than
the Depositary or its nominee only in the limited circumstances described
in the Purchase Contract Agreement and no transfer of this Certificate
(other than a transfer of this Certificate as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary) may be registered except
in limited circumstances.
Unless this Certificate is presented by an authorized representative of the
Depositary for registration of transfer, exchange or payment, and any
certificate issued is requested in the name of Cede & Co. or such other
name as registered by an authorized representative of the
16
Depositary (and any payment hereon is made to Cede & Co. or to such other
entity as is requested by an authorized representative of the Depositary),
any transfer, pledge or other use hereof for value or otherwise by or to
any person is wrongful since the registered owner hereof, Cede & Co., has
an interest herein."
Section 2.2. Form of Purchase Contract Agent's Certificate of Authentication.
The form of the Purchase Contract Agent's certificate of
authentication of the Corporate PIES shall be in substantially the form set
forth on the form of the Corporate PIES Certificates.
The form of the Purchase Contract Agent's certificate of
authentication of the Treasury PIES shall be in substantially the form set forth
on the form of the Treasury PIES Certificates.
ARTICLE III
The Securities
Section 3.1. Amount; Form and Denominations.
The aggregate number of Securities evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to 8,050,000 (including 1,050,000 relating to the Underwriters' over-
allotment option), except for Certificates authenticated, executed and delivered
upon registration of transfer of, in exchange for, or in lieu of, other
Certificates pursuant to Section 3.4, 3.5, 3.10, 3.13, 3.14, 5.9 or 8.5.
The Certificates shall be issuable only in registered form and only in
denominations of a single Corporate PIES or Treasury PIES and any integral
multiple thereof.
Section 3.2. Rights and Obligations Evidenced by the Certificates.
Each Corporate PIES Certificate shall evidence the number of Corporate
PIES specified therein, with each such Corporate PIES representing (1) the
ownership by the Holder thereof of a beneficial interest in one Senior Note,
subject to the Pledge of such Senior Note by such Holder pursuant to the Pledge
Agreement, and (2) the rights and obligations of the Holder thereof and the
Company under one Purchase Contract. The Purchase Contract Agent as attorney-
in-fact for, and on behalf of, the Holder of each Corporate PIES shall pledge,
pursuant to the Pledge Agreement, the Senior Note, forming a part of such
Corporate PIES, to the Collateral Agent and grant to the Collateral Agent a
security interest in the right, title and interest of such Holder in such Senior
Note for the benefit of the Company, to secure the obligation of the Holder
under each Purchase Contract to purchase shares of Common Stock. Prior to the
purchase of shares of Common Stock under each Purchase Contract, such Purchase
Contracts shall not entitle the Holder of a Corporate PIES Certificate to any of
the rights of a holder of shares of Common Stock, including, without limitation,
the right to vote or receive any dividends or other payments or to consent or to
receive notice as a shareholder in respect of the meetings of shareholders or
for the election of directors of the Company or for any other matter, or any
other rights whatsoever as a shareholder of the Company.
17
Upon the formation of Treasury PIES pursuant to Section 3.13, each
Treasury PIES Certificate shall evidence the number of Treasury PIES specified
therein, with each such Treasury PIES representing (1) the ownership by the
Holder thereof of a 1/20 undivided beneficial interest in a Treasury Security
with a principal amount equal to $1,000, subject to the Pledge of such Treasury
Security by such Holder pursuant to the Pledge Agreement, and (2) the rights and
obligations of the Holder thereof and the Company under one Purchase Contract.
Prior to the purchase of shares of Common Stock under each Purchase Contract,
such Purchase Contract shall not entitle the Holder of a Treasury PIES
Certificate to any of the rights of a holder of shares of Common Stock,
including, without limitation, the right to vote or receive any dividends or
other payments or to consent or to receive notice as a shareholder in respect of
the meetings of shareholders or for the election of directors of the Company or
for any other matter, or any other rights whatsoever as a shareholder of the
Company.
Section 3.3. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Sections 3.13 and 3.14 hereof, upon the
execution and delivery of this Agreement, and at any time and from time to time
thereafter, the Company may deliver Certificates executed by the Company to the
Purchase Contract Agent for authentication, execution on behalf of the Holders
and delivery, together with its Issuer Order for authentication of such
Certificates, and the Purchase Contract Agent in accordance with such Issuer
Order shall authenticate, execute on behalf of the Holders and deliver such
Certificates.
The Certificates shall be executed on behalf of the Company by (i)
either its Chief Executive Officer, its President or one of its Vice Presidents
and (ii) either the Corporate Secretary or one of its Assistant Corporate
Secretaries or its Treasurer or one of its Assistant Treasurers. The signature
of any of these officers on the Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid until
such Certificate has been executed on behalf of the Holder by the manual
signature of an authorized signatory of the Purchase Contract Agent, as such
Holder's attorney-in-fact. Such signature by an authorized signatory of the
Purchase Contract Agent shall be conclusive evidence that the Holder of such
Certificate has entered into the Purchase Contracts evidenced by such
Certificate.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this Agreement
or be valid or obligatory for any purpose unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by an authorized signatory of the Purchase Contract Agent by
manual signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
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Section 3.4. Temporary Certificates.
Pending the preparation of definitive Certificates, the Company shall
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall authenticate, execute on behalf of the Holders, and deliver, in lieu
of such definitive Certificates, temporary Certificates which are in
substantially the form set forth in Exhibit A or Exhibit B hereto, as the case
may be, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities exchange on which the
Corporate PIES or Treasury PIES are or may be listed, or as may, consistently
herewith, be determined by the officers of the Company executing such
Certificates, as evidenced by their execution of the Certificates.
If temporary Certificates are issued, the Company will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office, at the expense of the Company and
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Certificates, the Company shall execute and deliver to the
Purchase Contract Agent, and the Purchase Contract Agent shall authenticate,
execute on behalf of the Holder, and deliver in exchange therefor, one or more
definitive Certificates of like tenor and denominations and evidencing a like
aggregate number of Corporate PIES or Treasury PIES, as the case may be, as the
temporary Certificate or Certificates so surrendered. Until so exchanged, the
temporary Certificates shall in all respects evidence the same benefits and the
same obligations with respect to the Corporate PIES or Treasury PIES, as the
case may be, evidenced thereby as definitive Certificates.
Section 3.5. Registration; Registration of Transfer and Exchange.
The Purchase Contract Agent shall keep at the Corporate Trust Office a
register (the "Corporate PIES Register") in which, subject to such reasonable
regulations as it may prescribe, the Purchase Contract Agent shall provide for
the registration of Corporate PIES Certificates and of transfers of Corporate
PIES Certificates (the Purchase Contract Agent, in such capacity, the "Corporate
PIES Registrar") and a register (the "Treasury PIES Register") in which, subject
to such reasonable regulations as it may prescribe, the Purchase Contract Agent
shall provide for the registration of the Treasury PIES Certificates and
transfers of Treasury PIES Certificates (the Purchase Contract Agent, in such
capacity, the "Treasury PIES Registrar").
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent shall authenticate, execute on
behalf of the designated transferee or transferees, and deliver, in the name of
the designated transferee or transferees, one or more new Certificates of any
authorized denominations, like tenor, and evidencing a like aggregate number of
Corporate PIES or Treasury PIES, as the case may be.
At the option of the Holder, Certificates may be exchanged for other
Certificates, of any authorized denominations and evidencing a like number of
Corporate PIES or Treasury PIES, as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and
deliver to
19
the Purchase Contract Agent, and the Purchase Contract Agent shall
authenticate, execute on behalf of the Holder, and deliver the Certificates
which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or exchange
of a Certificate shall evidence the ownership of the same aggregate number of
Corporate PIES or Treasury PIES, as the case may be, and be entitled to the same
benefits and subject to the same obligations, under this Agreement as the
Corporate PIES or Treasury PIES, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Purchase Contract Agent)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Purchase Contract Agent duly executed, by
the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Company and the Purchase Contract Agent may
require payment from the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Certificates, other than any exchanges pursuant to
Sections 3.6 and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall not be obligated to authenticate, execute on behalf of the Holder
and deliver any Certificate in exchange for any other Certificate presented or
surrendered for registration of transfer or for exchange on or after the
Business Day immediately preceding the earlier of the Purchase Contract
Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Purchase Contract Agent shall:
(1) if the Purchase Contract Settlement Date has occurred, deliver the
shares of Common Stock issuable in respect of the Purchase Contracts
forming a part of the Securities evidenced by such other Certificate; or
(2) if a Termination Event shall have occurred prior to the Purchase
Contract Settlement Date, transfer the Senior Notes or the Treasury
Securities, as the case may be, evidenced thereby, in each case subject to
the applicable conditions and in accordance with the applicable provisions
of Article Five hereof.
Section 3.6. Book-Entry Interests.
The Certificates, on original issuance, will be issued in the form of
one or more fully registered Global Certificates, to be delivered to the
Depositary 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 Purchase Contract
Agent shall enter into an agreement with the
20
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:
(1) the provisions of this Section 3.6 shall be in full force and
effect;
(2) the Company shall be entitled to deal with the Clearing Agency for
all purposes of this Agreement (including making Contract Adjustment
Payments and receiving approvals, votes or consents hereunder) as the
Holder of the Securities and the sole holder of the Global Certificates and
shall have no obligation to the Beneficial Owners;
(3) to the extent that the provisions of this Section 3.6 conflict
with any other provisions of this Agreement, the provisions of this Section
3.6 shall control; and
(4) the rights of the Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Beneficial Owners and the Clearing Agency
and/or the Clearing Agency Participants.
Section 3.7. Notices to Holders.
Whenever a notice or other communication to the Holders is required to
be given under this Agreement, the Company or the Company's agent shall give
such notices and communications to the Holders and, with respect to any
Securities registered in the name of a Clearing Agency or the nominee of a
Clearing Agency, the Company or the Company's agent shall, except as set forth
herein, have no obligations to the Beneficial Owners.
Section 3.8. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities, the Company may, in its
sole discretion, appoint a successor Clearing Agency with respect to the
Securities.
Section 3.9. Definitive Certificates.
If:
(1) a Clearing Agency elects to discontinue its services as securities
depositary with respect to the Securities and a successor Clearing Agency
is not appointed within 90 days after such discontinuance pursuant to
Section 3.8; or
(2) there shall have occurred and be continuing a default by the
Company in respect of its obligations under one or more Purchase Contracts,
then upon surrender of the Global Certificates representing the Securities by
the Clearing Agency, accompanied by registration instructions, the Company shall
cause definitive Certificates to be delivered to Beneficial Owners in accordance
with the instructions of the Clearing Agency. The Company 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.
21
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Purchase Contract
Agent, the Company shall execute and deliver to the Purchase Contract Agent, and
the Purchase Contract Agent shall authenticate, execute on behalf of the Holder,
and deliver in exchange therefor, a new Certificate, evidencing the same number
of Corporate PIES or Treasury PIES, as the case may be, and bearing a
Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Purchase Contract
Agent (i) evidence to their satisfaction of the destruction, loss or theft of
any Certificate, and (ii) such security or indemnity as may be required by them
to hold each of them and any agent of any of them harmless, then, in the absence
of notice to the Company or the Purchase Contract Agent that such Certificate
has been acquired by a bona fide purchaser, the Company shall execute and
deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall
authenticate, execute on behalf of the Holder, and deliver to the Holder, in
lieu of any such destroyed, lost or stolen Certificate, a new Certificate,
evidencing the same number of Corporate PIES or Treasury PIES, as the case may
be, and bearing a Certificate number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall not be obligated to authenticate, execute on behalf of the Holder,
and deliver to the Holder, a Certificate on or after the Business Day
immediately preceding the earlier of the Purchase Contract Settlement Date or
the Termination Date. In lieu of delivery of a new Certificate, upon
satisfaction of the applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from such Holder,
the Purchase Contract Agent shall:
(1) if the Purchase Contract Settlement Date has occurred, deliver the
shares of Common Stock issuable in respect of the Purchase Contracts
forming a part of the Securities evidenced by such Certificate; or
(2) if a Termination Event shall have occurred prior to the Purchase
Contract Settlement Date, transfer the Senior Notes or the Treasury
Securities, as the case may be, evidenced thereby,
in each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
Upon the issuance of any new Certificate under this Section, the
Company and the Purchase Contract Agent may require the payment by the Holder of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Purchase Contract Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Certificate shall constitute an original additional
contractual obligation of the Company and of the Holder in respect of the
Security evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Securities evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of this Agreement equally and proportionately with any
and all other Certificates delivered hereunder.
22
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.11. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of
transfer, the Company and the Purchase Contract Agent, and any agent of the
Company or the Purchase Contract Agent, may treat the Person in whose name such
Certificate is registered as the owner of the Corporate PIES or Treasury PIES
evidenced thereby, for the purpose of receiving interest payments on the Senior
Notes, receiving Contract Adjustment Payments, performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not any interest
payments on the Senior Notes or the Contract Adjustment Payments payable in
respect of the Purchase Contracts constituting a part of the Corporate PIES or
Treasury PIES evidenced thereby shall be overdue and notwithstanding any notice
to the contrary, and neither the Company nor the Purchase Contract Agent, nor
any agent of the Company or the Purchase Contract Agent, shall be affected by
notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Certificate,
nothing contained herein shall prevent the Company, the Purchase Contract Agent
or any agent of the Company or the Purchase Contract Agent, from giving effect
to any written certification, proxy or other authorization furnished by any
Clearing Agency (or its nominee), as a Holder, with respect to such Global
Certificate or impair, as between such Clearing Agency and owners of beneficial
interests in such Global Certificate, the operation of customary practices
governing the exercise of rights of such Clearing Agency (or its nominee) as
Holder of such Global Certificate.
Section 3.12. Cancellation.
All Certificates surrendered for delivery of shares of Common Stock on
or after the Purchase Contract Settlement Date, upon the transfer of Senior
Notes or Treasury Securities, as the case may be, after the occurrence of a
Termination Event or pursuant to an Early Settlement, or upon the registration
of a transfer or exchange of a Security, or a Collateral Substitution or the
reestablishment of Corporate PIES shall, if surrendered to any Person other than
the Purchase Contract Agent, be delivered to the Purchase Contract Agent and, if
not already cancelled, shall be promptly cancelled by it. The Company may at
any time deliver to the Purchase Contract Agent for cancellation any
Certificates previously authenticated, executed and delivered hereunder which
the Company may have acquired in any manner whatsoever, and all Certificates so
delivered shall, upon Issuer Order, be promptly cancelled by the Purchase
Contract Agent. No Certificates shall be authenticated, executed on behalf of
the Holder and delivered in lieu of or in exchange for any Certificates
cancelled as provided in this Section, except as expressly permitted by this
Agreement. All cancelled Certificates held by the Purchase Contract Agent shall
be disposed of by the Purchase Contract Agent in accordance with its customary
procedures.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Purchase
Contract Agent cancelled or for cancellation.
23
Section 3.13. Creation of Treasury PIES by Substitution of Treasury Securities.
A Holder may separate the Senior Notes from the related Purchase
Contracts in respect of such Holder's Corporate PIES by substituting for such
Senior Notes Treasury Securities in an aggregate principal amount equal to the
aggregate principal amount of such Senior Notes (a "Collateral Substitution"),
at any time from and after the date of this Agreement and on or prior to the
seventh Business Day immediately preceding the Purchase Contract Settlement Date
by:
(1) depositing with the Securities Intermediary Treasury Securities
having an aggregate principal amount equal to the aggregate principal
amount of the Senior Notes comprising part of such Corporate PIES; and
(2) transferring the related Corporate PIES to the Purchase Contract
Agent accompanied by a notice to the Purchase Contract Agent, substantially
in the form of Exhibit C hereto, stating that the Holder has transferred
the relevant amount of Treasury Securities to the Securities Intermediary
and requesting that the Purchase Contract Agent instruct the Collateral
Agent to release the Senior Notes underlying such Corporate PIES, whereupon
the Purchase Contract Agent shall promptly give such instruction to the
Collateral Agent, substantially in the form of Exhibit A to the Pledge
Agreement.
Upon receipt of the Treasury Securities described in clause (1) above and the
instruction described in clause (2) above, in accordance with the terms of the
Pledge Agreement, the Collateral Agent will cause the Securities Intermediary to
effect the release of such Senior Notes from the Pledge, free and clear of the
Company's security interest therein, and the transfer of such Senior Notes to
the Purchase Contract Agent on behalf of the Holder. Upon receipt thereof, the
Purchase Contract Agent shall promptly:
(i) cancel the related Corporate PIES;
(ii) transfer the Senior Notes to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver a Treasury
PIES Certificate executed by the Company in accordance with Section 3.3
evidencing the same number of Purchase Contracts as were evidenced by the
cancelled Corporate PIES.
Holders who elect to separate the Senior Notes from the related
Purchase Contracts and to substitute Treasury Securities for such Senior Notes
shall be responsible for any fees or expenses payable to the Collateral Agent
for its services as Collateral Agent in respect of the substitution, and the
Company shall not be responsible for any such fees or expenses.
Holders may make Collateral Substitutions only in integral multiples
of 20 Corporate PIES.
In the event a Holder making a Collateral Substitution pursuant to
this Section 3.13 fails to effect a book-entry transfer of the Corporate PIES or
fails to deliver Corporate PIES Certificates to the Purchase Contract Agent
after depositing Treasury Securities with the Collateral 0Agent, the Senior
Notes, constituting a part of such Corporate PIES, and any interest payments on
such Senior Notes, shall be held in the name of the Purchase Contract Agent or
its nominee in trust
24
for the benefit of such Holder, until such Corporate PIES are so transferred or
the Corporate PIES Certificates are so delivered, as the case may be, or, with
respect to the Corporate PIES Certificates, such Holder provides evidence
satisfactory to the Company and the Purchase Contract Agent that such Corporate
PIES Certificates have been destroyed, lost or stolen, together with any
indemnity that may be required by the Purchase Contract Agent and the Company.
Except as described in this Section 3.13, for so long as the Purchase
Contract underlying a Corporate PIES remains in effect, such Corporate PIES
shall not be separable into its constituent parts, and the rights and
obligations of the Holder in respect of the Senior Note and the Purchase
Contract comprising such Corporate PIES may be acquired, and may be transferred
and exchanged, only as a Corporate PIES.
Section 3.14. Reestablishment of Corporate PIES.
A Holder of a Treasury PIES may recreate Corporate PIES at any time on
or prior to the seventh Business Day immediately preceding the Purchase Contract
Settlement Date by:
(1) depositing with the Securities Intermediary Senior Notes having an
aggregate principal amount equal to the aggregate principal amount at
maturity of the Treasury Securities comprising part of the Treasury PIES;
and
(2) transferring the related Treasury PIES to the Purchase Contract
Agent accompanied by a notice to the Purchase Contract Agent, substantially
in the form of Exhibit C hereto, (i) stating that the Holder has
transferred the relevant amount of Senior Notes to the Securities
Intermediary and (ii) requesting that the Purchase Contract Agent instruct
the Collateral Agent to release the Treasury Securities underlying such
Treasury PIES, whereupon the Purchase Contract Agent shall promptly give
such instruction to the Collateral Agent, substantially in the form of
Exhibit C to the Pledge Agreement.
Upon receipt of the Senior Notes described in clause (1) above and the
instruction described in clause (2) above, in accordance with the terms of the
Pledge Agreement, the Collateral Agent will cause the Securities Intermediary to
effect the release of the Treasury Securities having a corresponding aggregate
principal amount at maturity from the Pledge to the Purchase Contract Agents
free and clear of the Company's security interest therein, and the transfer of
such Treasury Securities to the Purchase Contract Agent on behalf of the Holder.
Upon receipt thereof the Purchase Contract Agent shall promptly:
(i) cancel the related Treasury PIES;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver a
Corporate PIES Certificate executed by the Company in accordance with Section
3.3 evidencing the same number of Purchase Contracts as were evidenced by the
cancelled Treasury PIES.
Holders who elect to recreate Corporate PIES 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.
25
Holders of Treasury PIES may reestablish Corporate PIES in integral
multiples of 20 Treasury PIES for 20 Corporate PIES.
Except as provided in this Section 3.14, for so long as the Purchase
Contract underlying a Treasury PIES remains in effect, such Treasury PIES shall
not be separable into its constituent parts and the rights and obligations of
the Holder of such Treasury PIES in respect of the 1/20 of a Treasury Security
and the Purchase Contract comprising such Treasury PIES may be acquired, and may
be transferred and exchanged, only as a Treasury PIES.
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event.
Upon the occurrence of a Termination Event and the transfer to the
Purchase Contract Agent of the Senior Notes or the Treasury Securities, as the
case may be, underlying the Corporate PIES and the Treasury PIES, as the case
may be, pursuant to the terms of the Pledge Agreement, the Purchase Contract
Agent shall request transfer instructions with respect to such Senior Notes or
Treasury Securities, as the case may be, from each Holder by written request,
substantially in the form of Exhibit D hereto, mailed to such Holder at its
address as it appears in the Corporate PIES Register or the Treasury PIES
Register, as the case may be.
Upon book-entry transfer of the Corporate PIES or Treasury PIES or
delivery of a Corporate PIES Certificate or Treasury PIES Certificate to the
Purchase Contract Agent with such transfer instructions, the Purchase Contract
Agent shall transfer the Senior Notes or Treasury Securities, as the case may
be, underlying such Corporate PIES or Treasury PIES, as the case may be, to such
Holder by book-entry transfer, or other appropriate procedures, in accordance
with such instructions. In the event a Holder of Corporate PIES or Treasury
PIES fails to effect such transfer or delivery, the Senior Notes or Treasury
Securities, as the case may be, underlying such Corporate PIES or Treasury PIES,
as the case may be, and any interest thereon, shall be held in the name of the
Purchase Contract Agent or its nominee in trust for the benefit of such Holder,
until the earlier of:
(1) such Corporate PIES or Treasury PIES are transferred or the
Corporate PIES Certificate or Treasury PIES Certificate is surrendered or
such Holder provides satisfactory evidence that such Corporate PIES
Certificate or Treasury PIES Certificate has been destroyed, lost or
stolen, together with any indemnity that may be required by the Purchase
Contract Agent and the Company; and
(2) the expiration of the time period specified in the abandoned
property laws of the relevant State.
Section 3.16. No Consent to Assumption.
Each Holder of a Security, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365 of
the Bankruptcy Code or otherwise, of the Purchase Contract by the Company or its
trustee, receiver, liquidator or a person or entity performing similar functions
in the event that the Company becomes the debtor under the Bankruptcy Code or
subject to other similar state or federal law providing for reorganization or
liquidation.
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ARTICLE IV
The Senior Notes
Section 4.1. Interest Payments; Rights to Interest Preserved.
An interest payment on any Senior Note which is paid on any Payment
Date shall, subject to receipt thereof by the Purchase Contract Agent from the
Collateral Agent as provided by the terms of the Pledge Agreement, be paid to
the Person in whose name the Corporate PIES Certificate (or one or more
Predecessor Corporate PIES Certificates) of which such Senior Note is a part is
registered at the close of business on the Record Date for such Payment Date.
Each Corporate PIES Certificate evidencing the Senior Note delivered
under this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Corporate PIES Certificate shall carry the right to accrued
and unpaid interest, and the right to accrue interest, which rights were carried
by the Senior Note underlying such other Corporate PIES Certificate.
In the case of any Corporate PIES with respect to which Cash
Settlement of the underlying Purchase Contract is effected on or prior to the
fifth Business Day immediately preceding the Purchase Contract Settlement Date
pursuant to prior notice, or with respect to which Early Settlement of the
underlying Purchase Contract is effected on an Early Settlement Date, or with
respect to which a Collateral Substitution is effected, in each case on a date
that is after any Record Date and on or prior to the next succeeding Payment
Date, the interest payment on the Senior Note underlying such Corporate PIES
otherwise payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Cash Settlement or Early Settlement or Collateral
Substitution, and such interest payment shall, subject to receipt thereof by the
Purchase Contract Agent, be payable to the Person in whose name the Corporate
PIES Certificate (or one or more Predecessor Corporate PIES Certificates) was
registered at the close of business on the Record Date. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any
Corporate PIES with respect to which Cash Settlement or Early Settlement of the
underlying Purchase Contract is effected on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date or an Early
Settlement Date, as the case may be, or with respect to which a Collateral
Substitution has been effected, interest payments on the related Senior Notes
that would otherwise be payable after the Purchase Contract Settlement Date or
Early Settlement Date shall not be payable hereunder to the Holder of such
Corporate PIES; provided, however, that to the extent that such Holder continues
to hold the separated Senior Note that formerly comprised a part of such
Holder's Corporate PIES, such Holder shall be entitled to receive the interest
payments on such separated Senior Note, as provided in the Supplemental
Indenture.
Section 4.2. Interest Rate Reset.
The applicable interest rate borne by the Senior Notes on and after
the Purchase Contract Settlement Date shall be reset pursuant to the Remarketing
on the third Business Day immediately preceding the Purchase Contract Settlement
Date equal to the Reset Rate (such Reset Rate to be in effect on and after the
Purchase Contract Settlement Date).
27
Section 4.3. Notice and Voting.
Under the terms of the Pledge Agreement, the Purchase Contract Agent
will be entitled to exercise the voting and any other consensual rights
pertaining to the Pledged Senior Notes, but only to the extent instructed in
writing by the Holders as described below. Upon receipt of notice of any
meeting at which holders of Senior Notes are entitled to vote or upon any
solicitation of consents, waivers or proxies of holders of Senior Notes, the
Purchase Contract Agent shall, as soon as practicable thereafter, mail to the
Holders of Corporate PIES a notice:
(1) containing such information as is contained in the notice or
solicitation;
(2) stating that each Holder on the record date set by the Purchase
Contract Agent therefor (which, to the extent possible, shall be the same
date as the record date for determining the holders of Senior Notes
entitled to vote) shall be entitled to instruct the Purchase Contract Agent
as to the exercise of the voting rights pertaining to such Senior Notes
underlying their Corporate PIES; and
(3) stating the manner in which such instructions may be given.
Upon the written request of the Holders of Corporate PIES on such record date
received by the Purchase Contract Agent at least six days prior to such meeting,
the Purchase Contract Agent shall endeavor insofar as practicable to vote or
cause to be voted, in accordance with the instructions set forth in such
requests, the maximum principal amount of Senior Notes as to which any
particular voting instructions are received. In the absence of specific
instructions from the Holder of Corporate PIES, the Purchase Contract Agent
shall abstain from voting the Senior Notes underlying such Corporate PIES. The
Company hereby agrees, if applicable, to solicit Holders of Corporate PIES to
timely instruct the Purchase Contract Agent in order to enable the Purchase
Contract Agent to vote such Senior Notes.
ARTICLE V
The Purchase Contracts
Section 5.1. Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless an Early Settlement has occurred
in accordance with Section 5.9 hereof, obligate the Holder of the related
Security to purchase, and the Company to sell, on the Purchase Contract
Settlement Date at a price equal to the Stated Amount (the "Purchase Price"), a
number of newly issued shares of Common Stock equal to the Settlement Rate
unless, on or prior to the Purchase Contract Settlement Date, there shall have
occurred a Termination Event with respect to the Security of which such Purchase
Contract is a part. The "Settlement Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is equal to or
greater than $61.20 (the "Threshold Appreciation Price"), 0.8170 shares of
Common Stock per Purchase Contract;
28
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price, but greater than $51.00 (the "Reference Price") the
number of shares of Common Stock having a value, based on the Applicable
Market Value, equal to the Stated Amount; and
(3) if the Applicable Market Value is less than or equal to the
Reference Price, 0.9804 shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in Section 5.6 (and in each case
rounded upward or downward to the nearest 1/10,000th of a share).
As provided in Section 5.10, no fractional shares of Common Stock will
be issued upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Price
per share of Common Stock on each of the 20 Trading Days ending on the third
Trading Day immediately preceding the Purchase Contract Settlement Date.
The "Closing Price" per share of the Common Stock on any date of
determination means:
(1) the closing sale price (or, if no closing price is reported, the
last reported sale price) per share of the Common Stock on the New York
Stock Exchange (the "NYSE") on such date;
(2) if the Common Stock is not listed for trading on the NYSE on any
such date, the closing sale price per share as reported in the composite
transactions for the principal United States securities exchange on which
the Common Stock is so listed;
(3) if the Common Stock is not so listed on a United States national
or regional securities exchange, the closing sale price per share as
reported by The Nasdaq Stock Market;
(4) if the Common Stock is not so reported, the last quoted bid price
per share for the Common Stock in the over-the-counter market as reported
by the National Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-point
of the last bid and ask prices per share of the Common Stock on such date
from at least three nationally recognized independent investment banking
firms retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a Corporate PIES or a Treasury PIES, by its acceptance
thereof:
29
(1) irrevocably authorizes the Purchase Contract Agent to enter into
and perform the related Purchase Contract on its behalf as its attorney-in-
fact (including the execution of Certificates on behalf of such Holder);
(2) agrees to be bound by the terms and provisions thereof;
(3) covenants and agrees to perform its obligations under such
Purchase Contracts;
(4) consents to the provisions hereof;
(5) irrevocably authorizes the Purchase Contract Agent to enter into
and perform this Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact; and
(6) consents to and agrees to be bound by the Pledge of the Senior
Notes or the Treasury Securities pursuant to the Pledge Agreement;
provided that upon a Termination Event, the rights of the Holder of such
Security under the Purchase Contract may be enforced without regard to any other
rights or obligations. Each Holder of a Corporate PIES or a Treasury PIES, by
its acceptance thereof, further covenants and agrees, that to the extent and in
the manner provided in Section 5.4 and the Pledge Agreement, but subject to the
terms thereof, Proceeds from the Remarketing of the Senior Notes or the Proceeds
from the Treasury Securities at maturity on the Purchase Contract Settlement
Date, as the case may be, shall be paid by the Collateral Agent to the Company
in satisfaction of such Holder's obligations under such Purchase Contract and
such Holder shall acquire no right, title or interest in such payments.
Upon registration of transfer of a Certificate, the transferee shall
be bound (without the necessity of any other action on the part of such
transferee) by the terms of this Agreement, the Purchase Contracts underlying
such Certificate and the Pledge Agreement and the transferor shall be released
from the obligations under this Agreement, the Purchase Contracts underlying the
Certificates so transferred and the Pledge Agreement. The Company covenants and
agrees, and each Holder of a Certificate, by its acceptance thereof, likewise
covenants and agrees, to be bound by the provisions of this paragraph.
Section 5.2. Contract Adjustment Payments.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name a Certificate (or one or more Predecessor Certificates) is registered at
the close of business on the Record Date next preceding such Payment Date. The
Contract Adjustment Payments will be payable at the office of the Purchase
Contract Agent in The City of New York maintained for that purpose or, at the
option of the Company, by check mailed to the address of the Person entitled
thereto at such Person's address as it appears on the Corporate PIES Register or
Treasury PIES Register. If any date on which Contract Adjustment Payments are
to be made is not a Business Day, then payment of the Contract Adjustment
Payments payable on such date will be made on the next day that is a Business
Day (and without any interest in respect of any such delay), except that, if
such Business Day is in the next calendar year, such payment will be made on the
preceding Business Day.
30
Upon the occurrence of a Termination Event, the Company's obligation
to pay Contract Adjustment Payments (including any accrued Contract Adjustment
Payments) shall cease.
Each Certificate delivered under this Agreement upon registration of
transfer of or in exchange for or in lieu of (including as a result of a
Collateral Substitution or the reestablishment of Corporate PIES) any other
Certificate shall carry the right to accrued and unpaid Contract Adjustment
Payments, and the right to accrue Contract Adjustment Payments, which rights
were carried by the Purchase Contracts underlying such other Certificates.
Subject to Section 5.9, in the case of any Security with respect to
which Early Settlement of the underlying Purchase Contract is effected on an
Early Settlement Date that is after any Record Date and on or prior to the next
succeeding Payment Date, Contract Adjustment Payments otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Early
Settlement, and such Contract Adjustment Payments shall be paid to the Person in
whose name the Certificate evidencing such Security (or one or more Predecessor
Certificates) is registered at the close of business on such Record Date.
Except as otherwise expressly provided in the immediately preceding sentence, in
the case of any Security with respect to which Early Settlement of the
underlying Purchase Contract is effected on an Early Settlement Date, Contract
Adjustment Payments that would otherwise be payable after the Early Settlement
Date with respect to such Purchase Contract shall not be payable.
Section 5.3. [Intentionally omitted].
Section 5.4. Payment of Purchase Price.
(a) (i) Unless a Holder effects an Early Settlement of the underlying
Purchase Contract in the manner described in Section 5.9, each Holder of a
Corporate PIES who intends to pay in cash to satisfy such Holder's obligation
under the Purchase Contract shall notify the Purchase Contract Agent by use of a
notice in substantially the form of Exhibit E hereto of its intention to pay in
cash ("Cash Settlement") the Purchase Price for the shares of Common Stock to be
purchased pursuant to the related Purchase Contract. Such notice shall be given
prior to 5:00 p.m. (New York City time) on the seventh Business Day immediately
preceding the Purchase Contract Settlement Date. Prior to 11:00 a.m. (New York
City time) on the next succeeding Business Day, the Purchase Contract Agent
shall notify the Collateral Agent and the Indenture Trustee of the receipt of
such notices from Holders intending to make a Cash Settlement.
(ii) A Holder of a Corporate PIES who has so notified the Purchase
Contract Agent of its intention to make a Cash Settlement in accordance with
paragraph (a) (i) above shall pay the Purchase Price to the Securities
Intermediary for deposit in the Collateral Account prior to 11:00 a.m. (New York
City time) on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date in lawful money of the United States by certified or cashiers'
check or wire transfer, in each case in immediately available funds payable to
or upon the order of the Securities Intermediary. Any cash received by the
Collateral Agent shall be invested promptly by the Securities Intermediary in
Permitted Investments and paid to the Company on the Purchase Contract
Settlement Date in settlement of the Purchase Contract in accordance with the
terms of this Agreement and the Pledge Agreement. Any funds received by the
Securities Intermediary in respect of the investment earnings from the
investment in such Permitted Investments shall be distributed to the Purchase
31
Contract Agent when received for payment to the Holder of the related Corporate
PIES on the Purchase Contract Settlement Date.
(iii) If a Holder of a Corporate PIES fails to notify the Purchase
Contract Agent of its intention to make a Cash Settlement in accordance with
paragraph (a)(i) above, or does notify the Purchase Contract Agent as provided
in paragraph (a)(i) above of its intention to pay the Purchase Price in cash but
fails to make such payment as required by paragraph (a)(ii) above, such Holder
shall be deemed to have consented to the disposition of the Pledged Senior Notes
pursuant to the Remarketing as described in paragraph (b) below.
(iv) Promptly after 11:00 a.m., New York City time, on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, the
Purchase Contract Agent, based on notices received by the Purchase Contract
Agent pursuant to Section 5.4(a)(i) hereof and notice from the Securities
Intermediary regarding cash received by it prior to such time, shall notify the
Collateral Agent and the Indenture Trustee of the aggregate principal amount of
Senior Notes to be tendered for purchase in the Remarketing in a notice
substantially in the form of Exhibit F hereto.
(v) Not later than 15 calendar days nor more than 30 calendar days
prior to the third Business Day immediately preceding the Purchase Contract
Settlement Date, the Company shall request DTC (or any successor Clearing
Agency), to notify the Beneficial Owners or Clearing Agency Participants holding
Corporate PIES of the procedures to be followed by Holders of Corporate PIES who
intend to effect a Cash Settlement on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date.
(b) In order to dispose of the Senior Notes, Corporate PIES Holders
who have not notified the Purchase Contract Agent of their intention to effect a
Cash Settlement as provided in paragraph (a)(i) above, or who have so notified
the Purchase Contract Agent but failed to make such payment as required by
paragraph (a)(ii) above, the Company shall engage Xxxxxx Brothers Inc. (the
"Remarketing Agent") pursuant to the Remarketing Agreement to sell such Senior
Notes. In order to facilitate the Remarketing, the Purchase Contract Agent,
based on the notices specified in Section 5.4(a)(iv), shall notify the
Remarketing Agent, promptly after 11:00 a.m. (New York City time) on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, of the
aggregate principal amount of Senior Notes that are part of Corporate PIES to be
remarketed. Concurrently, the Collateral Agent, pursuant to the terms of the
Pledge Agreement, shall cause such Senior Notes to be presented to the
Remarketing Agent for Remarketing.
Upon receipt of such notice from the Purchase Contract Agent and such
Senior Notes, the Remarketing Agent shall, on the third Business Day immediately
preceding the Purchase Contract Settlement Date, use commercially reasonable
efforts to remarket such Senior Notes on such date at a price equal to 100.25%
of the aggregate principal amount of such Senior Notes, as provided in the
Remarketing Agreement. The proceeds from the Remarketing equal to 100% of the
aggregate principal amount of the remarketed Senior Notes shall automatically be
applied by the Collateral Agent, in accordance with the Pledge Agreement, to
satisfy in full such Corporate PIES Holders' obligations to pay the Purchase
Price for the shares of Common Stock under the related Purchase Contracts on the
Purchase Contract Settlement Date. The proceeds equal to .25% of the aggregate
principal amount of the remarketed Senior Notes shall be retained by the
Remarketing Agent for services rendered in connection with the Remarketing (the
"Remarketing Fee").
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If, in spite of using their commercially reasonable efforts, the
Remarketing Agent cannot remarket the related Senior Notes of such Holders of
Corporate PIES at a price of 100.25% of the aggregate principal amount of such
Senior Notes, the Remarketing shall be deemed to have failed (a "Failed
Remarketing") and in accordance with the terms of the Pledge Agreement, the
Collateral Agent, for the benefit of the Company, shall exercise its rights as a
secured party with respect to such Senior Notes, including those actions
specified in paragraph (c) below; provided, that if upon a Failed Remarketing
the Collateral Agent exercises such rights for the benefit of the Company with
respect to such Senior Notes, any accrued and unpaid interest on such Senior
Notes shall become payable by the Company to the Purchase Contract Agent for
payment to the registered owner of the Corporate PIES to which such Senior Notes
relate. The Company shall cause a notice of such Failed Remarketing to be
published no later than the Business Day immediately preceding the Purchase
Contract Settlement Date in a daily newspaper in the English language of general
circulation in The City of New York, which is expected to be The Wall Street
Journal.
(c) With respect to any Senior Notes which are subject to a Failed
Remarketing, the Collateral Agent for the benefit of the Company reserves all of
its rights as a secured party with respect thereto and, subject to applicable
law and paragraph (g) below, may, among other things, (i) retain the Senior
Notes in full satisfaction of the Holders' obligations under the Purchase
Contracts or (ii) sell the Senior Notes in one or more public or private sales.
(d) (i) Unless a Holder of a Treasury PIES effects an Early
Settlement of the underlying Purchase Contract in the manner described in
Section 5.9, each Holder of a Treasury PIES who intends to pay in cash to
satisfy such Holder's obligation under the Purchase Contract shall notify the
Purchase Contract Agent by use of a notice in substantially the form of Exhibit
E hereto of its intention to pay in cash the Purchase Price for the shares of
Common Stock to be purchased pursuant to the related Purchase Contract. Such
notice shall be given on or prior to 5:00 p.m. (New York City time) on the
second Business Day immediately preceding the Purchase Contract Settlement Date.
Prior to 11:00 a.m. (New York City time) on the next succeeding Business Day,
the Purchase Contract Agent shall notify the Collateral Agent of the receipt of
such notices from such Holders intending to make a Cash Settlement.
(ii) A Holder of a Treasury PIES who has so notified the Purchase
Contract Agent of its intention to make a Cash Settlement in accordance with
paragraph (d)(i) above shall pay the Purchase Price to the Securities
Intermediary for deposit in the Collateral Account prior to 11:00 a.m. (New York
City time) on the Business Day immediately preceding the Purchase Contract
Settlement Date in lawful money of the United States by certified or cashiers'
check or wire transfer, in each case in immediately available funds payable to
or upon the order of the Securities Intermediary. Any cash received by the
Collateral Agent shall be invested promptly by the Securities Intermediary in
Permitted Investments and paid to the Company on the Purchase Contract
Settlement Date in settlement of the Purchase Contract in accordance with the
terms of this Agreement and the Pledge Agreement. Any funds received by the
Securities Intermediary in respect of the investment earnings from the
investment in such Permitted Investments shall be distributed to the Purchase
Contract Agent when received for payment to the Holder of the related Treasury
PIES on the Purchase Contract Settlement Date.
(iii) If a Holder of a Treasury PIES fails to notify the Purchase
Contract Agent of its intention to make a Cash Settlement in accordance with
paragraph (d)(i) above, or does notify the
33
Purchase Contract Agent as provided in paragraph (d)(i) above of its intention
to pay the Purchase Price in cash but fails to make such payment as required by
paragraph (d)(ii) above, then upon the maturity of the Pledged Treasury
Securities held by the Securities Intermediary on the Business Day immediately
prior to the Purchase Contract Settlement Date, the principal amount of the
Treasury Securities received by the Securities Intermediary shall be invested
promptly in Permitted Investments.
On the Purchase Contract Settlement Date, an amount equal to the
Purchase Price shall be remitted to the Company as payment thereof without
receiving any instructions from the Holder of the related Treasury PIES. In the
event the sum of the proceeds from the related Pledged Treasury Securities and
the investment earnings earned from such investments is in excess of the
aggregate Purchase Price of the Purchase Contracts being settled thereby, the
Collateral Agent shall cause the Securities Intermediary to distribute such
excess to the Purchase Contract Agent for the benefit of the Holder of the
related Treasury PIES when received.
(iv) If a Holder of a Treasury PIES continues to hold the Senior Note
originally part of the Corporate PIES that was converted into the Treasury PIES,
such Holder may elect to have such Senior Note remarketed. A Holder making such
an election must notify the Indenture Trustee prior to 11:00 a.m. (New York City
time) on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, by use of a notice in substantially the form of Exhibit G
hereto, of the aggregate principal amount of Senior Notes that are not part of
Corporate PIES to be remarketed. Any such notice will be irrevocable and may
not be conditioned upon the level at which the Reset Rate is established in the
Remarketing. Concurrently, the Indenture Trustee shall cause such Senior Notes
to be presented to the Remarketing Agent for Remarketing.
(e) Any distribution to Holders of excess funds and interest described
above shall be payable at the office of the Purchase Contract Agent in The City
of New York maintained for that purpose or, at the option of the Holder, by
check mailed to the address of the Person entitled thereto at such address as it
appears on the Register.
(f) Upon Cash Settlement of any Purchase Contract:
(1) the Collateral Agent will in accordance with the terms of the
Pledge Agreement cause the Pledged Senior Notes or the Pledged Treasury
Securities, as the case may be, underlying the relevant Security to be
released from the Pledge free and clear of any security interest of the
Company and transferred to the Purchase Contract Agent for delivery to the
Holder thereof or its designee as soon as practicable; and
(2) subject to the receipt thereof, the Purchase Contract Agent shall,
by book-entry transfer or other appropriate procedures, in accordance with
written instructions provided by the Holder thereof, transfer such Senior
Notes or such Treasury Securities, as the case may be (or, if no such
instructions are given to the Purchase Contract Agent by the Holder, the
Purchase Contract Agent shall hold such Senior Notes or such Treasury
Securities, as the case may be, and any interest payment thereon, in the
name of the Purchase Contract Agent or its nominee in trust for the benefit
of such Holder until the expiration of the time period specified in the
abandoned property laws of the relevant State).
34
(g) The obligations of the Holders to pay the Purchase Price are non-
recourse obligations and, except to the extent paid by Early Settlement or Cash
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 the proceeds of the disposition of Collateral and the
Purchase Price.
(h) The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates thereof to
the Holder of the related Corporate PIES or Treasury PIES unless the Company
shall have received payments in full for the aggregate purchase price for the
shares of Common Stock to be purchased thereunder in the manner herein set
forth.
Section 5.5. Issuance of Shares of Common Stock.
Unless a Termination Event or an Early Settlement shall have occurred,
subject to Section 5.6(b), the Company shall issue and deposit with the Purchase
Contract Agent, for the benefit of the Holders of the Outstanding Securities,
one or more certificates representing the newly issued shares of Common Stock
registered in the name of the Purchase Contract Agent (or its nominee) as
custodian for the Holders (such certificates for shares of Common Stock,
together with any dividends or distributions for which a record date and payment
date for such dividend or distribution has occurred after the Purchase Contract
Settlement Date, being hereinafter referred to as the "Purchase Contract
Settlement Fund") to which the Holders are entitled hereunder.
Subject to the foregoing, upon surrender of a Certificate to the
Purchase Contract Agent on or after the Purchase Contract Settlement Date,
together with settlement instructions thereon duly completed and executed, the
Holder of such Certificate shall be entitled to receive in exchange therefor a
certificate representing that number of whole shares of Common Stock which such
Holder is entitled to receive pursuant to the provisions of this Article Five
(after taking into account all Securities then held by such Holder), together
with cash in lieu of fractional shares as provided in Section 5.10 and any
dividends or distributions with respect to such shares constituting part of the
Purchase Contract Settlement Fund, but without any interest thereon, and the
Certificate so surrendered shall forthwith be cancelled. Such shares shall be
registered in the name of the Holder or the Holder's designee as specified in
the settlement instructions provided by the Holder to the Purchase Contract
Agent. If any shares of Common Stock issued in respect of a Purchase Contract
are to be registered to a Person other than the Person in whose name the
Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Certificate evidencing such
Purchase Contract or has established to the satisfaction of the Company that
such tax either has been paid or is not payable.
Section 5.6. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on the Common Stock in Common Stock, the Settlement Rate in
effect at the opening of business on the day following the date fixed for
the determination of shareholders entitled to receive such
35
dividend or other distribution shall be increased by dividing such
Settlement Rate by a fraction of which:
(i) the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination; and
(ii) and the denominator shall be the sum of such number of shares and the
total number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all
holders of Common Stock (not being available on an equivalent basis to
Holders of the Securities upon settlement of the Purchase Contracts
underlying such Securities) entitling them, for a period expiring within 45
days after the record date for the determination of shareholders entitled
to receive such rights, options or warrants, to subscribe for or purchase
shares of Common Stock at a price per share less than the Current Market
Price per share of Common Stock on the date fixed for the determination of
shareholders entitled to receive such rights, options or warrants (other
than pursuant to a dividend reinvestment plan), the Settlement Rate in
effect at the opening of business on the day following the date fixed for
such determination shall be increased by dividing such Settlement Rate by a
fraction of which:
(i) the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination plus the
number of shares of Common Stock which the aggregate of the offering price of
the total number of shares of Common Stock so offered for subscription or
purchase would purchase at such Current Market Price; and
(ii) the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock so offered for subscription or
purchase,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (2), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
any shares issuable in respect of any scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company shall not issue any such
rights, options or warrants in respect of shares of Common Stock held in the
treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided or
split into a greater number of shares of Common Stock, the Settlement Rate
in effect at the opening of
36
business on the day following the day upon which such subdivision or split
becomes effective shall be proportionately increased, and, conversely, in
case outstanding shares of Common Stock shall each be combined into a
smaller number of shares of Common Stock, the Settlement Rate in effect at
the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately reduced, such
increase or reduction, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which such
subdivision, split or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to
all holders of Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights, options or warrants
referred to in paragraph (2) of this Section 5.6(a), any dividend or
distribution paid exclusively in cash and any dividend or distribution
referred to in paragraph (1) of this Section 5.6(a)), the Settlement Rate
shall be adjusted so that the same shall equal the rate determined by
dividing the Settlement Rate in effect immediately prior to the close of
business on the date fixed for the determination of shareholders entitled
to receive such distribution by a fraction of which:
(i) the numerator shall be the Current Market Price per share of Common
Stock on the date fixed for such determination less the then fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of the portion of the assets or
evidences of indebtedness so distributed applicable to one share of Common
Stock; and
(ii) the denominator shall be such Current Market Price per share of Common
Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following the date fixed for the determination of shareholders
entitled to receive such distribution. In any case in which this paragraph (4)
is applicable, paragraph (2) of this Section 5.6(a) shall not be applicable.
(5) In case the Company shall, by dividend or otherwise, distribute to
all holders of Common Stock (I) cash (excluding any cash that is
distributed in a Reorganization Event to which Section 5.6(b) applies or as
part of a distribution referred to in paragraph (4) of this Section 5.6(a))
in an aggregate amount that, combined together with the aggregate amount of
any other distributions to all holders of Common Stock made exclusively in
cash (other than in connection with a Reorganization Event) within the 12
months preceding the date of payment of such distribution and in respect of
which no adjustment pursuant to this paragraph (5) or paragraph (6) of this
Section has been made and (II) the aggregate of any cash plus the fair
market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) of consideration
payable in respect of any tender or exchange offer by the Company or any of
its subsidiaries for all or any portion of Common Stock concluded within
the 12 months preceding the date of payment of the distribution described
in Clause (I) above and in respect of which no adjustment pursuant to this
paragraph (5) or paragraph (4) or paragraph (6) of this Section 5.6(a) has
been made, exceeds 15% of the product of the Current Market Price per share
of Common Stock on the
37
date for the determination of holders of shares of Common Stock entitled to
receive such distribution times the number of shares of Common Stock
outstanding on such date, then, and in each such case, immediately after
the close of business on such date for determination, the Settlement Rate
shall be increased so that the same shall equal the rate determined by
dividing the Settlement Rate in effect immediately prior to the close of
business on the date fixed for determination of the shareholders entitled
to receive such distribution by a fraction or which:
(i) the numerator shall be equal to the Current Market Price per share of
the Common Stock on the date fixed for such determination less an amount equal
to the quotient of (x) the combined amount distributed or payable in the
transactions described in clauses (I) and (II) above divided by (y) the number
of shares of Common Stock outstanding on such date for determination; and
(ii) the denominator shall be equal to the Current Market Price per share of
Common Stock on such date for determination.
(6) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to shareholders (based on the acceptance
(up to any maximum specified in the terms of the tender or exchange offer)
of Purchased Shares) of (I) an aggregate consideration having a fair market
value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution) that combined together
with the aggregate of the cash plus the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution), as of the expiration of such tender or
exchange offer, of consideration payable in respect of any other tender or
exchange offer, by the Company or any subsidiary of the Company for all or
any portion of the Common Stock expiring within the 12 months preceding the
expiration of such tender or exchange offer and in respect of which no
adjustment pursuant to paragraph (5) of this Section 5.6(a) or this
paragraph (6) has been made, and (II) the aggregate amount of any
distributions to all holders of Common Stock made exclusively in cash
within the 12 months preceding the expiration of such tender or exchange
offer and in respect of which no adjustment pursuant to paragraph (5) of
this Section 5.6(a) or this paragraph (6) has been made, exceeds 15% of the
product of the Current Market Price per share of Common Stock as of the
last time (the "Expiration Time") tenders could have been made pursuant to
such tender or exchange offer (as it may be amended) times the number of
shares of Common Stock outstanding (including any tendered shares) on the
Expiration Time, then, and in each such case, immediately prior to the
opening of business on the day after the date of the Expiration Time, the
Settlement Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate immediately prior to the close
of business on the date of the Expiration Time by a fraction of which:
(i) the numerator shall be equal to (A) the product of (1) the Current
Market Price per share of Common Stock on the date of the Expiration Time and
(2) the number of shares of Common Stock outstanding (including any tendered
shares) on the Expiration Time less (B) the amount of cash plus the fair market
value (determined as aforesaid) of the aggregate consideration payable to
shareholders based on the
38
transactions described in clauses (I) and (II) above (assuming in the case of
clause (I) the acceptance, up to any maximum specified in the terms of the
tender or exchange offer, of Purchased Shares), and
(ii) the denominator shall be equal to the product of (A) the Current Market
Price per share of Common Stock as of the Expiration Time and (B) the number of
shares of Common Stock outstanding (including any tendered shares) as of the
Expiration Time less the number of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares deemed so accepted, up to any
such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 5.6(b) applies) shall be deemed to
involve:
(a) a distribution of such securities other than Common Stock to
all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of shareholders entitled to receive such distribution"
and the "date fixed for such determination" within the meaning of
paragraph (4) of this Section 5.6(a)); and
(b) a subdivision, split or combination, as the case may be, of
the number of shares of Common Stock outstanding immediately prior to
such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such
subdivision or split becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day upon
which such subdivision, split or combination becomes effective" within
the meaning of paragraph (3) of this Section 5.6(a)).
(8) The "Current Market Price" per share of Common Stock on any day
means the average of the daily Closing Prices for the five consecutive
Trading Days selected by the Company commencing not more than 30 Trading
Days before, and ending not later than, the earlier of the day in question
and the day before the "ex date" with respect to the issuance or
distribution requiring such computation. For purposes of this paragraph,
the term "ex date", when used with respect to any issuance or distribution,
shall mean the first date on which the Common Stock trades regular way on
such exchange or in such market without the right to receive such issuance
or distribution.
(9) All adjustments to the Settlement Rate shall be calculated to the
nearest 1/10,000th of a share of Common Stock (or if there is not a nearest
1/10,000th of a share, to the next lower 1/10,000th of a share). No
adjustment in the Settlement Rate shall be required unless such adjustment
would require an increase or decrease of at least one percent thereof;
provided, however, that any adjustments which by reason of this
subparagraph are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. If an adjustment is made to the
Settlement Rate pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
(10) of this Section 5.6(a), an adjustment shall also be made to the
39
Applicable Market Value solely to determine which of clauses (1), (2) or
(3) of the definition of Settlement Rate in Section 5.1 will apply on the
Purchase Contract Settlement Date. Such adjustment shall be made by
multiplying the Applicable Market Value by a fraction of which the
numerator shall be the Settlement Rate immediately after such adjustment
pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this
Section 5.6(a) and the denominator shall be the Settlement Rate immediately
before such adjustment; provided, however, that if such adjustment to the
Settlement Rate is required to be made pursuant to the occurrence of any of
the events contemplated by paragraph (1), (2), (3), (4), (5), (7) or (10)
of this Section 5.6(a) during the period taken into consideration for
determining the Applicable Market Value, appropriate and customary
adjustments shall be made to the Settlement Rate.
(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section 5.6(a), as it considers to be
advisable in order to avoid or diminish any income tax to any holders of
shares of Common Stock resulting from any dividend or distribution of stock
or issuance of rights, options or warrants to purchase or subscribe for
stock or from any event treated as such for income tax purposes or for any
other reason.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event.
In the event of:
(i) any consolidation or merger of the Company with or into another Person
(other than a merger or consolidation in which the Company is the continuing
corporation and in which the shares of Common Stock outstanding immediately
prior to the merger or consolidation are not exchanged for cash, securities or
other property of the Company or another corporation);
(ii) any sale, transfer, lease or conveyance to another Person of the
property of the Company as an entirety or substantially as an entirety;
(iii) any statutory exchange of securities of the Company with another
Person (other than in connection with a merger or acquisition); or
(iv) any liquidation, dissolution or winding up of the Company other than
as a result of or after the occurrence of a Termination Event (any such event,
a "Reorganization Event"),
the Settlement Rate will be adjusted to provide that each Holder of Securities
will receive on the Purchase Contract Settlement Date with respect to each
Purchase Contract forming a part thereof, the kind and amount of securities,
cash and other property receivable upon such Reorganization Event (without any
interest thereon, and without any right to dividends or distribution thereon
which have a record date that is prior to the Purchase Contract Settlement Date)
by a Holder of the number of shares of Common Stock issuable on account of each
Purchase Contract if the Purchase Contract Settlement Date had occurred
immediately prior to such Reorganization Event, assuming such Holder of Common
Stock is not a Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be (any such Person, a "Constituent Person"),
or an Affiliate of a Constituent Person to the
40
extent such Reorganization Event provides for different treatment of Common
Stock held by Affiliates of the Company and non-affiliates and such Holder
failed to exercise his rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such Reorganization Event
(provided that if the kind or amount of securities, cash and other property
receivable upon such Reorganization Event is not the same for each share of
Common Stock held immediately prior to such Reorganization Event by other than a
Constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("non-electing share"), then for the
purpose of this Section the kind and amount of securities, cash and other
property receivable upon such Reorganization Event by each non-electing share
shall be deemed to be the kind and amount so receivable per share by a plurality
of the non-electing shares).
In the event of such a Reorganization Event, the Person formed by such
consolidation, merger or exchange or the Person which acquires the assets of the
Company or, in the event of a liquidation, dissolution or winding up of the
Company, the Company or a liquidating trust created in connection therewith,
shall execute and deliver to the Purchase Contract Agent an agreement
supplemental hereto providing that the Holders of each Outstanding Security
shall have the rights provided by this Section 5.6(b). Such supplemental
agreement shall provide for adjustments which, for events subsequent to the
effective date of such supplemental agreement, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section. The above
provisions of this Section shall similarly apply to successive Reorganization
Events.
(c) All calculations and determinations pursuant to this Section 5.6
shall be made by the Company or its agent and the Purchaser Contract Agent shall
have no responsibility with respect thereto.
Section 5.7. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(1) forthwith compute the adjusted Settlement Rate in accordance with
Section 5.6 and prepare and transmit to the Purchase Contract 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
(2) within 10 Business Days following the occurrence of an event that
requires an adjustment to the Settlement Rate pursuant to Section 5.6 (or
if the Company is not aware of such occurrence, as soon as practicable
after becoming so aware), provide a written notice to the Holders of the
Securities of the occurrence of such event and a statement in reasonable
detail setting forth the method by which the adjustment to the Settlement
Rate was determined and setting forth the adjusted Settlement Rate.
(b) The Purchase Contract Agent shall not at any time be under any
duty or responsibility to any Holder of Securities to determine whether any
facts exist which may require any adjustment of the Settlement Rate, or with
respect to the nature or extent or calculation of any such adjustment when made,
or with respect to the method employed in making the same. The Purchase
Contract Agent shall not be accountable with respect to the validity or value
(or the kind or amount)
41
of any shares of Common Stock, or of any securities or property, which may at
the time be issued or delivered with respect to any Purchase Contract; and the
Purchase Contract Agent makes no representation with respect thereto. The
Purchase Contract Agent shall not be responsible for any failure of the Company
to issue, transfer or deliver any shares of Common Stock pursuant to a Purchase
Contract or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Article.
Section 5.8. Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive, and the obligations of the Company to pay, Contract
Adjustment Payments and the rights and obligations of Holders to purchase shares
of Common Stock, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Purchase Contract Agent or
the Company, if, on or prior to the Purchase Contract Settlement Date, a
Termination Event shall have occurred. Upon and after the occurrence of a
Termination Event, the Securities shall thereafter represent the right to
receive the Senior Notes forming a part of such Securities in the case of
Corporate PIES, or Treasury Securities in the case of Treasury PIES, in
accordance with the provisions of Section 5.4 of the Pledge Agreement. Upon the
occurrence of a Termination Event, the Company shall promptly but in no event
later than two Business Days thereafter give written notice to the Purchase
Contract Agent, the Collateral Agent and the Holders, at their addresses as they
appear in the Register.
Section 5.9. Early Settlement.
(a) Subject to and upon compliance with the provisions of this Section
5.9, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early ("Early Settlement") in the case of Corporate
PIES on or prior to the seventh Business Day immediately preceding the Purchase
Contract Settlement Date and in the case of Treasury PIES on or prior to the
second Business Day immediately preceding the Purchase Contract Settlement Date,
in each case, as provided herein. In order to exercise the right to effect
Early Settlement with respect to any Purchase Contracts, the Holder of the
Certificate evidencing Securities shall deliver such Certificate to the Purchase
Contract Agent at the Corporate Trust Office duly endorsed for transfer to the
Company or in blank with the form of Election to Settle Early on the reverse
thereof duly completed and accompanied by payment (payable to the Company in
immediately available funds) in an amount (the "Early Settlement Amount") equal
to:
(1) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement, plus
(2) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date next
preceding any Payment Date to the opening of business on such Payment Date,
an amount equal to the Contract Adjustment Payments payable on such Payment
Date with respect to such Purchase Contracts.
Except as provided in the immediately preceding sentence and subject to the last
paragraph of Section 5.2, no payment shall be made upon Early Settlement of any
Purchase Contract on account of any Contract Adjustment Payments accrued on such
Purchase Contract or on account of any dividends on
42
the Common Stock issued upon such Early Settlement. If the foregoing
requirements are first satisfied with respect to Purchase Contracts underlying
any Securities at or prior to 5:00 p.m. (New York City time) on a Business Day,
such day shall be the "Early Settlement Date" with respect to such Securities
and if such requirements are first satisfied after 5:00 p.m. (New York City
time) on a Business Day or on a day that is not a Business Day, the "Early
Settlement Date" with respect to such Securities shall be the next succeeding
Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Company shall issue, and the Holder shall be entitled to
receive, ? shares of Common Stock on account of each Purchase Contract as to
which Early Settlement is effected (the "Early Settlement Rate"). The Early
Settlement Rate shall be adjusted in the same manner and at the same time as the
Settlement Rate is adjusted.
(c) No later than the third Business Day after the applicable Early
Settlement Date, the Company shall cause:
(1) the shares of Common Stock issuable upon Early Settlement of
Purchase Contracts to be issued and delivered, together with payment in
lieu of any fraction of a share, as provided in Section 5.10; and
(2) the related Senior Notes, in the case of Corporate PIES, or the
related Treasury Securities, in the case of Treasury PIES, to be released
from the Pledge by the Collateral Agent and transferred, in each case, to
the Purchase Contract Agent for delivery to the Holder thereof or its
designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of shares of Common Stock from the Company and the Senior Notes or
Treasury Securities, as the case may be, from the Securities Intermediary, as
applicable, the Purchase Contract Agent shall, in accordance with the
instructions provided by the Holder thereof on the applicable form of Election
to Settle Early on the reverse of the Certificate evidencing the related
Securities:
(1) transfer to the Holder the Senior Notes or Treasury Securities, as
the case may be, forming a part of such Securities, and
(2) deliver to the Holder a certificate or certificates for the full
number of shares of Common Stock issuable upon such Early Settlement,
together with payment in lieu of any fraction of a share, as provided in
Section 5.10.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the
Purchase Contract Agent shall authenticate, countersign and deliver to the
Holder thereof, at the expense of the Company, a Certificate evidencing the
Securities as to which Early Settlement was not effected.
(f) If a Holder of a Corporate PIES effected Early Settlement but
continues to hold the Senior Note originally part of the Corporate PIES, such
Holder may elect to have such Senior Note remarketed. In addition, if a Holder
of a Treasury PIES effected Early Settlement but continues to hold the Senior
Note originally part of the Corporate PIES that was converted into the Treasury
43
PIES, such Holder may elect to have such Senior Note remarketed. A Holder
making such an election must notify the Indenture Trustee prior to 11:00 a.m.
(New York City time) on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date, by use of a notice in substantially the form
of Exhibit G hereto, of the aggregate principal amount of Senior Notes that are
not part of PIES or Treasury PIES, as the case may be, to be remarketed. Any
such notice will be irrevocable and may not be conditioned upon the level at
which the Reset Rate is established in the Remarketing. Concurrently, the
Indenture Trustee shall cause such Senior Notes to be presented to the
Remarketing Agent for Remarketing
Section 5.10. No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Purchase Contract
Settlement Date or upon Early Settlement of any Purchase Contracts. If
Certificates evidencing more than one Purchase Contract shall be surrendered for
settlement at one time by the same Holder, the number of full shares of Common
Stock which shall be delivered upon settlement shall be computed on the basis of
the aggregate number of Purchase Contracts evidenced by the Certificates so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the
Purchase Contract Settlement Date or upon Early Settlement, the Company, through
the Purchase Contract Agent, shall make a cash payment in respect of such
fractional interest in an amount equal to the value of such fractional shares
times the Applicable Market Value. The Company shall provide the Purchase
Contract Agent from time to time with sufficient funds to permit the Purchase
Contract Agent to make all cash payments required by this Section 5.10 in a
timely manner.
Section 5.11. Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable
to the initial issuance and delivery of the shares of Common Stock pursuant to
the Purchase Contracts; provided, however, that the Company shall not be
required to pay any such tax or taxes which may be payable in respect of any
exchange of or substitution for a Certificate evidencing a Security or any
issuance of a share of Common Stock in a name other than that of the registered
Holder of a Certificate surrendered in respect of the Securities evidenced
thereby, other than in the name of the Purchase Contract Agent, as custodian for
such Holder, and the Company shall not be required to issue or deliver such
share certificates or Certificates unless the Person or Persons requesting the
transfer or issuance thereof shall have paid to the Company the amount of such
tax or shall have established to the satisfaction of the Company that such tax
has been paid.
ARTICLE VI
Remedies
Section 6.1. Unconditional Right of Holders to Receive Contract Adjustment
Payments and to Purchase Shares of Common Stock
Each Holder of Corporate PIES or Treasury PIES shall have the right,
which is absolute and unconditional, (1) (subject to the payment by such Holder
of Contract Adjustment
44
Payments pursuant to Section 5.9(a)), to receive each Contract Adjustment
Payment with respect to the Purchase Contract constituting a part of such
Security on the respective Payment Date for such Security and (2) to purchase
shares of Common Stock pursuant to such Purchase Contract and, in each such
case, to institute suit for the enforcement of any such Contract Adjustment
Payment and right to purchase shares of Common Stock, and such rights shall not
be impaired without the consent of such Holder.
Section 6.2. Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any right or
remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company and such Holder shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of such Holder
shall continue as though no such proceeding had been instituted.
Section 6.3. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates in the last
paragraph of Section 3.10, no right or remedy herein conferred upon or reserved
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.4. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or remedy
upon a default shall impair any such right or remedy or constitute a waiver of
any such right. Every right and remedy given by this Article or by law to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
Section 6.5. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of Corporate PIES
or Treasury PIES, by its acceptance of such Corporate PIES or Treasury PIES,
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Agreement, or in
any suit against the Purchase Contract Agent for any action taken, suffered or
omitted by it as Purchase Contract Agent, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
provided that the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Purchase Contract
Agent, to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% of the Outstanding Securities, or to any suit instituted
by any Holder for the enforcement of interest payable on any Senior Notes or
Contract Adjustment Payments on any Purchase Contract on or after the respective
Payment Date therefor in
45
respect of any Security held by such Holder, or for enforcement of the right to
purchase shares of Common Stock under the Purchase Contracts constituting part
of any Security held by such Holder.
Section 6.6. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Purchase Contract Agent or the Holders, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VII
The Purchase Contract Agent
Section 7.1. Certain Duties and Responsibilities.
(a) The Purchase Contract Agent:
(1) undertakes to perform, with respect to the Securities, such duties
and only such duties as are specifically set forth in this Agreement and
the Pledge Agreement, and no implied covenants or obligations shall be read
into this Agreement or the Pledge Agreement against the Purchase Contract
Agent; and
(2) in the absence of bad faith or negligence on its part, may, with
respect to the Securities, conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Purchase Contract Agent and
conforming to the requirements of this Agreement or the Pledge Agreement,
as applicable, but in the case of any certificates or opinions which by any
provision hereof are specifically required to be furnished to the Purchase
Contract Agent, the Purchase Contract Agent shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Agreement or the Pledge Agreement, as applicable, but
shall have no duty to confirm or investigate the accuracy of mathematical
calculations or other facts stated therein.
(b) No provision of this Agreement or the Pledge Agreement shall be
construed to relieve the Purchase Contract Agent from liability for its own
negligent action, its own negligent failure to act, or its own wilful
misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Purchase Contract Agent shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Purchase Contract Agent was negligent in ascertaining the
pertinent facts; and
46
(3) no provision of this Agreement or the Pledge Agreement shall
require the Purchase Contract Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if
adequate indemnity is not provided to it.
(c) Whether or not therein expressly so provided, every provision of
this Agreement and the Pledge Agreement relating to the conduct or affecting the
liability of or affording protection to the Purchase Contract Agent shall be
subject to the provisions of this Section.
(d) The Purchase Contract Agent is authorized to execute and deliver
the Pledge Agreement in its capacity as Purchase Contract Agent.
Section 7.2. Notice of Default.
Within 30 days after the occurrence of any default by the Company
hereunder of which a Responsible Officer of the Purchase Contract Agent has
actual knowledge, the Purchase Contract Agent shall transmit by mail to the
Company and the Holders of Securities, as their names and addresses appear in
the Register, notice of such default hereunder, unless such default shall have
been cured or waived.
Section 7.3. Certain Rights of Purchase Contract Agent.
Subject to the provisions of Section 7.1:
(1) the Purchase Contract Agent may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Agreement or the Pledge
Agreement the Purchase Contract Agent shall deem it desirable that a matter
be proved or established prior to taking, suffering or omitting any action
hereunder, the Purchase Contract Agent (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate of the Company;
(4) the Purchase Contract Agent may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Purchase Contract Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
47
indebtedness or other paper or document, but the Purchase Contract Agent,
in its discretion, may make reasonable further inquiry or investigation
into such facts or matters related to the execution, delivery and
performance of the Purchase Contracts as it may see fit, and, if the
Purchase Contract Agent shall determine to make such further inquiry or
investigation, it shall be given a reasonable opportunity to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(6) the Purchase Contract Agent may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or an Affiliate and the Purchase Contract Agent shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney or an Affiliate appointed with due care by it hereunder.
Section 7.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein shall be taken as the statements of the
Company, and the Purchase Contract Agent assumes no responsibility for their
accuracy. The Purchase Contract Agent makes no representations as to the
validity or sufficiency of either this Agreement or of the Securities, or of the
Pledge Agreement or the Pledge. The Purchase Contract Agent shall not be
accountable for the use or application by the Company of the proceeds in respect
of the Purchase Contracts.
Section 7.5. May Hold Securities.
Any Registrar or any other agent of the Company, or the Purchase
Contract Agent and its Affiliates, in their individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the
Company, the Collateral Agent or any other Person with the same rights it would
have if it were not Registrar or such other agent, or the Purchase Contract
Agent.
Section 7.6. Money Held in Custody.
Money held by the Purchase Contract Agent in custody hereunder need
not be segregated from the other funds except to the extent required by law or
provided herein. The Purchase Contract Agent shall be under no obligation to
invest or pay interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
Section 7.7. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Purchase Contract Agent compensation for all
services rendered by it hereunder and under the Pledge Agreement as the
Company and the Purchase Contact Agent shall form time to time agree;
(2) except as otherwise expressly provided for herein, to reimburse
the Purchase Contract Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Purchase Contract Agent
in accordance with any provision of this Agreement and the Pledge Agreement
(including the reasonable compensation and the
48
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Purchase Contract Agent and any predecessor
Purchase Contract Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of
its duties hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility.
There shall at all times be an Purchase Contract Agent hereunder which
shall be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers, having (or being a member of
a bank holding company having) a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or State authority
and having a corporate trust office in the Borough of Manhattan, The City of New
York, if there be such a corporation in the Borough of Manhattan, The City of
New York, qualified and eligible under this Article and willing to act on
reasonable terms. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Purchase Contract Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Purchase Contract Agent and no
appointment of a successor Purchase Contract Agent pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Purchase Contract Agent in accordance with the applicable requirements of
Section 7.10.
(b) The Purchase Contract Agent may resign at any time by giving
written notice thereof to the Company 60 days prior to the effective date of
such resignation. If the instrument of acceptance by a successor Purchase
Contract Agent required by Section 7.10 shall not have been delivered to the
Purchase Contract Agent within 30 days after the giving of such notice of
resignation, the resigning Purchase Contract Agent may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any time by Act of
the Holders of a majority in number of the Outstanding Securities delivered to
the Purchase Contract Agent and the Company. If the instrument of acceptance by
a successor Purchaser Contract Agent required by Section 7.10 shall not have
been delivered to the Purchase Contract Agent within 30 days after such removal,
the Purchase Contract Agent being removed may petition, at the expense of the
49
Company, any court of competent jurisdiction for the appointment of a successor
Purchase Contract Agent.
(d) If at any time:
(1) the Purchase Contract Agent fails to comply with Section 310(b) of
the TIA, as if the Purchase Contract 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 Security for
at least six months; or
(2) the Purchase Contract Agent shall cease to be eligible under
Section 7.8 and shall fail to resign after written request therefor by the
Company or by any such Holder; or
(3) the Purchase Contract Agent shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Purchase
Contract Agent or of its property shall be appointed or any public officer
shall take charge or control of the Purchase Contract Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Purchase Contract Agent, or (ii) any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition, at the expense of the Company, any court of
competent jurisdiction for the removal of the Purchase Contract Agent and the
appointment of a successor Purchase Contract Agent.
(e) If the Purchase Contract Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Purchase
Contract Agent for any cause, the Company, by a Board Resolution, shall promptly
appoint a successor Purchase Contract Agent and shall comply with the applicable
requirements of Section 7.10. If no successor Purchase Contract Agent shall
have been so appointed by the Company and accepted appointment in the manner
required by Section 7.10, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of itself and all others
similarly situated, petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Purchase Contract
Agent.
(f) The Company shall give, or shall cause such successor Purchase
Contract Agent to give, notice of each resignation and each removal of the
Purchase Contract Agent and each appointment of a successor Purchase Contract
Agent by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders as their names and addresses appear in the applicable
Register. Each notice shall include the name of the successor Purchase Contract
Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Purchase
Contract Agent, every such successor Purchase Contract Agent so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Purchase
Contract Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Purchase Contract Agent shall
50
become effective and such successor Purchase Contract Agent, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
agencies and duties of the retiring Purchase Contract Agent; but, on the request
of the Company or the successor Purchase Contract Agent, such retiring Purchase
Contract Agent shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Purchase Contract Agent all the
rights, powers and trusts of the retiring Purchase Contract Agent and shall duly
assign, transfer and deliver to such successor Purchase Contract Agent all
property and money held by such retiring Purchase Contract Agent hereunder.
(b) Upon request of any such successor Purchase Contract Agent, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Purchase Contract Agent all such
rights, powers and agencies referred to in paragraph (a) of this Section.
(c) No successor Purchase Contract Agent shall accept its appointment
unless at the time of such acceptance such successor Purchase Contract Agent
shall be qualified and eligible under this Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Purchase Contract Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Purchase Contract
Agent shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Purchase Contract Agent, shall be the
successor of the Purchase Contract Agent hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, with the execution
or filing of any paper or any further act on the part of any of the parties
hereto. In case any Certificates shall have been authenticated and executed on
behalf of the Holders, but not delivered, by the Purchase Contract Agent then in
office, any successor by merger, conversion or consolidation to such Purchase
Contract Agent may adopt such authentication and execution and deliver the
Certificates so authenticated and executed with the same effect as if such
successor Purchase Contract Agent had itself authenticated and executed such
Securities.
Section 7.12. Preservation of Information; Communications to Holders.
(a) The Purchase Contract Agent shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders received by the
Purchase Contract Agent in its capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Purchase Contract Agent, and furnish to the Purchase
Contract Agent reasonable proof that each such applicant has owned a Security
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Purchase
Contract Agent shall mail to all the Holders copies of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the
51
Purchase Contract Agent of the materials to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing.
Section 7.13. No Obligations of Purchase Contract Agent.
Except to the extent otherwise expressly provided in this Agreement,
the Purchase Contract Agent assumes no obligations and shall not be subject to
any liability under this Agreement, the Pledge Agreement or any Purchase
Contract in respect of the obligations of the Holder of any Security thereunder.
The Company agrees, and each Holder of a Certificate, by his acceptance thereof,
shall be deemed to have agreed, that the Purchase Contract Agent's execution of
the Certificates on behalf of the Holders shall be solely as agent and attorney-
in-fact for the Holders, and that the Purchase Contract Agent shall have no
obligation to perform such Purchase Contracts on behalf of the Holders, except
to the extent expressly provided in Article Five hereof. Anything contained in
this Agreement to the contrary notwithstanding, in no event shall the Purchase
Contract Agent or its officers, employees or agents be liable under this
Agreement to any third party for indirect, special, punitive, or consequential
loss or damage of any kind whatsoever, including lost profits, whether or not
the likelihood of such loss or damage was known to the Purchase Contract Agent,
incurred without any act or deed that is found to be attributable to gross
negligence or willful misconduct on the part of the Purchase Contract Agent.
Section 7.14. Tax Compliance.
(a) The Company will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Securities or
(ii) the issuance, delivery, holding, transfer, redemption or exercise of rights
under the Securities. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of all
amounts required to be withheld to the appropriate taxing authority or its
designated agent.
(b) The Purchase Contract Agent shall comply in accordance with the
terms hereof with any written direction received from the Company with respect
to the execution or certification of any required documentation and the
application of such requirements to particular payments or Holders or in other
particular circumstances, and may for purposes of this Agreement rely on any
such direction in accordance with the provisions of Section 7.1(a)(2) hereof.
(c) The Purchase Contract Agent shall maintain all appropriate records
documenting compliance with such requirements, and shall make such records
available, on written request, to the Company or its authorized representative
within a reasonable period of time after receipt of such request.
52
ARTICLE VIII
Supplemental Agreements
Section 8.1. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Purchase
Contract Agent, at any time and from time to time, may enter into one or more
agreements supplemental hereto, in form satisfactory to the Company and the
Purchase Contract Agent,
(1) evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company herein and
in the Certificates;
(2) evidence and provide for the acceptance of appointment hereunder
by a successor Purchase Contract Agent;
(3) add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company;
(4) make provision with respect to the rights of Holders pursuant to
the requirements of Section 5.6(b); or
(5) except as provided for in Section 5.6, cure any ambiguity, correct
or supplement any provisions herein which may be inconsistent with any
other provisions herein, or make any other provisions with respect to such
matters or questions arising under this Agreement, provided such action
shall not adversely affect the interests of the Holders.
Section 8.2. Supplemental Agreements With Consent of Holders.
With the consent of the Holders of not less than a majority of the
outstanding Purchase Contracts voting together as one class, by Act of said
Holders delivered to the Company and the Purchase Contract Agent, the Company,
when authorized by a Board Resolution, and the Purchase Contract Agent may enter
into an agreement or agreements supplemental hereto for the purpose of modifying
in any manner the terms of the Purchase Contracts, or the provisions of this
Agreement or the rights of the Holders in respect of the Securities; provided,
however, that, except as contemplated herein, no such supplemental agreement
shall, without the unanimous consent of the Holders of each outstanding Purchase
Contract affected thereby,
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to be Pledged
to secure a Holder's obligations under the Purchase Contract, impair the
right of the Holder of any Purchase Contract to receive interest on the
related Collateral or otherwise adversely affect the Holder's rights in or
to such Collateral or adversely alter the rights in or to such Collateral;
(3) reduce Contract Adjustment Payments or change any place where, or
the coin or currency in which, Contract Adjustment Payments are payable;
53
(4) impair the right to institute suit for the enforcement of any
Purchase Contract;
(5) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the Purchase
Contract Settlement Date or otherwise adversely affect the Holder's rights
under any Purchase Contract; or
(6) reduce the percentage of the outstanding Purchase Contracts the
consent of whose Holders is required for any such supplemental agreement;
provided that if any amendment or proposal referred to above would adversely
affect only the Corporate PIES or the Treasury PIES, 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 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; and provided, further, that the unanimous consent
of the Holders of each outstanding Purchase Contract of the related Corporate
PIES or Treasury PIES, as the case may be, shall be required to approve any
amendment or proposal specified in clauses (1) through (6) above.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 8.3. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Purchase Contract Agent shall be
entitled to receive, and (subject to Section 7.1) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental agreement is authorized or permitted by this Agreement. The
Purchase Contract Agent may, but shall not be obligated to, enter into any such
supplemental agreement which affects the Purchase Contract Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 8.4. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Certificates theretofore or thereafter authenticated, executed on behalf of
the Holders and delivered hereunder, shall be bound thereby.
Section 8.5. Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Purchase Contract Agent, bear a
notation in form approved by the Purchase Contract Agent as to any matter
provided for in such supplemental agreement. If the Company shall so determine,
new Certificates so modified as to conform, in the opinion of the Purchase
Contract Agent and the Company, to any such supplemental agreement may be
prepared and executed by the Company and
54
authenticated, excuted on behalf of the Holders and delivered by the Purchase
Contract Agent in exchange for Outstanding Certificates.
ARTICLE IX
Merger, Consolidation, Share Exchange, Sale or Conveyance
Section 9.1. Covenant Not to Merge, Consolidate, Enter into a Share Exchange,
Sell or Convey Property Except Under Certain Conditions.
The Company covenants that it will not merge, consolidate or enter
into a share exchange with any other Person or sell, assign, transfer, lease or
convey all or substantially all of its properties and assets to any Person or
group of affiliated Persons in one transaction or a series of related
transactions, unless:
(1) either the Company shall be the continuing corporation, or the
successor (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof
or the District of Columbia and such corporation shall expressly assume all
the obligations of the Company under the Purchase Contracts, this Agreement
and the Pledge Agreement by one or more supplemental agreements in form
reasonably satisfactory to the Purchase Contract Agent and the Collateral
Agent, executed and delivered to the Purchase Contract Agent and the
Collateral Agent by such corporation; and
(2) the Company or such successor corporation, as the case may be,
shall not, immediately after such merger, consolidation or share exchange,
or such sale, assignment, transfer, lease or conveyance, be in default in
the performance of any covenant or condition hereunder, under any of the
Securities or under the Pledge Agreement.
Section 9.2. Rights and Duties of Successor Corporation.
In case of any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance and upon any such assumption by a
successor corporation in accordance with Section 9.1, such successor corporation
shall succeed to and be substituted for the Company with the same effect as if
it had been named herein as the Company. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the name of
Dominion Resources, Inc., any or all of the Certificates evidencing Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Purchase Contract Agent; and, upon the order of such
successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Purchase Contract
Agent shall authenticate and execute on behalf of the Holders and deliver any
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Purchase Contract Agent for authentication and
execution, and any Certificate evidencing Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Purchase
Contract Agent for that purpose. All the Certificates issued shall in all
respects have the same legal rank and benefit under this Agreement as the
Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Certificates had been issued at the date of
the execution hereof.
55
In case of any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance such change in phraseology and form
(but not in substance) may be made in the Certificates evidencing Securities
thereafter to be issued as may be appropriate.
Section 9.3. Officers' Certificate and Opinion of Counsel Given to Purchase
Contract Agent.
The Purchase Contract Agent, subject to Sections 7.1 and 7.3, shall
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, share exchange, sale, assignment,
transfer, lease or conveyance, and any such assumption, complies with the
provisions of this Article and that all conditions precedent to the consummation
of any such merger, consolidation, share exchange, sale, assignment, transfer,
lease or conveyance have been met.
ARTICLE X
Covenants
Section 10.1. Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders from
time to time of the Securities that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York an office or agency where Certificates may be:
(1) presented or surrendered for acquisition of shares of Common Stock
upon settlement of the Purchase Contracts on the Purchase Contract
Settlement Date or Early Settlement and for transfer of Collateral upon
occurrence of a Termination Event;
(2) surrendered for registration of transfer or exchange, for a
Collateral Substitution or re-establishment of a Corporate PIES; and
and where notices and demands to or upon the Company in respect of the
Securities and this Agreement may be served. The Company will give prompt
written notice to the Purchase Contract Agent of the location, and any change in
the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Purchase Contract Agent with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Company hereby appoints the Purchase Contract Agent as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where Certificates may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will
give
56
prompt written notice to the Purchase Contract Agent of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby designates as the place of payment for the
Securities the Corporate Trust Office and appoints the Purchase Contract Agent
at its Corporate Trust Office as paying agent in such city.
Section 10.3. Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase Contract
Settlement Date reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock the full number of shares of Common
Stock issuable against tender of payment in respect of all Purchase Contracts
constituting a part of the Securities evidenced by Outstanding Certificates.
Section 10.4. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be
issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
Section 10.5. Statements of Officers of the Company as to Default.
The Company will deliver to the Purchase Contract Agent, within 120
days after the end of each fiscal year of the Company (which as of the date
hereof is December 31) ending after the date hereof, an Officers' Certificate
(one of the signers of which shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company), stating
whether or not to the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms, provisions and
conditions hereof, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
Section 10.6. ERISA.
Each Holder from time to time of the Corporate PIES which is a Plan
hereby represents that its acquisition of the Corporate PIES and the holding of
the same satisfies the applicable fiduciary requirements of ERISA and that it is
entitled to exemption relief from the prohibited transaction provisions of ERISA
and the Code in accordance with one or more prohibited transaction exemptions or
otherwise will not result in a nonexempt prohibited transaction.
57
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
DOMINION RESOURCES, INC.
By: ________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Purchase Contract Agent
By: ________________________
Name:
Title:
58
EXHIBIT A
FACE OF CORPORATE PIES CERTIFICATE
This certificate is a global certificate within the meaning of the Purchase
Contract Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company, a New York corporation (the "Depositary"), or a
nominee of the Depositary. This certificate is exchangeable for certificates
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Purchase Contract Agreement and no
transfer of this certificate (other than a transfer of this certificate as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this certificate is presented by an authorized representative of the
Depositary for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of the Depositary (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), any transfer, pledge or other use
hereof for value or otherwise by or to any person is wrongful since the
registered owner hereof, Cede & Co., has an interest herein.
NO. _______ CUSIP NO. 00000X000
NUMBER OF CORPORATE PIES ________
DOMINION RESOURCES, INC.
CORPORATE PIES
This Corporate PIES Certificate certifies that Cede & Co. is the
registered Holder of the number of Corporate PIES set forth above. Each
Corporate PIES consists of (i) the rights and obligations of the Holder under
one Purchase Contract with Dominion Resources, Inc., a Virginia corporation (the
"Company"), and (ii) the beneficial ownership by the Holder of one 2000 Series G
8.05% Senior Note due November 15, 2006 (the "Senior Note") of the Company,
having a principal amount of $50, subject to the Pledge of such Senior Note by
such Holder pursuant to the Pledge Agreement. All capitalized terms used herein
which are defined in the Purchase Contract Agreement (as defined on the reverse
hereof) have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Senior Note constituting part of
each Corporate PIES evidenced hereby has been pledged to the Collateral Agent,
for the benefit of the Company, to secure the obligations of the Holder under
the Purchase Contract comprising a portion of such Corporate PIES.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate PIES Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date, at a price equal to $50 in cash (the "Stated Amount"),
a number of shares of Common Stock, equal to the Settlement Rate, unless on or
prior to the Purchase Contract Settlement Date there shall have occurred a
Termination Event or an Early Settlement with respect to the Corporate PIES of
which such Purchase Contract is a part, all as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof. The purchase price
(the "Purchase Price") for the shares of Common
Stock purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Purchase Contract Settlement Date by cash or by
application of payment received in respect of the principal amount with respect
to each Pledged Senior Note pursuant to the Remarketing pledged to secure the
obligations under such Purchase Contract of the Holder of the Corporate PIES of
which such Purchase Contract is a part.
The Company shall pay on February 15, May 15, August 15 and November
15 of each year (each, a "Payment Date"), commencing February 15, 2001 in
respect of each Purchase Contract forming part of a Corporate PIES evidenced
hereby, an amount (the "Contract Adjustment Payments") equal to (a) if a Reset
Transaction has not occurred, 1.45% per annum of the Stated Amount or (b)
following the occurrence of a Reset Transaction, the Adjusted Contract
Adjustment Payment Rate related to such Reset Transaction until any such
succeeding Reset Transaction shall occur, in either case, computed on the basis
of (i) for any full quarterly period, a 360-day year of twelve 30-day months,
(ii) for any period shorter than a full quarterly period, a 30-day month and
(iii) for periods less than a month, the actual number of days elapsed per 30-
day period. Such Contract Adjustment Payments shall be payable to the Person in
whose name this Corporate PIES Certificate (or a Predecessor Corporate PIES
Certificate) is registered at the close of business on the Record Date for such
Payment Date.
Interest is payable quarterly in arrears on each Payment Date. Such
interest payments shall be payable to the Person in whose name this Corporate
PIES Certificate (or a Predecessor Corporate PIES Certificate) is registered at
the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments and interest payments on the Senior Notes
will be payable at the office of the Purchase Contract Agent in The City of New
York or, at the option of the Company, by check mailed to the address of the
Person entitled thereto as such address appears on the Corporate PIES Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Purchase Contract Agent by manual signature, this Corporate PIES Certificate
shall not be entitled to any benefit under the Purchase Contract Agreement or
the Pledge Agreement or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DOMINION RESOURCES, INC.
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts evidenced hereby)
By: The Chase Manhattan Bank,
not individually but solely as
Attorney-in-Fact of such Holder
By: ______________________
Name:
Title:
Dated:
A-3
CERTIFICATE OF AUTHENTICATION
OF PURCHASE CONTRACT AGENT
This is one of the Corporate PIES Certificates referred to in the
within mentioned Purchase Contract Agreement.
By: THE CHASE MANHATTAN BANK,
as Purchase Contract Agent
By: _______________________________
Authorized Officer
A-4
(FORM OF REVERSE OF CORPORATE PIES CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of October 12, 2000 (as may be supplemented from
time to time, the "Purchase Contract Agreement"), between the Company and The
Chase Manhattan Bank, as Purchase Contract Agent (including its successors
hereunder, the "Purchase Contract Agent"), to which Purchase Contract Agreement
and supplemental agreements thereto reference is hereby made for a description
of the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Purchase Contract Agent, the Company, and the
Holders and of the terms upon which the Corporate PIES Certificates are, and are
to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate PIES Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price"), a number of shares of Common Stock of the Company equal to the
Settlement Rate, unless, on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is equal to or
greater than $61.20 (the "Threshold Appreciation Price"), 0.8170 shares of
Common Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price but is greater than $51.00 (the "Reference Price"), the
number of shares of Common Stock per Purchase Contract having a value,
based on the Applicable Market Value, equal to the Stated Amount; and
(3) if the Applicable Market Amount is less than or equal to the
Reference Price, 0.9804 shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement.
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of the
related Corporate PIES to purchase at the Purchase Price, and the Company to
sell, a number of newly issued shares of Common Stock equal to the Early
Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Price
per share of Common Stock on each of the 20 Trading Days ending on the third
Trading Day immediately preceding the Purchase Contract Settlement Date.
The "Closing Price" per share of Common Stock on any date of
determination means
A-5
(1) the closing sale price (or, if no closing price is reported, the
last reported sale price) per share of Common Stock on the New York Stock
Exchange (the "NYSE") on such date;
(2) if the Common Stock is not listed for trading on the NYSE on any
such date, the closing sale price per share as reported in the composite
transactions for the principal United States securities exchange on which
the Common Stock is so listed;
(3) if the Common Stock is not so listed on a United States national or
regional securities exchange, the closing sale price per share as reported
by The Nasdaq Stock Market;
(4) if the Common Stock is not so reported, the last quoted bid price
per share for the Common Stock in the over-the-counter market as reported
by the National Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-point of
the last bid and ask prices per share of the Common Stock on such date from
at least three nationally recognized independent investment banking firms
retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Corporate PIES Certificate shall pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby by effecting a Cash Settlement or an Early Settlement or a Remarketing of
the related Pledged Senior Notes. A Holder of Corporate PIES who does not
effect, on or prior to 11:00 a.m. (New York City time) on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, an effective Cash
Settlement or an Early Settlement, shall pay the Purchase Price for the shares
of Common Stock to be issued under the related Purchase Contract from the
proceeds of the sale of the related Pledged Senior Notes held by the Collateral
Agent. Such sale will be made by the Remarketing Agent pursuant to the terms of
the Remarketing Agreement on the third Business Day immediately preceding the
Purchase Contract Settlement Date. If, as provided in the Purchase Contract
Agreement, upon the occurrence of a Failed Remarketing the Collateral Agent, for
the benefit of the Company, exercises its rights as a secured creditor with
respect to the Pledged Senior Notes related to this Corporate PIES certificate,
any accrued and unpaid interest payments on such Pledged Senior Notes will
become payable by the Company to the holder of this Corporate PIES Certificate
in the manner provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
A-6
Each Purchase Contract evidenced hereby and all obligations and rights
of the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Purchase Contract Agent and to the Holders, at their
addresses as they appear in the Corporate PIES Register. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Debenture forming a part of each Corporate PIES from the Pledge. A
Corporate PIES shall thereafter represent the right to receive the Debenture
forming a part of such Corporate PIES in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement.
Under the terms of the Pledge Agreement, the Purchase Contract Agent
will be entitled to exercise the voting and any other consensual rights
pertaining to the Pledged Senior Notes. Upon receipt of notice of any meeting
at which holders of Senior Notes are entitled to vote or upon the solicitation
of consents, waivers or proxies of holders of Senior Notes, the Purchase
Contract Agent shall, as soon as practicable thereafter, mail to the Corporate
PIES Holders a notice:
(1) containing such information as is contained in the notice or
solicitation;
(2) stating that each Corporate PIES Holder on the record date set by
the Purchase Contract Agent therefor (which, to the extent possible, shall
be the same date as the record date for determining the holders of Senior
Notes entitled to vote) shall be entitled to instruct the Purchase Contract
Agent as to the exercise of the voting rights pertaining to the Senior
Notes constituting a part of such Holder's Corporate PIES; and
(3) stating the manner in which such instructions may be given.
Upon the written request of the Corporate PIES Holders on such record date, the
Purchase Contract Agent shall endeavor insofar as practicable to vote or cause
to be voted, in accordance with the instructions set forth in such requests, the
maximum aggregate principal amount of Senior Notes as to which any particular
voting instructions are received. In the absence of specific instructions from
the Holder of a Corporate PIES, the Purchase Contract Agent shall abstain from
voting the Senior Notes evidenced by such Corporate PIES.
The Corporate PIES Certificates are issuable only in registered form
and only in denominations of a single Corporate PIES and any integral multiple
thereof. The transfer of any Corporate PIES Certificate will be registered and
Corporate PIES Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Corporate PIES Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company and
the Purchase Contract Agent may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. A Holder who
elects to substitute a Treasury Security for Senior Notes, thereby creating
Treasury PIES, shall be responsible for any fees or expenses payable in
connection therewith. Except as provided in the Purchase Contract Agreement,
for so long as the Purchase Contract underlying a Corporate PIES remains in
effect, such Corporate PIES shall not be separable into its constituent parts,
and the rights and obligations of the Holder of such Corporate PIES in respect
of the Debenture and Purchase Contract constituting such Corporate PIES may be
transferred and exchanged only as a Corporate PIES.
A-7
A holder of a Corporate PIES may substitute for the Pledged Senior
Notes securing its obligation under the related Purchase Contract Treasury
Securities in an aggregate principal amount at maturity equal to the aggregate
principal amount of the Pledged Senior Notes in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement. From and after such
Collateral Substitution, the Security for which such Pledged Treasury Securities
secures the Holder's obligation under the Purchase Contract shall be referred to
as a "Treasury PIES." A Holder may make such Collateral Substitution only in
integral multiples of 20 Corporate PIES for 20 Treasury PIES. Such Collateral
Substitution may cause the equivalent aggregate principal amount of this
Certificate to be increased or decreased; provided, however, this Corporate PIES
Certificate shall not represent more than 8,000,000 Corporate PIES. All such
adjustments to the equivalent aggregate principal amount of this Corporate PIES
Certificate shall be duly recorded by placing an appropriate notation on the
Schedule attached hereto.
A Holder of Treasury PIES may recreate Corporate PIES by delivering to
the Securities Intermediary Senior Notes with an aggregate principal amount
equal to the aggregate principal amount at maturity of the Pledged Treasury
Securities in exchange for the release of such Pledged Treasury Securities in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Corporate PIES Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Purchase
Contract Agent in The City of New York or, at the option of the Company, by
check mailed to the address of the Person entitled thereto at such address as it
appears on the Corporate PIES Register.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive, and the obligations of the Company to pay, Contract
Adjustment Payments, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Purchase Contract Agent or
the Company, if, on or prior to the Purchase Contract Settlement Date, a
Termination Event shall have occurred. Upon the occurrence of a Termination
Event, the Company shall promptly but in no event later than two Business Days
thereafter give written notice to the Purchase Contract Agent, the Collateral
Agent and the Holders, at their addresses as they appear in the Corporate PIES
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Senior Notes from the Pledge in accordance with the
provisions of the Pledge Agreement. A Corporate PIES shall thereafter represent
the right to receive the Senior Note forming a part of such Corporate PIES in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities may be settled early ("Early Settlement") as provided in
the Purchase Contract Agreement. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts evidenced by this Corporate
PIES Certificate, the Holder of this Corporate PIES Certificate shall deliver
this Corporate PIES Certificate to the Purchase Contract Agent at the Corporate
Trust Office duly endorsed for transfer to the Company or in blank with the form
of Election to Settle Early set forth below duly
A-8
completed and accompanied by payment in the form of immediately available funds
payable to the order of the Company in an amount (the "Early Settlement Amount")
equal to:
(1) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement, plus
(2) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date for any
Payment Date to the opening of business on such Payment Date, an amount
equal to the Contract Adjustment Payments payable on such Payment Date with
respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Pledged Senior Notes underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a Corporate PIES as to which Early
Settlement is effected equal to the Early Settlement Rate. The Early Settlement
Rate shall initially be equal to shares of Common Stock and shall be adjusted
in the same manner and at the same time as the Settlement Rate is adjusted as
provided in the Purchase Contract Agreement.
Upon registration of transfer of this Corporate PIES Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Purchase Contract Agent
pursuant to the Purchase Contract Agreement), under the terms of the Purchase
Contract Agreement and the Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by this Corporate PIES Certificate. The Company covenants and agrees,
and the Holder, by its acceptance hereof, likewise covenants and agrees, to be
bound by the provisions of this paragraph.
The Holder of this Corporate PIES Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the
related Purchase Contracts forming part of the Corporate PIES evidenced hereby
on its behalf as its attorney-in-fact, expressly withholds any consent to the
assumption (i.e., affirmance) of the Purchase Contracts by the Company or its
trustee in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform its obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, authorizes the
Purchase Contract Agent to enter into and perform the Purchase Contract
Agreement and the Pledge Agreement on its behalf as its attorney-in-fact, and
consents to the Pledge of the Senior Notes underlying this Corporate PIES
Certificate pursuant to the Pledge Agreement. The Holder further covenants and
agrees that, to the extent and in the manner provided in the Purchase Contract
Agreement and the Pledge Agreement, but subject to the terms thereof, payments
in respect of the aggregate principal amount of the Pledged Senior Notes shall
be paid on the Purchase Contract Settlement Date by the Collateral Agent to the
Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
A-9
THE PURCHASE CONTRACTS SHALL FOR ALL PURPOSES BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company, the Purchase Contract Agent and its Affiliates and any
agent of the Company or the Purchase Contract Agent may treat the Person in
whose name this Corporate PIES Certificate is registered as the owner of the
Corporate PIES evidenced hereby for the purpose of receiving payments of
interest payable quarterly on the Senior Notes, receiving payments of Contract
Adjustment Payments, performance of the Purchase Contracts and for all other
purposes whatsoever, whether or not any payments in respect thereof be overdue
and notwithstanding any notice to the contrary, and neither the Company, the
Purchase Contract Agent nor any such agent shall be affected by notice to the
contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
Upon settlement of the Purchase Contracts, the Holder will be entitled to all of
the rights of a holder of shares of Common Stock, including, without limitation,
the right to vote and receive dividends and other payments and to consent and
receive notice as a shareholder in respect of the meetings of shareholders and
for the election of directors of the Company and for all other matters, and all
other rights whatsoever as a shareholder of the Company.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Purchase Contract Agent.
A-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ---------------Custodian---------------
(cust) (minor)
Under Uniform Gifts to Minors Act of _______
_____________________________________
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
Additional abbreviations may also be used though not in the above list.
_________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Corporate PIES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing
attorney to transfer said Corporate PIES Certificates on the books of Dominion
Resources, Inc. with full power of substitution in the premises.
Dated: ___________________ ______________________________________________
Signature
NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within
Corporate PIES Certificates in every particular, without
alteration or enlargement or any change whatsoever.
Signature Guarantee: ___________________________________
A-11
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Corporate PIES evidenced
by this Corporate PIES Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: _______________________ _____________________________________
Signature
Signature Guarantee: _________________
(if assigned to another person)
If shares are to be registered in the name of REGISTERED HOLDER
and delivered to a Person other than the
Holder, please (i) print such Person's name
and address and (ii) provide a guarantee of
your signature:
Please print name and address of Registered
Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification _____________________________________
Number, if any
A-12
ELECTION TO SETTLE EARLY
The undersigned Holder of this Corporate PIES Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Corporate PIES evidenced by this Corporate
PIES Certificate specified below. The undersigned Holder directs that a
certificate for shares of Common Stock deliverable upon such Early Settlement be
registered in the name of, and delivered, together with a check in payment for
any fractional share and any Corporate PIES Certificate representing any
Corporate PIES evidenced hereby as to which Early Settlement of the related
Purchase Contracts is not effected, to the undersigned at the address indicated
below unless a different name and address have been indicated below. Pledged
Senior Notes deliverable upon such Early Settlement will be transferred in
accordance with the transfer instructions set forth below. If shares are to be
registered in the name of a Person other than the undersigned, the undersigned
will pay any transfer tax payable incident thereto.
Dated: ___________________________ ________________________________
Signature
Signature Guarantee: _____________________________________
A-13
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock or Corporate PIES REGISTERED HOLDER
Certificates are to be registered in the name
of and delivered to, and Pledged Senior Notes
are to be transferred to, a Person other than
the Holder, please print such Person's name
and address:
Please print name and address of Registered
Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification _____________________________________
Number, if any
A-14
Transfer Instructions for Pledged Senior Notes Transferable Upon Early
Settlement or a Termination Event:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
A-15
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have
been made:
Number of Corporate PIES
Amount of decrease in Amount of increase in evidenced by this Signature of authorized
Number of Corporate PIES Number of Corporate PIES Global Certificate officer of Trustee or
evidenced by the evidenced by the following such Securities Custodian
Date Global Certificate Global Certificate decrease or increase
----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT B
FACE OF TREASURY PIES CERTIFICATE
This certificate is a global certificate within the meaning of the Purchase
Contract Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company, a New York corporation (the "Depositary"), or a
nominee of the Depositary. This certificate is exchangeable for certificates
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Purchase Contract Agreement and no
transfer of this certificate (other than a transfer of this certificate as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this certificate is presented by an authorized representative of the
Depositary for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of the Depositary (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), any transfer, pledge or other use
hereof for value or otherwise by or to any person is wrongful since the
registered owner hereof, Cede & Co., has an interest herein.
No. _______ CUSIP No. 00000X000
Number of Corporate Pies ________
DOMINION RESOURCES, INC.
Corporate Pies
This Treasury PIES Certificate certifies that Cede & Co. is the
registered Holder of the number of Treasury PIES set forth above. Each Treasury
PIES consists of (i) the rights and obligations of the Holder under one Purchase
Contract with Dominion Resources, Inc., a Virginia corporation (the "Company")
and (ii) a 1/20 undivided beneficial ownership interest of a Treasury Security
having a principal amount at maturity equal to $1,000 and maturing on or prior
to November 15, 2004. All capitalized terms used herein which are defined in
the Purchase Contract Agreement (as defined on the reverse hereof) have the
meaning set forth therein.
Pursuant to the Pledge Agreement, the Treasury Securities constituting
part of each Treasury PIES evidenced hereby have been pledged to the Collateral
Agent, for the benefit of the Company, to secure the obligations of the Holder
under the Purchase Contract comprising a portion of such Treasury PIES.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury PIES Certificate to purchase, and the Company, to sell, on the Purchase
Contract Settlement Date, at a price equal to $50 in cash (the "Stated Amount"),
a number of shares of Common Stock equal to the Settlement Rate, unless on or
prior to the Purchase Contract Settlement Date there shall have occurred a
Termination Event or an Early Settlement with respect to the Treasury PIES of
which such Purchase Contract is a part, all as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof. The purchase price
(the "Purchase Price") for the shares of Common
Stock purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Purchase Contract Settlement Date by application
of the Proceeds from the Treasury Securities at maturity pledged to secure the
obligations under such Purchase Contract of the Treasury PIES of which such
Purchase Contract is a part.
The Company shall pay on each Payment Date in respect of each Purchase
Contract evidenced hereby an amount (the "Contract Adjustment Payments") equal
to (a) if a Reset Transaction has not occurred, 1.45% per annum of the Stated
Amount or (b) following the occurrence of a eset Transaction, the Adjusted
Contract Adjustment Payment Rate related to such Reset Transaction until any
such succeeding Reset Transaction shall occur, in either case, computed on the
basis of (i) for any full quarterly period, a 360-day year of twelve 30-day
months, (ii) for any period shorter than a full quarterly period, a 30-day month
and (iii) for periods less than a month, the actual number of days elapsed per
30-day period). Such Contract Adjustment Payments shall be payable to the
Person in whose name this Treasury PIES Certificate (or a Predecessor Treasury
PIES Certificate) is registered at the close of business on the Record Date for
such Payment Date.
Contract Adjustment Payments will be payable at the office of the
Purchase Contract Agent in The City of New York or, at the option of the
Company, by check mailed to the address of the Person entitled thereto as such
address appears on the Treasury PIES Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Purchase Contract Agent by manual signature, this Treasury PIES Certificate
shall not be entitled to any benefit under the Purchase Contract Agreement or
the Pledge Agreement or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DOMINION RESOURCES, INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations of
such Holder under the Purchase Contracts
By: The Chase Manhattan Bank,
not individually but solely as
Attorney-in-Fact of such Holder
By: _______________________________
Name:
Title:
Dated:
B-3
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Treasury PIES Certificates referred to in the
within mentioned Purchase Contract Agreement.
By: THE CHASE MANHATTAN BANK,
as Purchase Contract Agent
By: _______________________________
Authorized Officer
B-4
(REVERSE OF TREASURY PIES CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of October 12, 2000 (as may be supplemented from
time to time, the "Purchase Contract Agreement") between the Company and The
Chase Manhattan Bank, as Purchase Contract Agent (including its successors
thereunder, herein called the "Purchase Contract Agent"), to which the Purchase
Contract Agreement and supplemental agreements thereto reference is hereby made
for a description of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Purchase Contract Agent, the Company and
the Holders and of the terms upon which the Treasury PIES Certificates are, and
are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury PIES Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price") a number of shares of Common Stock of the Company equal to the
Settlement Rate, unless on or prior to the Purchase Contract Settlement Date:
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is equal to or
greater than $61.20 (the "Threshold Appreciation Price"), 0.8170 shares of
Common Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold Appreciation
Price but is greater than $51.00 (the "Reference Price"), the number of shares
of Common Stock per Purchase Contract having a value based on the Applicable
Market Value, equal to the Stated Amount divided by the Applicable Market
Value; and
(3) if the Applicable Market Amount is less than or equal to $51.00, then
0.9804 shares of Common Stock per Purchase Contract;
in each case subject to adjustment as provided in the Purchase Contract
Agreement.
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either
through Early Settlement or Cash Settlement, shall obligate the Holder of the
related Treasury PIES to purchase at the Purchase Price for cash, and the
Company to sell, a number of newly issued shares of Common Stock equal to the
Early Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the 20 Trading Days ending on the third
Trading Day immediately preceding the Purchase Contract Settlement Date.
B-5
The "Closing Price" per share of Common Stock on any date of
determination means:
(1) the closing sale price (or, if no closing price is reported,
the last reported sale price) per share of Common Stock on the New
York Stock Exchange (the "NYSE") on such date;
(2) if the Common Stock is not listed for trading on the NYSE on
any such date, the closing sale price per share as reported in the
composite transactions for the principal United States securities
exchange on which the Common Stock is so listed;
(3) if the Common Stock is not so listed on a United States
national or regional securities exchange, the closing sale price per
share as reported by The Nasdaq Stock Market;
(4) if the Common Stock is not so reported, the last quoted bid
price per share for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-
point of the last bid and ask prices per share of the Common Stock on
such date from at least three nationally recognized independent
investment banking firms retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Treasury PIES shall pay the Purchase Price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby
either by effecting a Cash Settlement or an Early Settlement of each such
Purchase Contract or by applying the principal amount at maturity of the Pledged
Treasury Securities underlying such Holder's Treasury PIES. A Holder of
Treasury PIES who does not effect, on or prior to 11:00 a.m. (New York City
time) on the Business Day immediately preceding the Purchase Contract Settlement
Date, an effective Cash Settlement or an Early Settlement, shall pay the
Purchase Price for the shares of Common Stock to be issued under the related
Purchase Contract from the proceeds of the Pledged Treasury Securities.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
Each Purchase Contract evidenced hereby and all obligations and rights
of the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Purchase Contract Agent and to the Holders, at their
addresses as they appear in the Treasury PIES Register. Upon and
B-6
after the occurrence of a Termination Event, the Collateral Agent shall release
the Pledged Treasury Securities (as defined in the Pledge Agreement) forming a
part of each Treasury PIES. A Treasury PIES shall thereafter represent the right
to receive the interest in the Treasury Security forming a part of such Treasury
PIES, in accordance with the terms of the Purchase Contract Agreement and the
Pledge Agreement.
The Treasury PIES Certificates are issuable only in registered form
and only in denominations of a single Treasury PIES and any integral multiple
thereof. The transfer of any Treasury PIES Certificate will be registered and
Treasury PIES Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Treasury PIES Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents permitted by
the Purchase Contract Agreement. No service charge shall be required for any
such registration of transfer or exchange, but the Company and the Purchase
Contract Agent may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. A Holder who elects to
substitute Senior Notes for Treasury Securities, thereby recreating Corporate
PIES, shall be responsible for any fees or expenses associated therewith.
Except as provided in the Purchase Contract Agreement, for so long as the
Purchase Contract underlying a Treasury PIES remains in effect, such Treasury
PIES shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Treasury PIES in respect of the Treasury
Security and the Purchase Contract constituting such Treasury PIES may be
transferred and exchanged only as a Treasury PIES.
A Holder of Treasury PIES may recreate Corporate PIES by delivering to
the Collateral Agent Senior Notes with a principal amount equal to the aggregate
principal amount at maturity of the Pledged Treasury Securities in exchange for
the release of such Pledged Treasury Securities in accordance with the terms of
the Purchase Contract Agreement and the Pledge Agreement. From and after such
Collateral Substitution, the Holder's Security shall be referred to as an
"Corporate PIES." Such Collateral Substitution may cause the equivalent
aggregate principal amount of this Certificate to be increased or decreased;
provided, however, this Treasury PIES Certificate shall not represent more than
8,000,000 Treasury PIES. All such adjustments to the equivalent aggregate
principal amount of this Treasury PIES Certificate shall be duly recorded by
placing an appropriate notation on the Schedule attached hereto.
A Holder of Corporate PIES may recreate Treasury PIES by delivering to
the Collateral Agent Treasury Securities in an aggregate principal amount at
maturity equal to the aggregate principal amount of the Pledged Senior Notes in
exchange for the release of such Pledged Senior Notes in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement. Any such
recreation of a Treasury PIES may be effected only in multiples of 20 Corporate
PIES for 20 Treasury PIES.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Treasury PIES Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Purchase
Contract Agent in The City of New York or, at the option of the Company, by
check mailed to the address of the Person entitled thereto at such address as it
appears on the Treasury PIES Register.
B-7
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Purchase Contract Agent or the
Company, if, on or prior to the Purchase Contract Settlement Date, a Termination
Event shall have occurred. Upon the occurrence of a Termination Event, the
Company shall promptly but in no event later than two Business Days thereafter
give written notice to the Purchase Contract Agent, the Collateral Agent and the
Holders, at their addresses as they appear in the Treasury PIES Register. Upon
the occurrence of a Termination Event, the Collateral Agent shall release the
Treasury Securities from the Pledge in accordance with the provisions of the
Pledge Agreement. A Treasury PIES shall thereafter represent the right to
receive the interest in the Treasury Security forming a part of such Treasury
PIES, in accordance with the terms of the Purchase Contract Agreement and the
Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities may be settled early ("Early Settlement") as provided in
the Purchase Contract Agreement. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts evidenced by this Treasury
PIES the Holder of this Treasury PIES Certificate shall deliver this Treasury
PIES Certificate to the Purchase Contract Agent at the Corporate Trust Office
duly endorsed for transfer to the Company or in blank with the form of Election
to Settle Early set forth below duly completed and accompanied by payment in the
form of immediately available funds payable to the order of the Company in an
amount (the "Early Settlement Amount") equal to:
(1) the product of (A) $50 times (B) the number of Purchase Contracts
with respect to which the Holder has elected to effect Early Settlement,
plus
(2) if such delivery is made with respect to any Purchase Contracts during
the period from the close of business on any Record Date for any Payment
Date to the opening of business on such Payment Date, an amount equal to
the Contract Adjustment Payments payable on such Payment Date with respect
to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Pledged Treasury Securities underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a Treasury PIES as to which Early
Settlement is effected equal to ? shares of Common Stock per Purchase Contract
(the "Early Settlement Rate"). The Early Settlement Rate shall be adjusted in
the same manner and at the same time as the Settlement Rate is adjusted as
provided in the Purchase Contract Agreement.
Upon registration of transfer of this Treasury PIES Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Purchase Contract Agent
pursuant to the Purchase Contract Agreement), under the terms of the Purchase
Contract Agreement and the Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by this Treasury PIES Certificate. The Company covenants and agrees,
and the Holder, by its acceptance hereof, likewise covenants and agrees, to be
bound by the provisions of this paragraph.
B-8
The Holder of this Treasury PIES Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the
related Purchase Contracts forming part of the Treasury PIES evidenced hereby on
its behalf as its attorney-in-fact, expressly withholds any consent to the
assumption (i.e., affirmance) of the Purchase Contracts by the Company or its
trustee in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform its obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, authorizes the
Purchase Contract Agent to enter into and perform the Purchase Contract
Agreement and the Pledge Agreement on its behalf as its attorney-in-fact, and
consents to the Pledge of the Treasury Securities underlying this Treasury PIES
Certificate pursuant to the Pledge Agreement. The Holder further covenants and
agrees, that, to the extent and in the manner provided in the Purchase Contract
Agreement and the Pledge Agreement, but subject to the terms thereof, payments
in respect of the aggregate principal amount of the Pledged Treasury Securities
at maturity shall be paid on the Purchase Contract Settlement Date by the
Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Purchase Contract Agent and its Affiliates and any
agent of the Company or the Purchase Contract Agent may treat the Person in
whose name this Treasury PIES Certificate is registered as the owner of the
Treasury PIES evidenced hereby for the purpose of receiving payments of interest
on the Treasury Securities, receiving payments of Contract Adjustment Payments,
performance of the Purchase Contracts and for all other purposes whatsoever,
whether or not any payments in respect thereof be overdue and notwithstanding
any notice to the contrary, and neither the Company, the Purchase Contract Agent
nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
Upon settlement of the Purchase Contracts, the Holder will be entitled to all of
the rights of a holder of shares of Common Stock, including, without limitation,
the right to vote and receive dividends and other payments and to consent and
receive notice as a shareholder in respect of the meetings of shareholders and
for the election of directors of the Company and for all other matters, and all
other rights whatsoever as a shareholder of the Company.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Purchase Contract Agent.
B-9
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ---------------Custodian---------------
(cust) (minor)
Under Uniform Gifts to Minors Act of _______
_____________________________________
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
Additional abbreviations may also be used though not in the above list.
_________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Corporate PIES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing
attorney to transfer said Corporate PIES Certificates on the books of Dominion
Resources, Inc. with full power of substitution in the premises.
Dated: ___________________ ______________________________________________
Signature
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Corporate PIES Certificates
in every particular, without alteration or
enlargement or any change whatsoever.
Signature Guarantee: ___________________________________
B-10
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Treasury PIES evidenced
by this Treasury PIES Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: _______________________ _______________________________
Signature
Signature Guarantee: __________
(if assigned to another person)
If shares are to be registered in the name of REGISTERED HOLDER
and delivered to a Person other than the
Holder, please (i) print such Person's name
and address and (ii) provide a guarantee of
your signature:
Please print name and address of
Registered Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification _____________________________________
Number, if any
B-11
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury PIES Certificate irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Treasury PIES evidenced by this Treasury PIES
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Treasury PIES with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Treasury PIES Certificate representing any Treasury PIES evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Treasury Securities deliverable upon such
Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: ___________________________ ________________________________
Signature
Signature Guarantee: _____________________________________
B-12
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock or Treasury PIES REGISTERED HOLDER
Certificates are to be registered in the name
of and delivered to, and Pledged Treasury
Securities are to be transferred to, a Person
other than the Holder, please print such
Person's name and address:
Please print name and address of
Registered Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification _____________________________________
Number, if any
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement or a Termination Event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
B-13
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
__________________________________________________________________________________________________________________________________
Date Amount of decrease in Amount of increase in Number of Treasury PIES Signature of authorized
Number of Treasury PIES Number of Treasury PIES evidenced by this officer of Trustee or
evidenced by the evidenced by the Global Certificate Securities Custodian
Global Certificate Global Certificate following such
decrease or increase
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__________________________________________________________________________________________________________________________________
B-14
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
The Chase Manhattan Bank, as Purchase Contract Agent
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Markets Fiduciary Services
Re: [________ Corporate PIES] [_________ Treasury PIES] of Dominion
Resources, Inc. (the "Company")
The undersigned Holder hereby notifies you that it has delivered to
Bank One Trust Company, N.A., as Securities Intermediary, for credit to the
Collateral Account, $______ aggregate principal amount of [Senior Notes]
[Treasury Securities] in exchange for the [Pledged Senior Notes] [Pledged
Treasury Securities] held in the Collateral Account, in accordance with the
Pledge Agreement, dated as of October 12, 2000 (the "Pledge Agreement"; unless
otherwise defined herein, terms defined in the Pledge Agreement are used herein
as defined therein), between you, the Company, the Collateral Agent and the
Securities Intermediary. The undersigned Holder has paid all applicable fees
relating to such exchange. The undersigned Holder hereby instructs you to
instruct the Collateral Agent to release to you on behalf of the undersigned
Holder the [Pledged Senior Notes] [Pledged Treasury Securities] related to such
[Corporate PIES] [Treasury PIES].
Date: _______________________ __________________________________
Signature
Signature Guarantee:______________
Please print name and address of Registered Holder:
____________________________________ __________________________________
Name Social Security or other Taxpayer
Address Identification Number, if any
____________________________________
____________________________________
____________________________________
EXHIBIT D
NOTICE FROM PURCHASE CONTRACT AGENT
TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
_______________________
_______________________
Attention:
Telecopy: __________
Re: [__________ Corporate PIES] [________ Treasury PIES] of Dominion Resources,
Inc. (the "Company")
Please refer to the Purchase Contract Agreement, dated as of October
12, 2000 (the "Purchase Contract Agreement"; unless otherwise defined herein,
terms defined in the Purchase Contract Agreement are used herein as defined
therein), among the Company and the undersigned, as Purchase Contract Agent and
as attorney-in-fact for the holders of Corporate PIES and Treasury PIES from
time to time.
We hereby notify you that a Termination Event has occurred and that
[the Senior Notes][the Treasury Securities] underlying your ownership interest
in _____ [Corporate PIES][Treasury PIES] have been released and are being held
by us for your account pending receipt of transfer instructions with respect to
such [Senior Notes][Treasury Securities] (the "Released Securities").
Pursuant to Section 3.15 of the Purchase Contract Agreement, we hereby
request written transfer instructions with respect to the Released Securities.
Upon receipt of your instructions and upon transfer to us of your [Corporate
PIES][Treasury PIES] effected through book-entry or by delivery to us of your
[Corporate PIES Certificate][Treasury PIES Certificate], we shall transfer the
Released Securities by book-entry transfer, or other appropriate procedures, in
accordance with your instructions. In the event you fail to effect such
transfer or delivery, the Released Securities and any interest thereon, shall be
held in our name, or a nominee in trust for your benefit, until such time as
such [Corporate PIES][Treasury PIES] are transferred or your [Corporate PIES
Certificate][Treasury PIES Certificate] is surrendered or satisfactory evidence
is provided that your [Corporate PIES Certificate][Treasury PIES Certificate]
has been destroyed, lost or stolen, together with any indemnification that we or
the Company may require.
Date: ______________ By: The Chase Manhattan Bank, as Purchase
Contract Agent
_________________________________
Name:
Title:
EXHIBIT E
NOTICE TO SETTLE BY CASH
The Chase Manhattan Bank, as Purchase Contract Agent
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Markets Fiduciary Services
Re: [________ Corporate PIES] [________ Treasury PIES] of Dominion Resources,
Inc. (the "Company")
The undersigned Holder hereby irrevocably notifies you in accordance
with Section 5.4 of the Purchase Contract Agreement, dated as of October 12,
2000 (the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and you, as Purchase Contract Agent and as Attorney-in-Fact
for the Holders of the Purchase Contracts, that such Holder has elected to pay
to the Securities Intermediary for deposit in the Collateral Account, on or
prior to 11:00 a.m. (New York City time) on the [fifth Business Day][Business
Day] immediately preceding the Purchase Contract Settlement Date (in lawful
money of the United States by certified or cashiers' check or wire transfer, in
immediately available funds), $______ as the Purchase Price for the shares of
Common Stock issuable to such Holder by the Company under the related Purchase
Contract on the Purchase Contract Settlement Date. The undersigned Holder
hereby instructs you to notify promptly the Collateral Agent of the undersigned
Holder's election to make such cash settlement with respect to the Purchase
Contracts related to such Holder's [Corporate PIES] [Treasury PIES] and to
release the related [Senior Notes] [Treasury Securities] to such Holder upon
such Cash Settlement.
Date: _______________________ ____________________________________
Signature
Signature Guarantee:________________
Please print name and address of Registered Holder:
--------------------------------------- ---------------------------------------
Social Security or other Taxpayer
Name Identification Number, if any
Address
---------------------------------------
---------------------------------------
E-2
EXHIBIT F
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT AND INDENTURE TRUSTEE
(Settlement of Purchase Contract through Remarketing)
Bank One Trust Company, N.A.
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
The Chase Manhattan Bank, as Indenture Trustee
000 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Markets Fiduciary Services
Telecopy: : (000) 000-0000/8160
Re: Corporate PIES of Dominion Resources, Inc.
(the "Company")
Please refer to the Purchase Contract Agreement, dated as of October
12, 2000 (the "Purchase Contract Agreement"; unless otherwise defined herein,
terms defined in the Purchase Contract Agreement are used herein as defined
therein), between the Company and the undersigned, as Purchase Contract Agent
and as attorney-in-fact for the holders of PIES from time to time.
In accordance with Section 5.4 of the Purchase Contract Agreement and,
based on instructions and Cash Settlements received from Holders of Corporate
PIES as of 11:00 a.m (New York City time) on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date, we hereby notify you that
$_____ in aggregate principal amount of Senior Notes is to be tendered for
purchase in the Remarketing.
Date: ______________ By: The Chase Manhattan Bank, as Purchase
Contract Agent
________________________________
Name:
Title:
EXHIBIT G
NOTICE FROM HOLDER TO INDENTURE TRUSTEE
(Election to Tender for Purchase Senior Notes in the Remarketing)
The Chase Manhattan Bank, as Indenture Trustee
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Markets Fiduciary Services
Telecopy: (000) 000-0000/8160
Re: $______ in aggregate principal amount of Senior Notes
of Dominion Resources, Inc., a Virginia corporation (the "Company")
The undersigned Holder hereby irrevocably notifies you in accordance
with [Section 5.4(d)(iv)] [Section 5.9(f)] of the Purchase Contract Agreement,
dated as of October 12, 2000 (the "Purchase Contract Agreement"; unless
otherwise defined herein, terms defined in the Purchase Contract Agreement are
used herein as defined therein), between the Company and The Chase Manhattan
Bank, as Purchase Contract Agent, that it is [a Holder of ____ Treasury PIES
that continues to hold the Senior Notes that were originally part of the ____
Corporate PIES before they were converted into Treasury PIES] [a Holder of ____
Corporate PIES that effected Early Settlement but continues to hold the Senior
Notes originally part of the ____ Corporate PIES] [a Holder of ____ Treasury
PIES that effected Early Settlement but continues to hold the Senior Notes
originally part of the ____ Corporate PIES that were converted into the ____
Treasury PIEPS] and it is electing to tender for purchase in the Remarketing
$_____ in aggregate principal amount of Senior Notes.
Date: _______________________ ____________________________________
Signature
Signature
Guarantee:___________________________
Please print name and address of Registered Holder:
____________________________________ ____________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
____________________________________
____________________________________
____________________________________
G-2
