Exhibit 4.2
PROVIDENT FINANCIAL GROUP, INC.
THE PROVIDENT BANK
PFGI CAPITAL CORPORATION
AND
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION
as Forward Purchase Contract Agent
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FORWARD PURCHASE CONTRACT AGREEMENT
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Dated as of June 12, 2002
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. DEFINITIONS..................................................5
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS........................16
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO AGENT........................16
SECTION 1.4. ACTS OF HOLDERS; RECORD DATES...............................17
SECTION 1.5. NOTICES.....................................................18
SECTION 1.6. NOTICE TO HOLDERS; WAIVER...................................19
SECTION 1.7. EFFECT OF HEADINGS AND TABLE OF CONTENTS....................19
SECTION 1.8. SUCCESSORS AND ASSIGNS......................................19
SECTION 1.9. SEPARABILITY CLAUSE.........................................19
SECTION 1.10. BENEFITS OF AGREEMENT.......................................20
SECTION 1.11. GOVERNING LAW...............................................20
SECTION 1.12. LEGAL HOLIDAYS..............................................20
SECTION 1.13. COUNTERPARTS................................................20
SECTION 1.14. INSPECTION OF AGREEMENT.....................................20
SECTION 1.15. APPOINTMENT OF FINANCIAL INSTITUTION AS AGENT
FOR THE CO-ISSUERS..........................................21
SECTION 1.16 NO WAIVER...................................................21
ARTICLE II
CERTIFICATE FORMS
SECTION 2.1. FORMS OF CERTIFICATES GENERALLY.............................21
SECTION 2.2. FORM OF AGENT'S CERTIFICATE OF AUTHENTICATION...............21
ARTICLE III
THE SECURITIES
SECTION 3.1. AMOUNT; FORM AND DENOMINATIONS..............................22
SECTION 3.2. RIGHTS AND OBLIGATIONS EVIDENCED BY THE CERTIFICATES........22
SECTION 3.3. AUTHENTICATION, EXECUTION, DELIVERY AND DATING..............23
SECTION 3.4. TEMPORARY CERTIFICATES......................................24
SECTION 3.5. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.........24
SECTION 3.6. BOOK-ENTRY INTERESTS........................................26
SECTION 3.7. NOTICES TO HOLDERS..........................................26
SECTION 3.8. APPOINTMENT OF SUCCESSOR DEPOSITARY.........................26
SECTION 3.9. DEFINITIVE CERTIFICATES.....................................26
SECTION 3.10. MUTILATED, DESTROYED, LOST AND STOLEN CERTIFICATES..........27
SECTION 3.11. PERSONS DEEMED OWNERS.......................................28
SECTION 3.12. CANCELLATION................................................29
SECTION 3.13. ESTABLISHMENT OF GROWTH PRIDES..............................29
SECTION 3.14. REESTABLISHMENT OF INCOME PRIDES............................31
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SECTION 3.15. TRANSFER OF COLLATERAL UPON OCCURRENCE OF TERMINATION EVENT.33
SECTION 3.16. CUSIP NUMBERS...............................................33
SECTION 3.17. NO CONSENT TO ASSUMPTION....................................34
ARTICLE IV
THE PREFERRED STOCK AND APPLICABLE OWNERSHIP INTEREST OF THT
SECTION 4.1. DIVIDENDS AND OTHER PAYMENTS; RIGHTS TO PAYMENTS PRESERVED;
RATE RESET; NOTICE..........................................34
SECTION 4.2. NOTICE AND VOTING...........................................35
SECTION 4.3. SPECIAL EVENT REDEMPTION....................................36
ARTICLE V
THE FORWARD PURCHASE CONTRACTS
SECTION 5.1. PURCHASE OF SHARES OF COMMON STOCK..........................36
SECTION 5.2. REMARKETING.................................................39
SECTION 5.3. PAYMENT OF PURCHASE PRICE...................................40
SECTION 5.4. ISSUANCE OF SHARES OF COMMON STOCK..........................43
SECTION 5.5. ADJUSTMENT OF SETTLEMENT RATE...............................44
SECTION 5.6. NOTICE OF ADJUSTMENTS AND CERTAIN OTHER EVENTS..............51
SECTION 5.7. TERMINATION EVENT; NOTICE...................................52
SECTION 5.8. EARLY SETTLEMENT............................................52
SECTION 5.9. EARLY SETTLEMENT UPON MERGER................................54
SECTION 5.10. NO FRACTIONAL SHARES........................................54
SECTION 5.11. CHARGES AND TAXES...........................................55
SECTION 5.12. CONTRACT ADJUSTMENT PAYMENTS................................55
SECTION 5.13. DEFERRAL OF CONTRACT ADJUSTMENT PAYMENTS....................60
ARTICLE VI
REMEDIES
SECTION 6.1. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE CONTRACT ADJUSTMENT
OF COMMON STOCK.............................................61
SECTION 6.2. RESTORATION OF RIGHTS AND REMEDIES..........................62
SECTION 6.3. RIGHTS AND REMEDIES CUMULATIVE..............................62
SECTION 6.4. DELAY OR OMISSION NOT WAIVER................................62
SECTION 6.5. UNDERTAKING FOR COSTS.......................................62
SECTION 6.6. WAIVER OF STAY OR EXTENSION LAWS............................63
ARTICLE VII
THE AGENT
SECTION 7.1. CERTAIN DUTIES AND RESPONSIBILITIES.........................63
SECTION 7.2. NOTICE OF DEFAULT...........................................64
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SECTION 7.3. CERTAIN RIGHTS OF AGENT.....................................64
SECTION 7.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES......66
SECTION 7.5. MAY HOLD SECURITIES.........................................66
SECTION 7.6. MONEY HELD IN CUSTODY.......................................66
SECTION 7.7. COMPENSATION AND REIMBURSEMENT..............................66
SECTION 7.8. CORPORATE AGENT REQUIRED; ELIGIBILITY.......................67
SECTION 7.9. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...........67
SECTION 7.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR......................68
SECTION 7.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.69
SECTION 7.12. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS......69
SECTION 7.13. NO OBLIGATIONS OF AGENT.....................................69
SECTION 7.14. TAX COMPLIANCE..............................................70
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
SECTION 8.1. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF HOLDERS..........70
SECTION 8.2. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF HOLDERS.............71
SECTION 8.3. EXECUTION OF SUPPLEMENTAL AGREEMENTS........................72
SECTION 8.4. EFFECT OF SUPPLEMENTAL AGREEMENTS...........................72
SECTION 8.5. REFERENCE TO SUPPLEMENTAL AGREEMENTS........................72
ARTICLE IX
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.1. COVENANT NOT TO CONSOLIDATE, MERGE, CONVEY, TRANSFER OR LEASE
PROPERTY EXCEPT UNDER CERTAIN CONDITIONS....................72
SECTION 9.2. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION..................73
SECTION 9.3. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL GIVEN TO THE
AGENT.......................................................73
ARTICLE X
COVENANTS
SECTION 10.1. PERFORMANCE UNDER FORWARD PURCHASE CONTRACTS................74
SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY.............................74
SECTION 10.3. COMPANY TO RESERVE COMMON STOCK.............................74
SECTION 10.4. COVENANTS AS TO COMMON STOCK................................75
SECTION 10.5. STATEMENTS OF OFFICERS OF THE CO-ISSUERS AS TO DEFAULT......75
SECTION 10.6. ERISA.......................................................75
SECTION 10.7. TAX TREATMENT...............................................75
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EXHIBIT A Form of Income PRIDES Certificate
EXHIBIT B Form of Growth PRIDES Certificate
EXHIBIT C Instruction to Forward Purchase Contract Agent
EXHIBIT D Instruction to Collateral Agent
EXHIBIT E Notice to Settle with Separate Cash
EXHIBIT F Notice from Forward Purchase Contract Agent to Holders
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FORWARD PURCHASE CONTRACT AGREEMENT, dated as of June 12, 2002, by and
among Provident Financial Group, Inc., a corporation duly organized and existing
under the laws of the State of Ohio (the "Company"), The Provident Bank, an Ohio
state-chartered member of the Federal Reserve System (the "Bank"), PFGI Capital
Corporation, a corporation organized under the laws of the State of Maryland
(the "REIT;" the Company together with the REIT or, upon the occurrence of an
Automatic Exchange (as defined herein), the Bank, the "Co-Issuers"), and X.X.
Xxxxxx Trust Company, National Association, a banking corporation organized and
existing under the laws of the United States, not individually but solely in its
capacity as Forward Purchase Contract Agent for the Holders of Securities from
time to time (the "Agent").
RECITALS
WHEREAS, the Company, the REIT and the Bank have duly authorized the
execution and delivery of this Agreement and the Company and the REIT have duly
authorized the Certificates evidencing the Securities; and
WHEREAS, all things necessary to make the Forward Purchase Contracts,
when the Certificates are executed by the REIT and the Bank and authenticated,
executed on behalf of the Holders and delivered by the Agent, as provided in
this Agreement, the valid obligations of Company, the REIT and the Bank, and to
constitute this Agreement a valid agreement of Company, the REIT and the Bank,
in accordance with its terms, have been done;
WITNESSETH:
NOW THEREFORE, for and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually agreed as
follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and nouns
and pronouns of the masculine gender include the feminine and neuter genders;
(b) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States;
(c) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision; and
(d) the following terms have the meanings given to them in this Section
1.1(d).
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"Act" when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Adjusted Exchange Property" has the meaning specified in Section
5.5(b)(1).
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Agent" means the Person named as the "Agent" in the first paragraph of
this instrument until a successor Agent shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Agent" shall mean such
Person.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Exchange Property Market Value" has the meaning specified
in Section 5.5(b)(1).
"Applicable Market Value" has the meaning specified in Section 5.1.
"Applicable Ownership Interest" means, with respect to an Income PRIDES
and the Treasury Securities in the Treasury Portfolio, (A) a 1/40th undivided
beneficial ownership interest in a $1,000 face amount of a principal or interest
strip in a Treasury Security included in such Treasury Portfolio which matures
on or prior to August 15, 2005, and (B) for each scheduled Dividend distribution
date on the Preferred Stock that occurs after the Special Event Redemption Date
and on or before August 17, 2005, a [ ]% undivided beneficial ownership interest
in a $1,000 face amount of a principal or interest strip in a Treasury Security
included in the Treasury Portfolio that matures prior to such Dividend
distribution date.
"Authorized Newspaper" means a daily newspaper, in the English
language, customarily published on each day that is a Business Day in The City
of New York, whether or not published on days that are legal holidays, and of
general circulation in The City of New York. The Authorized Newspaper for the
purposes of the Reset Announcement Date and the notice of a Failed Remarketing,
is currently anticipated to be The Wall Street Journal (NYC edition).
"Automatic Exchange" means the automatic exchange of each share of REIT
Preferred Stock for one newly issued share of Bank Preferred Stock in the event
that: (a) the Bank becomes less than "adequately capitalized" according to
regulations established by the Federal Reserve Board pursuant to the Federal
Deposit Insurance Corporation Investment Act; (b) the Bank is placed into
conservatorship or receivership; (c) the Federal Reserve Board directs such
exchange in writing, in its sole discretion, and, even if the Bank is not less
than "adequately capitalized," the Federal Reserve Board anticipates the Bank
becoming less than "adequately capitalized" in the near term; or (d) the Federal
Reserve Board, in its sole discretion, directs such exchange in writing in the
event that the Bank has a Tier 1 risk-based capital of less than 5.0%.
"Bank" means The Provident Bank, an Ohio state-chartered member bank of
the Federal Reserve System, or its successor.
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"Bank Preferred Stock" means the Series A preferred stock of the Bank,
received for issuance by the Bank upon the occurrence of an Automatic Exchange.
"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.
"Base Exchange Property" has the meaning specified in Section
5.5(b)(1).
"Beneficial Owner" means, with respect to a Book-Entry Interest, a
Person who is the beneficial owner of such Book-Entry Interest, as reflected on
the books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Board of Directors" means the board of directors of one or both of the
Co-Issuers, as the context requires, or a duly authorized committee of that
board.
"Board Resolution" means one or more resolutions of the applicable
Board of Directors, a copy of which has been certified by the Secretary or an
Assistant Secretary of the applicable Co-Issuer 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 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 a Saturday, Sunday or any other
day on which banking institutions in the State of New York are authorized or
obligated by any law or executive order to be closed.
"Cash Merger" has the meaning set forth in Section 5.5(b)(2).
"Cash Settlement" has the meaning set forth in Section 5.3(a)(i).
"Certificate" means an Income PRIDES Certificate or a Growth PRIDES
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 specified in Section 5.1(a).
"Code" means the Internal Revenue Code of 1986, as amended.
7
"Co-Issuer Order" or "Co-Issuer Request" means a written order or
request signed in the name of each Co-Issuer, respectively by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the General Counsel, the Secretary or any
Vice President (or other officer performing similar functions) of each such
Co-Issuer and delivered to the Agent.
"Collateral" has the meaning specified in Section 2.1 of the Pledge
Agreement.
"Collateral Account" has the meaning set forth in Section 1.1 of the
Pledge Agreement.
"Collateral Agent" means X.X. Xxxxxx Trust Company, National
Association, as Collateral Agent under the Pledge Agreement until a successor
Collateral Agent shall have become such pursuant to the applicable provisions of
the Pledge Agreement, and thereafter "Collateral Agent" shall mean the Person
who is then the Collateral Agent thereunder.
"Collateral Substitution" has the meaning specified in Section 3.13
(a).
"Common Stock" means the common stock, no par value, 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 specified in Section 5.5(b)(1).
"Contract Adjustment Payment" means an unsecured quarterly cash payment
in respect of each Forward Purchase Contract payable by the Company to each
Holder of Income PRIDES or Growth PRIDES, as the case may be, on each Payment
Date at the rate of [ ]% of the Stated Amount per annum.
"Corporate Trust Office" means the principal corporate trust office of
the Agent at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at X.X. Xxxxxx Trust
Company, National Association, Chase Financial Tower, Suite 220, 000 Xxxx Xxxxx
Xxxx, Xxxxxxxxx, Xxxx 00000 Attention: Institutional Trust Services.
"Current Market Price" has the meaning specified in Section 5.5(a)(8).
"Depositary" means, initially, DTC until another Clearing Agency
becomes its successor.
"Dividend" means each quarterly non-cumulative payment on the related
Preferred Stock payable by the REIT or the Bank, as the case may be, on each
Payment Date at a rate of [ ]% of the Liquidation Preference of the Preferred
Stock per annum (subject to the resetting of such rate as provided by Section
4.1(d)).
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Early Settlement" has the meaning specified in Section 5.8(a).
8
"Early Settlement Amount" has the meaning specified in Section 5.8(b).
"Early Settlement Date" has the meaning specified in Section 5.8(c).
"Early Settlement Rate" has the meaning specified in Section 5.8(d).
"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 specified in Section 1.4(f).
"Expiration Time" has the meaning specified in Section 5.5(a)(6).
"Failed Remarketing" has the meaning specified in Section 5.2(f).
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Forward Purchase Contract" when used with respect to any Security,
means the contract forming a part of such Security and obligating the Company to
sell, and the Holder of such Security to purchase, Common Stock on the terms and
subject to the conditions set forth in Article V hereof.
"Forward Purchase Contract Agent" has the meaning specified in the
first paragraph of this Agreement.
"Forward Purchase Contract Settlement Date" means August 17, 2005.
"Forward Purchase Contract Settlement Fund" has the meaning specified
in Section 5.4 (a).
"Global Certificate" means a Certificate that evidences all or part of
the Securities and is registered in the name of a Depositary or a nominee
thereof.
"Growth PRIDES" means the collective rights and obligations of a holder
of a Growth PRIDES Certificate in respect of a 1/40th undivided beneficial
interest in a Treasury Security, subject to the Pledge thereof, and the related
Forward Purchase Contract.
"Growth PRIDES Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Growth PRIDES specified
on such certificate.
"Holder" when used with respect to a Security, means the Person in
whose name the Security evidenced by an Income PRIDES Certificate and/or a
Growth PRIDES Certificate is registered in the Security Register.
"Income PRIDES" means the collective rights and obligations of a Holder
of an Income PRIDES Certificate in respect of the applicable shares of Preferred
Stock or an appropriate
9
Applicable Ownership Interest of the Treasury Portfolio, as the case may be, in
each case, subject to the Pledge thereof, and the related Forward Purchase
Contract provided, however, that the appropriate Applicable Ownership Interests
(as specified in clause (B) of the definition of such term) of the Portfolio
Interests shall not be subjec tto the Pledge.
"Income PRIDES Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Income PRIDES specified
on such certificate.
"Investment Company Act Event" means the receipt by the REIT of an
Opinion of Counsel, rendered by a law firm experienced in such matters, which
states that there is more than an insubstantial risk that the REIT is or will be
considered an "investment company" that is required to be registered under the
Investment Company Act, as a result of the occurrence of a change in law or
regulation or a written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency, or regulatory
authority.
"Liquidation Preference" means with respect to the Preferred Stock, $25
per share.
"Nasdaq" has the meaning specified in Section 5.1(a).
"Non-electing share" has the meaning specified in Section 5.5(b)(1).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the General Counsel, the Secretary or any
Vice President (or other officer performing similar functions) of one or both
Co-Issuers, as the context requires, and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to either Co-Issuer or an
Affiliate of either Co-Issuer, and delivered to the Agent.
"Outstanding Securities" with respect to any Income PRIDES or Growth
PRIDES, means, as of the date of determination, all Income PRIDES or Growth
PRIDES evidenced by Certificates theretofore executed by the Co-Issuers and
authenticated, executed on behalf of the Holders and delivered under this
Agreement, except:
(i) if a Termination Event has occurred, (A) Growth PRIDES and
(B) Income PRIDES for which the related Preferred Stock has been
theretofore deposited with the Agent in trust for the Holders of such
Income PRIDES;
(ii) Income PRIDES and Growth PRIDES evidenced by Certificates
theretofore cancelled by the Agent or delivered to the Agent for
cancellation or deemed cancelled pursuant to the provisions of this
Agreement; and
(iii) Income PRIDES and Growth PRIDES evidenced by
Certificates in exchange for or in lieu of which other Certificates
have been executed by the Co-Issuers and authenticated, executed on
behalf of the Holder and delivered pursuant to this Agreement, other
than any such Certificate in respect of which there shall have been
presented to the Agent proof satisfactory to it that such Certificate
is held by a protected
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purchaser in whose hands the Income PRIDES or Growth PRIDES evidenced
by such Certificate are valid obligations of the Co-Issuers;
provided, however, that in determining whether the Holders of the requisite
number of the Income PRIDES or Growth PRIDES have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Income PRIDES or
Growth PRIDES owned by either Co-Issuer or any Affiliate of either Co-Issuer
shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Agent shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Income PRIDES or Growth PRIDES which a Responsible Officer of the Agent actually
knows to be so owned shall be so disregarded. Income PRIDES or Growth PRIDES so
owned which have been pledged in good faith may be regarded as Outstanding
Securities if the pledgee establishes to the satisfaction of the Agent the
pledgee's right so to act with respect to such Income PRIDES or Growth PRIDES
and that the pledgee is not one of the Co-Issuers or any Affiliate of either
Co-Issuer.
"Payment Date" means each February 17, May 17, August 17 and November
17, commencing November 17, 2002.
"Permitted Investments" has the meaning set forth in Section 1.1 of the
Pledge Agreement.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" means (i) any employee benefit plan (as defined in Section 3(3)
of ERISA) subject to Title I of ERISA, (ii) any plan described in Section
4975(e)(1) of the Code subject to Section 4975 of the Code, including individual
retirement accounts or Xxxxx plans, (iii) any entities whose underlying assets
include plan assets by reason of a plan's investment in such entities or
otherwise and (iv) and employee benefit plans which are governmental plans (as
defined in Section 3(32) of ERISA), certain church plans (as defined in Section
3(33) of ERISA) and foreign plans (as described in Section 4(b)(4) of ERISA)
which are not subject to the restrictions or requirements of ERISA or Section
4975 of the Code, but may be subject to Similar Laws.
"Pledge" has the meaning as set forth in Section 2.1 of the Pledge
Agreement.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, by and among the Company, the Collateral Agent, the Custodial Agent, the
Securities Intermediary and the Forward Purchase Contract Agent, on its own
behalf and as attorney-in-fact for the Holders from time to time of the
Securities.
"Predecessor Certificate" means a Predecessor Income PRIDES Certificate
or a Predecessor Growth PRIDES Certificate.
"Predecessor Growth PRIDES Certificate" of any particular Growth PRIDES
Certificate means every previous Growth PRIDES Certificate evidencing all or a
portion of the rights and obligations of the Co-Issuers and the Holder under the
Growth PRIDES evidenced thereby; and,
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for the purposes of this definition, any Growth PRIDES Certificate authenticated
and delivered under Section 3.10 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Growth PRIDES Certificate shall be deemed to evidence
the same rights and obligations of the Co-Issuers and the Holder as the
mutilated, destroyed, lost or stolen Growth PRIDES Certificate.
"Predecessor Income PRIDES Certificate" of any particular Income PRIDES
Certificate means every previous Income PRIDES Certificate evidencing all or a
portion of the rights and obligations of the Co-Issuers and the Holder under the
Income PRIDES evidenced thereby; and, for the purposes of this definition, any
Income PRIDES Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Income PRIDES
Certificate shall be deemed to evidence the same rights and obligations of the
Co-Issuers and the Holder as the mutilated, destroyed, lost or stolen Income
PRIDES Certificate.
"Preferred Stock" means the REIT Preferred Stock or, upon the
occurrence of an Automatic Exchange, the Bank Preferred Stock.
"Proceeds" has the meaning set forth in Section 1.1 of the Pledge
Agreement.
"Purchase Price" has the meaning specified in Section 5.1(a).
"Purchased Shares" has the meaning specified in Section 5.5(a)(6).
"Quotation Agent" means Xxxxxxx Xxxxx Government Securities,
Incorporated or any of its successors or any other primary U.S. government
securities dealer in New York City selected by the Co-Issuers.
"Record Date" means with respect to any distribution payable in respect
of the Preferred Stock, the Forward Purchase Contract or the Applicable
Ownership Interest of the Treasury Portfolio payable on any Payment Date the
first calendar day of the month (whether or not a Business Day) in which such
Payment Date occurs.
"Redemption Amount" means for each share of REIT Preferred Stock (a) in
the case of a Special Event Redemption occurring on or prior to the Forward
Purchase Contract Settlement Date, the product of the Liquidation Preference of
such share of Preferred Stock and a fraction whose numerator is the Treasury
Portfolio Purchase Price and whose denominator is the aggregate Liquidation
Preference of the shares of Preferred Stock included in Income PRIDES on such
Special Event Redemption Date, and (b) in the case of a Special Event Redemption
Date occurring after the Forward Purchase Contract Settlement Date, the
Liquidation Preference of such share of REIT Preferred Stock.
"Redemption Price" means the redemption price per share of Preferred
Stock equal to the Redemption Amount plus any authorized, declared and unpaid
Dividends to the date of redemption.
"Reference Price" has the meaning specified in Section 5.1(a)(2).
"Regulatory Event" means the receipt by the REIT of an opinion of
counsel, rendered by a law firm experienced in such matters, which states that
there is more than an insubstantial risk
12
that the REIT Series A preferred stock will no longer constitute Tier 1 capital
of Provident Bank for purposes of the capital adequacy guidelines or policies of
the Federal Reserve Board, or its successor as Provident Bank's primary federal
banking regulator, as a result of (a) any amendments to, clarification of, or
change in applicable laws or related regulations or official interpretations or
policies, or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations.
"REIT" means PFGI Capital Corporation, a corporation organized under
the laws of the State of Maryland, or its successors.
"REIT Preferred Stock" means Series A Non-Cumulative Preferred Stock of
the REIT with a Liquidation Preference of $25 per share.
"Remarketing" has the meaning specified in Section 5.2(a).
"Remarketing Agent" has the meaning specified in Section 5.2(a).
"Remarketing Agreement" means the Remarketing Agreement, dated as of
the date hereof, by and among the Company, the Bank, the REIT, the Remarketing
Agent and the Agent.
"Remarketing Date" means the fifth Business Day immediately preceding
the Forward Purchase Contract Settlement Date.
"Remarketing Fee" has the meaning specified in Section 5.2(e).
"Remarketing Underwriting Agreement" means the Remarketing Underwriting
Agreement attached as Exhibit A to the Remarketing Agreement.
"Reorganization Event" has the meaning specified in Section 5.5(b)(1).
"Reset Agent" means a nationally recognized investment banking firm
chosen by the Co-Issuers to determine the Reset Dividend Rate.
"Reset Dividend Announcement Date" means, in the case of the Reset
Dividend Rate to be determined on the Remarketing Date, the tenth Business Day
immediately preceding the Forward Purchase Contract Settlement Date.
"Reset Dividend Rate" means the Dividend rate per annum (to be
determined by the Reset Agent) that the REIT Preferred Stock should bear for the
REIT Preferred Stock included in an Income PRIDES to have a market value on the
Remarketing Date of 100.5% of the aggregate Liquidation Preference of the REIT
Preferred Stock.
"Responsible Officer" when used with respect to the Agent, means any
officer of the Agent assigned by the Agent to administer this Agreement.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time, and the rules and
regulations promulgated thereunder.
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"Security" means an Income PRIDES or a Growth PRIDES.
"Security Register" and "Security Registrar" have the respective
meanings set forth in Section 3.5(a).
"Senior Indebtedness" means indebtedness of any kind of the Company
unless the instrument under which such indebtedness is incurred expressly
provides that it is on a parity in right of payment with or subordinate in right
of payment to the Contract Adjustment Payments.
"Settlement Rate" has the meaning specified in Section 5.1.
"Similar Laws" means any federal, state, local, non-US or other laws or
regulations that are substantially similar to the provisions of ERISA or Section
4975 of the Code.
"Special Event Redemption" means, if a Tax Event, Investment Company
Act Event or Regulatory Event shall occur and be continuing, the redemption of
the Preferred Stock, at the option of the REIT, in whole but not in part, on not
less than 30 days, nor more than 60 days', written notice.
"Special Event Redemption Date" means the date (if any) upon which a
Special Event Redemption occurs.
"Stated Amount" means $25 per Forward Purchase Contract.
"Successful Remarketing" has the meaning specified in Section 5.2(e).
"Tax Event" means the receipt by the REIT of an Opinion of Counsel
rendered by a law firm experienced in such matters in form and substance
satisfactory to the REIT, to the effect that there is more than an insubstantial
risk that Dividends paid or to be paid by the REIT with respect to its capital
stock are not or will not be fully deductible by the REIT for United States
federal income tax purposes or that the REIT is or will be subject to additional
taxes, duties, or other governmental charges, in an amount the REIT reasonably
determines to be significant as a result of (a) any amendment to, clarification
of, or change in, the laws, treaties, or related regulations of the United
States or any of its political subdivisions or their taxing authorities
affecting taxation, or (b) any judicial decision, official administrative
pronouncement, published or private ruling, technical advice memorandum, Chief
Counsel Advice, as such term is defined in the Internal Revenue Code, regulatory
procedure, notice, or official announcement, collectively referred to as
Administrative Actions, which amendment, clarification, or change is effective,
or such official pronouncement or decision is announced, on or after the date of
issuance of shares of REIT Series A preferred stock.
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following
events: (i) at any time on or prior to the Forward Purchase Contract Settlement
Date, a judgment, decree or court order shall have been entered granting relief
under the Bankruptcy Code, adjudicating the Company to be insolvent, or
approving as properly filed a petition seeking reorganization or liquidation of
the Company under the Bankruptcy Code or any other similar applicable Federal or
state law, and,
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unless such judgment, decree or order shall have been entered within 60 days
prior to the Forward Purchase Contract Settlement Date, such decree or order
shall have continued undischarged and unstayed for a period of 60 days, or (ii)
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 Forward Purchase Contract Settlement Date, such
judgment, decree or order shall have continued undischarged and unstayed for a
period of 60 days, or (iii) at any time on or prior to the Forward 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 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 creditors, or shall admit in writing its inability to pay its
debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in Section
5.1(a)(1).
"TIA" means the Trust Indenture Act of 1939, as amended, or any
successor statute.
"Trading Day" has the meaning specified in Section 5.1(a).
"Treasury Portfolio" means a portfolio of zero-coupon U.S. Treasury
securities consisting of: (A) principal or interest strips of U.S. Treasury
securities that mature on or prior to August 15, 2005 in an aggregate amount
equal to the Liquidation Preference of the Preferred Stock included in the
Income PRIDES; and (B) with respect to each scheduled Dividend payment date on
the Preferred Stock that occurs after the Special Event Redemption Date and on
or before August 17, 2005, interest or principal strips of U.S. Treasury
securities that mature on or prior to that Dividend payment date in an aggregate
amount equal to the Dividend that would be due on such date on the aggregate
Liquidation Preference of the Preferred Stock included in the Income PRIDES
assuming no Special Event Redemption and no reset pursuant to a Successful
Remarketing.
"Treasury Portfolio Purchase Price" means the lowest aggregate price
quoted by a primary U.S. government securities dealer in New York City to the
Quotation Agent on the third Business Day immediately preceding the Special
Event Redemption Date for the purchase of the applicable Treasury Portfolio for
settlement on the Special Event Redemption Date.
"Treasury Security" means a zero coupon U.S. Treasury security with a
principal amount at maturity equal to $1,000.
"Underwriting Agreement" means the Underwriting Agreement, dated June
6, 2002, by and among the Company, the Bank, the REIT and Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as Representative of the
several Underwriters named in Schedule B thereto.
"Vice President" means any vice president, whether or not designated by
a number or a word or words added before or after the title "vice president."
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Section 1.2. Compliance Certificates and Opinions.
(a) Except as otherwise expressly provided by this Agreement, upon any
application or request by the Co-Issuers to the Agent to take any action under
any provision of this Agreement, the Co-Issuers shall each furnish to the Agent
an Officer's Certificate stating that all conditions precedent, if any, provided
for in this Agreement relating to the proposed action have been complied with
and, if requested by the Agent, an Opinion of Counsel stating that, in the
opinion of such counsel, 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.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that the 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 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 such individual,
such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Agent.
(a) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an officer of a Co-Issuer 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 may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of a Co-Issuer stating that the information with respect to
such factual matters is in the possession of such Co-Issuer, 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.
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(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Agent and, where it is hereby expressly required, to the Co-Issuers. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 7.1) conclusive in favor of the Agent and the
Co-Issuers, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Agent deems
sufficient.
(c) The ownership of Securities shall be proved by the Securities
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Certificate evidencing such
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Agent or the Co-Issuers in reliance thereon, whether or not
notation of such action is made upon such Certificate.
(e) The Co-Issuers may set any date 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 Income PRIDES or Outstanding Growth PRIDES, as the
case may be, on such record date, and no other Holders, shall be entitled to
take the relevant action with respect to the Income PRIDES or the Growth PRIDES,
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
prior to or on 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 Co-Issuers 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 Co-Issuers, at their own expense, shall cause notice of such
record
17
date, the proposed action by Holders and the applicable Expiration Date
to be given to the Agent in writing and to each Holder of Securities in the
manner set forth in Section 1.6.
(f) With respect to any record date set pursuant to this Section, the
Co-Issuers may designate any date as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day; provided, that no
such change shall be effective unless notice of the proposed new Expiration Date
is given to the Agent in writing, and to each Holder of Securities in the manner
set forth in Section 1.6, prior to or on the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the Co-Issuers shall be deemed to have initially designated the
180th day after such record date as the Expiration Date with respect thereto,
subject to their 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.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Agreement to be made upon, given or furnished to, or filed with:
(1) the Agent by any Holder or by the Co-Issuers shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid, to the
Agent at X.X. Xxxxxx Trust Company, National Association, Chase
Financial Tower, Suite 220, 000 Xxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxx 00000,
Attention: Institutional Trust Services, with a copy to JPMorgan Chase
Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Institutional Trust Services, or at any other address previously
furnished in writing by the Agent to the Holders and the Co-Issuers; or
(2) the Company by the Agent or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid, to the
Company at Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention:
General Counsel, or at any other address previously furnished in
writing to the Agent by the Company; or
(3) the Bank by the Agent or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and personally
delivered or mailed, first-class postage prepaid, to the Bank at Xxx
Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention: General Counsel,
or at any other address previously furnished in writing to the Agent by
the Bank; or
(4) the REIT by the Agent or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and personally
delivered or mailed, first-class postage prepaid, to the REIT at Xxx
Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention: General Counsel,
or at any other address previously furnished in writing to the Agent by
the REIT; or
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(5) the Collateral Agent by the Agent, the Co-Issuers or any
Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished or filed
in writing and personally delivered or mailed, first-class postage
prepaid, addressed to the Collateral Agent at X.X. Xxxxxx Trust
Company, National Association, Chase Financial Tower, Suite 220, 000
Xxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxx 00000, Attention: Institutional Trust
Services, with a copy to JPMorgan Chase Bank, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Institutional Trust Services, or at
any other address previously furnished in writing by the Collateral
Agent to the Agent, the Co-Issuers and the Holders.
Section 1.6. Notice to Holders; Waiver.
(a) Where this Agreement provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at its address as it appears in the applicable Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Agreement
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Agent, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
(b) In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Agent shall
constitute a sufficient notification for every purpose hereunder.
Section 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.8. Successors and Assigns.
All covenants and agreements in this Agreement by the Co-Issuers and
the Agent shall bind their respective successors and assigns, whether so
expressed or not.
Section 1.9. Separability Clause.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
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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 SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
Section 1.12. Legal Holidays.
(a) In the case where any Payment Date shall not be a Business Day
(notwithstanding any other provision of this Agreement, the Income PRIDES
Certificates or the Growth PRIDES Certificates), payments or other distributions
shall not be paid on such date, but Contract Adjustment Payments or such other
distributions shall be paid 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 Co-Issuer or to any Holder in respect of such
payment for the period from and after any such Payment Date.
(b) In any case where the Forward Purchase Contract Settlement Date or
any Early Settlement Date shall not be a Business Day (notwithstanding any other
provision of this Agreement, the Income PRIDES Certificates or the Growth PRIDES
Certificates), the Forward Purchase Contracts shall not be performed on such
date and Early Settlement shall not be effected on such date, but the Forward
Purchase Contracts shall be performed or Early Settlement effected, as
applicable, on the next succeeding Business Day with the same force and effect
as if performed on the Forward Purchase Contract Settlement Date or Early
Settlement Date, as applicable, provided that no interest shall accrue or be
payable by the Co-Issuer or to any Holder for the period from and after any such
Forward Purchase Contract Settlement Date or Early Settlement Date, as
applicable.
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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Section 1.15. Appointment of Financial Institution as Agent for the Co-Issuers.
Each of the Co-Issuers may appoint a financial institution (which may
be the Collateral Agent) to act as its agent in performing its obligations and
in accepting and enforcing performance of the obligations of the Agent and the
Holders, under this Agreement and the Forward Purchase Contracts, by giving
notice of such appointment in the manner provided in Section 1.5 hereof. Any
such appointment shall not relieve such Co-Issuer in any way from its
obligations hereunder.
Section 1.16 No Waiver.
No failure on the part of the Co-Issuers, the Agent, the Collateral
Agent, the Securities Intermediary or any of their respective agents to
exercise, and no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by the Co-Issuers, the Collateral Agent,
the Securities Intermediary or any of their respective agents of any right,
power or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies herein are cumulative
and are not exclusive of any remedies provided by law.
ARTICLE II
CERTIFICATE FORMS
Section 2.1. Forms of Certificates Generally.
(a) The Certificates (including the form of Forward Purchase Contract
forming part of the Securities evidenced thereby) shall be in substantially the
form of and containing the legend set forth in Exhibit A hereto (in the case of
Certificates evidencing Income PRIDES) or Exhibit B hereto (in the case of
Certificates evidencing Growth PRIDES), 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 Securities are listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Co-Issuers executing such Certificates, as evidenced by their execution of the
Certificates.
(b) The definitive 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 Co-Issuers executing such Certificates,
consistent with the provisions of this Agreement, as evidenced by their
execution thereof.
Section 2.2. Form of Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the Securities
shall be in substantially the form set forth on the form of the applicable
Certificates.
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ARTICLE III
THE SECURITIES
Section 3.1. Amount; Form and Denominations.
(a) The aggregate number of Income PRIDES evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to 6,000,000 (6,900,000 if the Underwriters' overallotment option
pursuant to the Underwriting Agreement is exercised in full), except for
Certificates authenticated, executed and delivered upon registration of transfer
of, in exchange for, or in lieu of, other Certificates pursuant to Section 3.4,
3.5, 3.9, 3.10, 3.13, 3.14, 5.5(b)(2), 5.8 or 8.5. Growth PRIDES will be issued
only in the manner described in Section 3.13 hereof.
(b) The Certificates shall be issuable only in registered form and only
in denominations of a single Income PRIDES or Growth PRIDES and any integral
multiple thereof.
Section 3.2. Rights and Obligations Evidenced by the Certificates.
(a) Each Income PRIDES Certificate shall evidence the number of Income
PRIDES specified therein, with each such Income PRIDES representing:
(1) the ownership by the Holder thereof of a beneficial
interest in Preferred Stock or the Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, subject to the Pledge of such
Preferred Stock or the Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio,
as the case may be, by such Holder pursuant to the Pledge Agreement;
and
(2) the rights and obligations of the Holder thereof and the
Company under one Forward Purchase Contract.
The Agent as attorney-in-fact for, and on behalf of, the Holder of each
Income PRIDES shall pledge, pursuant to the Pledge Agreement, the Preferred
Stock or the Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be, forming
a part of such Income PRIDES, to the Collateral Agent and grant to the
Collateral Agent a security interest in the right, title and interest of such
Holder in such Preferred Stock or the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, for the benefit of the Company, to secure the
obligation of the Holder under each Forward Purchase Contract to purchase shares
of Common Stock.
(b) Each Growth PRIDES Certificate shall evidence the number of Growth
PRIDES specified therein, with each such Growth PRIDES representing:
(1) the ownership by the Holder thereof of a 1/40th undivided
beneficial interest in a Treasury Security (CUSIP No. 000000XX0)
maturing on August 15, 2005, subject to the Pledge of such Treasury
Security by such Holder pursuant to the Pledge Agreement; and
22
(2) the rights and obligations of the Holder thereof and the
Company under one Forward Purchase Contract.
(c) Prior to the purchase of shares of Common Stock as provided in each
Forward Purchase Contract, such Forward Purchase Contracts shall not entitle the
Holder of an Income PRIDES Certificate or a Growth PRIDES 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 stockholder in respect of the meetings of stockholders or
for the election of directors of the Company or for any other matter, or any
other rights whatsoever as a stockholder of the Company.
Section 3.3. Authentication, Execution, Delivery and Dating.
(a) 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 Co-Issuers may deliver Certificates executed by the
Co-Issuers to the Agent for authentication, execution on behalf of the Holders
and delivery, together with its Co-Issuer Order for authentication of such
Certificates, and the Agent in accordance with such Co-Issuer Order shall
authenticate, execute on behalf of the Holders and deliver such Certificates.
(b) The Certificates shall be executed on behalf of each of the
Co-Issuers by the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer, the General
Counsel, the Secretary or any Vice President (or other officer performing
similar functions) of each respective Co-Issuer and delivered to the Agent. The
signature of any of these officers on the Certificates may be manual or
facsimile.
(c) Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of a Co-Issuer shall bind
such Co-Issuer, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
(d) No Forward Purchase Contract evidenced by a Certificate shall be
valid until such Certificate has been executed on behalf of the Holder by the
manual signature of an authorized officer of the Agent, as such Holder's
attorney-in-fact. Such signature by an authorized officer of the Agent shall be
conclusive evidence that the Holder of such Certificate has entered into the
Forward Purchase Contracts evidenced by such Certificate.
(e) Each Certificate shall be dated the date of its authentication.
(f) No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by an authorized officer of the Agent by manual signature,
and such certificate upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly authenticated and delivered
hereunder.
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Section 3.4. Temporary Certificates.
(a) Pending the preparation of definitive Certificates (in the event
that definitive Certificates are not prepared at the time of the initial
issuance of the Securities), the Co-Issuers shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holders, and
deliver, in lieu of such definitive Certificates, temporary Certificates which
are in substantially the form set forth in Exhibit A or Exhibit B hereto, as the
case may be, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities exchange on which the
Securities are listed, or as may, consistently herewith, be determined by the
officers of the Co-Issuers executing such Certificates, as evidenced by their
execution of the Certificates.
(b) If temporary Certificates are issued, the Co-Issuers shall 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 Co-Issuers and
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Co-Issuers shall execute and deliver to the Agent,
and the Agent shall authenticate, execute on behalf of the Holder, and deliver
in exchange therefor, one or more definitive Certificates of like tenor and
denominations and evidencing a like number of Securities 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 Securities evidenced thereby as definitive
Certificates.
Section 3.5. Registration; Registration of Transfer and Exchange.
(a) The Agent shall keep at the Corporate Trust Office a register (the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Agent shall provide for the registration of Income PRIDES
Certificates and Growth PRIDES Certificates and of transfers of Income PRIDES
Certificates and Growth PRIDES Certificates (the Agent, in such capacity, the
"Security Registrar").
(b) Upon surrender for registration of transfer of any Certificate at
the Corporate Trust Office, the Co-Issuers shall execute and deliver to the
Agent, and the 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 number of Income PRIDES or Growth PRIDES, as
the case may be.
(c) At the option of the Holder, Certificates may be exchanged for
other Certificates, of any authorized denominations and evidencing a like number
of Income PRIDES or Growth PRIDES, 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 Co-Issuers shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf of the
Holder, and deliver the Certificates which the Holder making the exchange is
entitled to receive.
24
(d) All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same number of
Income PRIDES or Growth PRIDES, as the case may be, and be entitled to the same
benefits and subject to the same obligations, under this Agreement as the Income
PRIDES or Growth PRIDES, as the case may be, evidenced by the Certificate
surrendered upon such registration of transfer or exchange.
(e) Every Certificate presented or surrendered for registration of
transfer or exchange shall (if so required by the Agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Co-Issuers and the Agent duly executed, by the Holder thereof or its attorney
duly authorized in writing.
(f) No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Co-Issuers and the Agent may require payment
from the Holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates, other than any exchanges pursuant to Sections 3.9 and
8.5 not involving any transfer.
(g) Notwithstanding the foregoing, the Co-Issuers shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder and deliver any
Certificate in exchange for any other Certificate presented or surrendered for
registration of transfer or exchange on or after the Business Day immediately
preceding the earliest of any Early Settlement Date for such Certificate, the
Forward 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 Agent shall:
(i) if the Forward Purchase Contract Settlement Date or Early
Settlement Date with respect to such other Certificate has occurred,
deliver, or request that the Company deliver, the number of shares of
Common Stock issuable in respect of the Forward Purchase Contracts
forming a part of the Securities evidenced by such Certificate;
(ii) in the case of Income PRIDES, if a Cash Settlement, Early
Settlement or a Termination Event shall have occurred prior to the
Forward Purchase Contract Settlement Date, transfer, or request the
Collateral Agent to transfer, the shares of Preferred Stock evidenced
thereby or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be; or
(iii) in the case of Growth PRIDES, if a Cash Settlement, Early
Settlement or a Termination Event shall have occurred prior to the
Forward Purchase Contract Settlement Date, transfer, or request the
Collateral Agent to transfer, the Treasury Securities evidenced
thereby,
in each case subject to the applicable conditions and in accordance with the
applicable provisions of Article V hereof.
25
Section 3.6. Book-Entry Interests.
(a) The Certificates, on original issuance, will be issued in the form
of one or more fully registered Global Certificates, to be delivered to the
Depositary or its custodian by, or on behalf of, the Co-Issuers. The Co-Issuers
hereby designate DTC as the initial Depositary. Such Global Certificates shall
initially be registered on the books and records of the Co-Issuers in the name
of Cede & Co., the nominee of the Depositary, and no Beneficial Owner will
receive a definitive Certificate representing such Beneficial Owner's interest
in such Global Certificate, except as provided in Section 3.9. The Agent shall
enter into an agreement with the Depositary in customary form if so requested by
the Co-Issuers. Unless and until definitive, fully registered Certificates have
been issued to Beneficial Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.6 shall be in full force
and effect;
(ii) the Co-Issuers shall be entitled to deal with the
Depositary for all purposes of this Agreement (including, without
limitation, making Forward 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;
(iii) 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
(iv) the rights of the Beneficial Owners shall be exercised
only through the Depositary and shall be limited to those established
by law and agreements between such Beneficial Owners and the Depositary
or Depositary 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 Co-Issuers or the Co-Issuers' agent shall
give such notices and communications to the Holders and, with respect to any
Securities registered in the name of the Depositary or the nominee of the
Depositary, the Co-Issuers or the Co-Issuers' agent shall, except as set forth
herein, have no obligations to the Beneficial Owners.
Section 3.8. Appointment of Successor Depositary.
If the Depositary elects to discontinue its services as securities
depositary with respect to the Securities, the Co-Issuers may, in their sole
discretion, appoint a successor Depositary with respect to the Securities.
Section 3.9. Definitive Certificates.
If:
(i) the Depositary elects to discontinue its services as
securities depositary with respect to the Securities and a successor
Depositary is not appointed within 90 days after such discontinuance
pursuant to Section 3.8;
26
(ii) the Co-Issuers elect, after consultation with the Agent,
to terminate the book-entry system through the Depositary with respect
to the Securities; or
(iii) there shall have occurred and be continuing a default by
the Company in respect of its obligations under one or more Forward
Purchase Contracts;
then upon surrender of the Global Certificates representing the Book-Entry
Interests with respect to the Securities held by the Depositary, accompanied by
registration instructions, the Co-Issuers shall cause definitive Certificates to
be delivered to Beneficial Owners in accordance with the instructions of the
Depositary. The Co-Issuers and the Agent shall not be liable for any delay in
delivery of such instructions and may conclusively rely on and shall be
protected in relying on, such instructions. Each definitive Certificate so
delivered shall evidence Securities of the same kind and tenor as the Global
Certificate so surrendered in respect thereof.
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.
(a) If any mutilated Certificate is surrendered to the Agent, the
Co-Issuers shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
a new Certificate at the cost of the Holder, evidencing the same number of
Income PRIDES or Growth PRIDES, as the case may be, and bearing a Certificate
number not contemporaneously outstanding.
(b) If there shall be delivered to the Co-Issuers and the Agent (i)
evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and (ii) such security or indemnity at the cost of the Holder as
may be required by them to hold each of them and any agent of any of them
harmless, then, in the absence of notice to the Co-Issuers or the Agent that
such Certificate has been acquired by a protected purchaser, the Co-Issuers
shall execute and deliver to the Agent, and the Agent shall authenticate,
execute on behalf of the Holder, and deliver to the Holder, in lieu of any such
destroyed, lost or stolen Certificate, a new Certificate, evidencing the same
number of Income PRIDES or Growth PRIDES, as the case may be, and bearing a
Certificate number not contemporaneously outstanding.
(c) Notwithstanding the foregoing, the Co-Issuers shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder, and deliver to the
Holder, a Certificate on or after the Business Day immediately preceding the
earliest of any Early Settlement Date for such lost or mutilated Certificate,
the Forward 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 Agent shall:
(i) if the Forward Purchase Contract Settlement Date or an
Early Settlement Date with respect to such lost, stolen, destroyed or
mutilated Certificate has occurred, deliver, or request that the
Company deliver, the number of shares of Common Stock issuable in
respect of the Forward Purchase Contracts forming a part of the
Securities evidenced by such Certificate, or
(ii) if a Termination Event with respect to such lost or
mutilated Certificate shall have occurred prior to the Forward Purchase
Contract Settlement Date, transfer, or
27
request the Collateral Agent to transfer, the Preferred Stock, the
Treasury Securities, or the Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, evidenced thereby, in each case subject
to the applicable conditions and in accordance with the applicable
provisions of Section 3.15 and Article V hereof.
(d) Upon the issuance of any new Certificate under this Section, the
Co-Issuers and the Agent may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other fees and expenses (including, without limitation,
the fees and expenses of the Agent) connected therewith.
(e) Every new Certificate issued pursuant to this Section in lieu of
any destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Co-Issuers 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.
(f) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.11. Persons Deemed Owners.
(a) Prior to due presentment of a Certificate for registration of
transfer, the Co-Issuers and the Agent, and any agent of the Co-Issuers or the
Agent, may treat the Person in whose name such Certificate is registered as the
owner of the Security evidenced thereby, for the purpose of (subject to any
applicable Record Date) receiving distributions on the Treasury Securities,
Preferred Stock or on the Applicable Ownership Interest (as specified in clause
(B) of the definition of such term) of the Treasury Portfolio, as applicable,
receiving Contract Adjustment Payments, performance of the Forward Purchase
Contracts and for all other purposes whatsoever, whether or not any
distributions on the Treasury Securities, the Preferred Stock, or Treasury
Portfolio, as applicable, or Contract Adjustment Payments payable on the Forward
Purchase Contracts, each constituting a part of the Security evidenced thereby
shall be overdue and notwithstanding any notice to the contrary, and neither the
Co-Issuers nor the Agent, nor any agent of the Co-Issuers or the Agent, shall be
affected by notice to the contrary.
(b) Notwithstanding the foregoing, with respect to any Global
Certificate, nothing contained herein shall prevent the Co-Issuers, the Agent or
any agent of the Co-Issuers or the Agent, from giving effect to any written
certification, proxy or other authorization furnished the Depositary (or its
nominee), as a Holder, with respect to such Global Certificate or impair, as
between such Depositary and the related Beneficial Owner, the operation of
customary practices governing the exercise of rights of the Depositary (or its
nominee) as Holder of such Global Certificate. None of the Co-Issuers, the Agent
nor any agent of the Co-Issuers or the Agent will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Certificate or maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
28
Section 3.12. Cancellation.
(a) All Certificates surrendered for delivery of shares of Common Stock
on or after the Forward Purchase Contract Settlement Date or upon the transfer
of the Preferred Stock or for delivery of the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio or Treasury Securities, as the case may be, after the
occurrence of a Termination Event or pursuant to an Early Settlement, or upon
the registration of a transfer or exchange of a Security, or a Collateral
Substitution or the reestablishment of an Income PRIDES shall, if surrendered to
any Person other than the Agent, be delivered to the Agent and, if not already
cancelled, shall be promptly cancelled by it. The Co-Issuers may at any time
deliver to the Agent for cancellation any Certificates previously authenticated,
executed on behalf of a Holder and delivered hereunder which the Co-Issuers may
have acquired in any manner whatsoever, and all Certificates so delivered shall,
upon a Co-Issuer Order, be promptly cancelled by the Agent. No Certificates
shall be authenticated, executed on behalf of the Holder and delivered in lieu
of or in exchange for any Certificates cancelled as provided in this Section,
except as expressly permitted by this Agreement. All cancelled Certificates held
by the Agent shall be disposed of in accordance with its customary practices.
(b) If the Co-Issuers or any Affiliate of the Co-Issuers shall acquire
any Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Agent
cancelled or for cancellation.
Section 3.13. Establishment of Growth PRIDES.
(a) Subject to the conditions set forth in this Agreement, a Holder may
separate Preferred Stock or Applicable Ownership Interests of the Treasury
Portfolio, as applicable, from the related Forward Purchase Contracts in respect
of such Holder's Income PRIDES by substituting for such Preferred Stock or
Applicable Ownership Interests of the Treasury Portfolio, as applicable,
Treasury Securities in an aggregate principal amount equal to the aggregate
Liquidation Preference of such Preferred Stock or the principal amount of such
Applicable Ownership Interests (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio, as applicable (a "Collateral
Substitution"), at any time from and after the date of this Agreement and,
subject to paragraph (b) of this Section 3.13, prior to or on the seventh
Business Day immediately preceding the Forward Purchase Contract Settlement Date
in the case of the Preferred Stock and on or prior to the second Business Day
immediately preceding the Forward Purchase Contract Settlement Date in the case
of the Applicable Ownership Interests of the Treasury Portfolio. To effect such
substitution, the Holder must:
(i) deposit with the Collateral Agent Treasury Securities
having an aggregate principal amount at maturity equal to the aggregate
Liquidation Preference of the Preferred Stock or the appropriate
Applicable Ownership Interests (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio comprising part of
such Income PRIDES, as the case may be; and
(ii) transfer the related Income PRIDES to the Agent
accompanied by a notice to the Agent, substantially in the form of
Exhibit C hereto, (a) stating that the Holder has transferred the
relevant amount of Treasury Securities to the Collateral Agent, and (b)
29
requesting that the Agent instruct the Collateral Agent to release the
Preferred Stock or the Applicable Ownership Interests of the Treasury
Portfolio, as the case may be, underlying such Income PRIDES, whereupon
the Agent shall promptly provide an instruction to the Collateral
Agent, substantially in the form of Exhibit D hereto.
(b) Upon receipt of the Treasury Securities described in clause (a)(i)
above and the instruction described in clause (a)(ii) above, in accordance with
the terms of the Pledge Agreement, the Collateral Agent will release the
Preferred Stock or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, from the Pledge, free and clear of the Company's
security interest therein, and transfer such Preferred Stock or Applicable
Ownership Interests of the Treasury Portfolio, as the case may be, to the Agent
on behalf of the Holder. Upon receipt thereof, the Agent shall promptly:
(i) cancel the related Income PRIDES;
(ii) transfer the Preferred Stock or the Applicable Ownership
Interests of the Treasury Portfolio, as the case may be, to the Holder;
and
(iii) authenticate, execute on behalf of such Holder and
deliver a Growth PRIDES Certificate executed by the Co-Issuers in
accordance with Section 3.3 evidencing the same number of Forward
Purchase Contracts as were evidenced by the cancelled Income PRIDES.
(c) Holders who elect to separate the Preferred Stock or the Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, from the
related Forward Purchase Contract and to substitute Treasury Securities for such
Preferred Stock or the Applicable Ownership Interests of the Treasury Portfolio,
as the case may be, shall be responsible for any fees or expenses (including,
without limitation, fees and expenses payable to the Collateral Agent for its
services as Collateral Agent) in respect of the substitution, and the Co-Issuers
shall not be responsible for any such fees or expenses.
(d) Holders may make Collateral Substitutions (i) only in integral
multiples of 40 Income PRIDES if Treasury Securities are being substituted for
Preferred Stock, or (ii) if a Special Event Redemption has occurred, Holders may
make Collateral Substitutions at any time prior to or on the second Business Day
immediately preceding the Forward Contract Settlement Date, but only in integral
multiples of [ ] Income PRIDES.
(e) In the event a Holder making a Collateral Substitution pursuant to
this Section 3.13 fails to effect a book-entry transfer of the Income PRIDES or
fails to deliver an Income PRIDES Certificate(s) to the Agent after depositing
Treasury Securities with the Collateral Agent, any distributions on the
Preferred Stock or the Applicable Ownership Interest of the Treasury Portfolio,
as the case may be, constituting a part of such Income PRIDES shall be held in
the name of the Agent or its nominee in trust for the benefit of such Holder,
until the earlier to occur of:
(i) the transfer of the Income PRIDES or the delivery of the
Income PRIDES Certificate, as the case may be, or receipt by the
Co-Issuers and the Agent from such Holder of satisfactory evidence that
such Income PRIDES Certificate has been destroyed,
30
lost or stolen, together with any indemnity that may be required by the
Agent and the Co-Issuers; or
(ii) the expiration of the time period specified in the
abandoned property laws of the relevant State in which the Agent holds
such property.
(f) Except as described in this Section 3.13 or in connection with a
Cash Settlement, for so long as the Forward Purchase Contract underlying an
Income PRIDES remains in effect, such Income PRIDES shall not be separable into
its constituent parts, and the rights and obligations of the Holder in respect
of the Preferred Stock or the Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, and Forward Purchase Contract comprising such
Income PRIDES may be acquired, and may be transferred and exchanged, only as an
Income PRIDES.
Section 3.14. Reestablishment of Income PRIDES.
(a) Subject to the conditions set forth in this Agreement, a Holder of
a Growth PRIDES may create or recreate Income PRIDES at any time (i) on or prior
to the seventh Business Day immediately preceding the Forward Purchase Contract
Settlement Date, if a Special Event Redemption has not occurred, or (ii) prior
to or on the second Business Day immediately preceding the Forward Purchase
Contract Settlement Date, if a Special Event Redemption has occurred and the
Applicable Ownership Interest in the Treasury Portfolio has become a component
of the Income PRIDES, in each case by:
(1) depositing with the Collateral Agent Preferred Stock or the
Applicable Ownership Interest of the Treasury Portfolio, as the case
may be, (i) in the case of the Preferred Stock having an aggregate
Liquidation Preference equal to the aggregate principal amount at
maturity of the Treasury Securities comprising part of the Growth
PRIDES, and (ii) in the case of the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio equal to the aggregate principal amount at maturity of the
Treasury Securities comprising part of the Growth PRIDES; and
(2) transferring the related Growth PRIDES to the Agent
accompanied by a notice to the Agent, substantially in the form of
Exhibit C hereto, (i) stating that the Holder has transferred the
relevant amount of Preferred Stock or the Applicable Ownership Interest
of the Treasury Portfolio, as the case may be, to the Collateral Agent;
and (ii) requesting that the Agent instruct the Collateral Agent to
release the Treasury Securities underlying such Growth PRIDES,
whereupon the Agent shall promptly provide an instruction to such
effect to the Collateral Agent, substantially in the form of Exhibit D
hereto.
(b) Upon receipt of the Preferred Stock or the Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, described in
clause(a)(1) above and the instruction described in clause (a)(2) above, in
accordance with the terms of the Pledge Agreement, the Collateral Agent will
release the Treasury Securities having a corresponding aggregate principal
amount from the Pledge, free and clear of the Company's security interest
therein, and transfer
31
such Treasury Securities to the Agent on behalf of the Holder. Upon receipt
thereof the Agent shall promptly:
(i) cancel the related Growth PRIDES;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver an Income PRIDES Certificate executed by the Co-Issuers in
accordance with Section 3.3 evidencing the same number of Forward
Purchase Contracts as were evidenced by the cancelled Growth PRIDES.
(c) Holders of Growth PRIDES who elect to create or recreate Income
PRIDES shall be responsible for any fees or expenses (including, without
limitation, fees and expenses payable to the Collateral Agent for its services
as Collateral Agent) in respect of the reestablishment, and the Co-Issuers shall
not be responsible for any such fees or expenses.
(d) Holders of Growth PRIDES may only reestablish Income PRIDES in
integral multiples of 40 Growth PRIDES; provided, that if the Treasury Portfolio
has replaced the Preferred Stock as a component of the Income PRIDES as result
of a Special Event Redemption, Holders may convert their Growth PRIDES into
Income PRIDES by substituting the Applicable Ownership Interest of the Treasury
Portfolio for Treasury Securities at any time prior to or on the second Business
Day immediately preceding the Forward Purchase Contract Settlement Date, but
only in multiples of [ ] Growth PRIDES.
(e) In the event a Holder reestablishing Income PRIDES pursuant to this
Section 3.14 fails to effect a book-entry transfer of the Growth PRIDES or fails
to deliver a Growth PRIDES Certificate(s) to the Agent after depositing shares
of Preferred Stock or the Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, with the Collateral Agent, the Treasury
Securities constituting a part of such Growth PRIDES shall be held in the name
of the Agent or its nominee in trust for the benefit of such Holder, until the
earlier to occur of:
(i) the transfer of the Growth PRIDES or the delivery of the
Growth PRIDES Certificate, as the case may be, or receipt by the
Co-Issuers and the Agent from such Holder of satisfactory evidence that
such Growth PRIDES Certificate has been destroyed, lost or stolen,
together with any indemnity that may be required by the Agent and the
Co-Issuers; or
(ii) the expiration of the time period specified in the
abandoned property laws of the relevant State in which the Agent holds
such property.
(f) Except as provided in this Section 3.14 or in connection with a
Cash Settlement, for so long as the Forward Purchase Contract underlying a
Growth PRIDES remains in effect, such Growth PRIDES shall not be separable into
its constituent parts and the rights and obligations of the Holder of such
Growth PRIDES in respect of the applicable interest in the Treasury Security and
the Forward Purchase Contract comprising such Growth PRIDES may be acquired, and
may be transferred and exchanged, only as a Growth PRIDES.
32
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event.
(a) Upon the occurrence of a Termination Event and the transfer to the
Agent of the Preferred Stock, the appropriate Applicable Ownership Interest of
the Treasury Portfolio or the Treasury Securities, as the case may be,
underlying the Income PRIDES and the Growth PRIDES, as the case may be, pursuant
to the terms of the Pledge Agreement, the Agent shall request transfer
instructions with respect to such Preferred Stock or the appropriate Applicable
Ownership Interest of the Treasury Portfolio or Treasury Securities, as the case
may be, from each Holder by written request, substantially in the form of
Exhibit F hereto mailed to such Holder at its address as it appears in the
Security Register.
(b) Upon book-entry transfer of the Income PRIDES or the Growth PRIDES
or delivery of an Income PRIDES Certificate or a Growth PRIDES Certificate to
the Agent with such transfer instructions, the Agent shall transfer the
Preferred Stock, the appropriate Applicable Ownership Interest of the Treasury
Portfolio or Treasury Securities, as the case may be, underlying such Income
PRIDES or Growth PRIDES, as the case may be, to such Holder by book-entry
transfer, or other appropriate procedures, in accordance with such instructions;
provided, however, that, to the extent that a Holder of Income PRIDES or Growth
PRIDES would otherwise be entitled to receive less than $1,000 principal amount
at maturity of the Treasury Portfolio or the Treasury Securities, the Agent
shall dispose of such securities for cash, and transfer the Proceeds to such
Holder in accordance with such Holder's instructions. In the event a Holder of
Income PRIDES or Growth PRIDES fails to effect such transfer or delivery, the
Preferred Stock, the appropriate Applicable Ownership Interest of the Treasury
Portfolio or Treasury Securities, as the case may be, underlying such Income
PRIDES or Growth PRIDES, as the case may be, and any distributions thereon,
shall be held in the name of the Agent or its nominee in trust for the benefit
of such Holder, until the earlier to occur of:
(i) the transfer or surrender of such Income PRIDES Certificate
or Growth PRIDES Certificate or receipt by the Co-Issuers and the Agent
from such Holder of satisfactory evidence that such Income PRIDES
Certificate or Growth PRIDES Certificate has been destroyed, lost or
stolen, together with any indemnity that may be required by the Agent
and the Co-Issuers; or
(ii) the expiration of the time period specified in the
abandoned property laws of the relevant State in which the Agent holds
such property.
Section 3.16. CUSIP Numbers.
The Co-Issuers in issuing the Securities may use CUSIP numbers (if then
generally in use), and, if so, the Agent shall use CUSIP numbers in notices as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Co-Issuers will promptly notify the Agent of any
change in the CUSIP numbers.
33
Section 3.17. 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 Forward 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.
ARTICLE IV
THE PREFERRED STOCK AND APPLICABLE OWNERSHIP INTEREST OF THE TREASURY PORTFOLIO
Section 4.1. Dividends and Other Payments; Rights to Payments Preserved; Rate
Reset; Notice
(a) Any distributions on any Preferred Stock or on the appropriate
Applicable Ownership Interest (as specified in clause (B) of the definition
thereof) of the Treasury Portfolio, as the case may be, which is paid on any
Payment Date shall, subject to receipt thereof by the Agent from the Collateral
Agent as provided by the terms of the Pledge Agreement, be paid to the Person in
whose name the Income PRIDES Certificate (or one or more Predecessor Income
PRIDES Certificates) of which such Preferred Stock or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, forms a part
is registered at the close of business on the Record Date for such Payment Date.
(b) Each Income PRIDES Certificate evidencing Preferred Stock or the
appropriate Applicable Ownership Interest of the Treasury Portfolio delivered
under this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Income PRIDES Certificate shall carry the right to declared
and unpaid Dividends or accrued and unpaid distributions, and to declared
Dividends or accrued distributions, which were carried by the Preferred Stock or
the appropriate Applicable Ownership Interest of the Treasury Portfolio
underlying such other Income PRIDES Certificate.
(c) In the case of any Income PRIDES with respect to which Cash
Settlement of the underlying Forward Purchase Contract is effected on the
Business Day immediately preceding the Forward Purchase Contract Settlement Date
pursuant to prior notice, or with respect to which Early Settlement of the
underlying Forward 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 prior to or on the next succeeding
Payment Date, Dividends on the Preferred Stock or distributions on the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the case
may be, underlying such Income PRIDES 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 distributions shall,
subject to receipt thereof by the Agent, be payable to the Person in whose name
the Income PRIDES Certificate (or one or more Predecessor 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
Income PRIDES with respect to which Cash Settlement or Early Settlement of the
underlying
34
Forward Purchase Contract is properly effected, or with respect to which a
Collateral Substitution has been effected, distributions on the related
Preferred Stock or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, that would otherwise be payable after the Forward
Purchase Contract Settlement Date, Early Settlement Date or the date of the
Collateral Substitution, as the case may be, shall not be payable hereunder to
the Holder of such Income PRIDES; provided, however, that to the extent that
such Holder continues to hold separated Preferred Stock that formerly comprised
a part of such Holder's Income PRIDES, such Holder shall be entitled to receive
any Dividends on such separated Preferred Stock.
(d) The applicable Dividend rate on the Preferred Stock on and after
the Forward Purchase Contract Settlement Date will be reset on the Remarketing
Date to the applicable Reset Dividend Rate (such Reset Dividend Rate to be in
effect on and after Forward Purchase Contract Settlement Date), except in the
event of a Failed Remarketing or with respect to Preferred Stock that is not
successfully remarketed. The Reset Dividend Rate will not apply to the Preferred
Stock outstanding on and after the Forward Purchase Contract Settlement Date
that has not been successfully remarketed and the Dividend rate on such
Preferred Stock will continue to be [ ]% per annum.
(e) Not less than seven calendar days and not more than 15 calendar
days prior to the Reset Dividend Announcement Date, the Co-Issuers will notify
and instruct DTC or its nominee (or any successor Clearing Agency or its
nominee) by first-class mail, postage prepaid, to notify the Beneficial Owners
or Clearing Agency Participants holding Income PRIDES, of such Reset Dividend
Announcement Date and the procedures to be followed by such Holders of Income
PRIDES who intend to settle their obligation under the Forward Purchase Contract
with separate cash on the Forward Purchase Contract Settlement Date.
Section 4.2. Notice and Voting.
(a) Under the terms of the Pledge Agreement, the Agent will be entitled
to exercise the voting and any other consensual rights pertaining to the
Preferred Stock pledged with the Collateral Agent 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 Preferred Stock are entitled to vote or upon
any solicitation of consents, waivers or proxies of holders of Preferred Stock,
the Agent shall, as soon as practicable thereafter, mail, first class, postage
pre-paid, to the Holders of Income PRIDES a notice:
(i) containing such information as is contained in the notice
or solicitation;
(ii) stating that each Holder on the Record Date set by the
Agent therefor (which, to the extent possible, shall be the same date
as the Record Date for determining the holders of Preferred Stock
entitled to vote) shall be entitled to instruct the Agent as to the
exercise of the voting rights pertaining to the Preferred Stock
underlying their Income PRIDES; and
(iii) stating the manner in which such instructions may be
given.
35
(b) Upon the written request of the Holders of Income PRIDES, on the
Record Date referred to in Section 4.2(a)(ii) above, received by the Agent at
least six days prior to such meeting, the 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 number of Preferred Stock as to which
any particular voting instructions are received. In the absence of specific
instructions from the Holder of an Income PRIDES, the Agent shall abstain from
voting the Preferred Stock underlying such Income PRIDES. The REIT agrees that
it will, unless an Automatic Exchange has occurred, and the Bank agrees that it
will, in the event that an Automatic Exchange has occurred, solicit Holders of
Income PRIDES to timely instruct the Agent in order to enable the Agent to vote
such Preferred Stock.
Section 4.3. Special Event Redemption.
(a) Upon the occurrence of a Special Event Redemption prior to August
17, 2005, pursuant to the terms of the Pledge Agreement, the Collateral Agent
will apply, out of the aggregate Redemption Price for the shares of Preferred
Stock that are components of Income PRIDES, an amount equal to the aggregate
Redemption Amount for the Preferred Stock that are components of Income PRIDES,
to purchase on behalf of the Holders of Income PRIDES the Treasury Portfolio and
promptly remit the remaining portion of such Redemption Price to the Agent for
payment to the Holders of such Income PRIDES. The Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the Treasury
Portfolio will be substituted as Collateral for the Pledged Preferred Stock and
will be held by the Collateral Agent in accordance with the terms of the Pledge
Agreement to secure the obligation of each Holder of an Income PRIDES to
purchase the Common Stock of the Company under the Forward Purchase Contract
constituting a part of such Income PRIDES.
(b) Following the occurrence of a Special Event Redemption prior to the
Forward Purchase Contract Settlement Date, the Holders of Income PRIDES and the
Collateral Agent shall have such security interest, rights and obligations with
respect to the Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio as the Holders of Income
PRIDES and the Collateral Agent had in respect of the Preferred Stock, as the
case may be, subject to the Pledge thereof as provided in the Pledge Agreement,
and any reference herein or in the Certificates to the Preferred Stock shall be
deemed to be a reference to such Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio. The
Co-Issuers may cause to be made in any Income PRIDES Certificates thereafter to
be issued such change in phraseology and form (but not in substance) as may be
appropriate to reflect the substitution of the Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio for Preferred Stock as Collateral.
ARTICLE V
THE FORWARD PURCHASE CONTRACTS
Section 5.1. Purchase of Shares of Common Stock.
(a) Each Forward Purchase Contract shall, unless an Early Settlement
has occurred in accordance with Section 5.8 or 5.9 hereof, obligate the Holder
of the related Security to
36
purchase, and the Company to sell, on the Forward Purchase Contract Settlement
Date at a price equal to the Stated Amount (the "Purchase Price"), a number (or
fraction thereof) of newly issued shares of Common Stock equal to the Settlement
Rate unless, prior to or on the Forward Purchase Contract Settlement Date, there
shall have occurred a Termination Event with respect to the Security of which
such Forward Purchase Contract is a part. The "Settlement Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is
greater than or equal to $[ ] (the "Threshold Appreciation Price"), [ ]
shares of Common Stock per Forward Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price but is greater than $[ ] (the "Reference Price"),
the number of shares of Common Stock per Forward Purchase Contract
having a value equal to the Stated Amount divided by the Applicable
Market Value; and
(3) if the Applicable Market Value is less than or equal to the
Reference Price, [ ] shares of Common Stock per Forward Purchase
Contract,
in each case subject to adjustment as provided in Section 5.5 (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 the Forward Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Price
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the fifth Trading Day immediately preceding the Forward Purchase Contract
Settlement Date.
The "Closing Price" of the Common Stock on any date of determination
means:
(1) the closing bid price (or, if no closing price is reported,
the last reported bid price) of the Common Stock on the Nasdaq National
Market System (the "Nasdaq") on such date;
(2) if the Common Stock is not quoted on the Nasdaq on any such
date, the closing sales price 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 last quoted bid price for
the Common Stock in the over-the-counter market as reported by the
National Quotation Bureau or similar organization; or
(4) if such bid price is not available, the market value of the
Common Stock on such date as of 4:00 p.m. (New York City time) as
determined by a nationally recognized independent investment banking
firm retained for this purpose by the Company.
37
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 an Income PRIDES or a Growth PRIDES, by its acceptance
thereof:
(i) irrevocably authorizes the Agent to enter into and perform
the related Forward Purchase Contract on its behalf as its
attorney-in-fact (including, without limitation, the execution of
Certificates on behalf of such Holder);
(ii) agrees to be bound by the terms and provisions of such
Forward Purchase Contract;
(iii) covenants and agrees to perform its obligations under
such Forward Purchase Contract;
(iv) consents to the provisions hereof;
(v) irrevocably authorizes the Agent to enter into and perform
this Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact;
(vi) consents to, and agrees to be bound by, the Pledge of such
Holder's right, title and interest in the Collateral Account, including
the Preferred Stock or the Applicable Ownership Interest (as specified
in clause (A) of the definition of such term) of the Treasury Portfolio
or the Treasury Securities pursuant to the Pledge Agreement; and
(vii) agrees to treat itself as the owner, for United States
federal income tax purposes, of the applicable interest in the
Collateral Account, including the Preferred Stock and the Applicable
Ownership Interest of the Treasury Portfolio or the Treasury
Securities;
provided that upon a Termination Event, the rights of the Holder of such
Security under the Forward Purchase Contract may be enforced without regard to
any other rights or obligations.
(b) Each Holder of an Income PRIDES or a Growth PRIDES, by its
acceptance thereof, further covenants and agrees, that to the extent and in the
manner provided in the Pledge Agreement, but subject to the terms thereof,
payments in respect of the Stated Amount of the Preferred Stock, the Proceeds of
the Treasury Securities or the Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio, as
applicable, on the Forward Purchase Contract Settlement Date, shall be paid by
the Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Forward Purchase Contract and such Holder shall acquire no right,
title or interest in such payments.
(c) 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
38
Agreement, the Forward Purchase Contracts underlying such Certificate and the
Pledge Agreement and the transferor shall be released from the obligations under
this Agreement, the Forward Purchase Contracts underlying the Certificate so
transferred and the Pledge Agreement. Each of the Co-Issuers 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.
(d) The Agent shall have no responsibility whatsoever for calculating
or determining any amounts under this Section or elsewhere in this Agreement,
and shall have no liability whatsoever for any errors with respect to such
calculations or amounts.
Section 5.2. Remarketing.
(a) Unless a Special Event Redemption, a Termination Event or an Early
Settlement with respect to all Outstanding Securities has occurred or unless the
Federal Reserve Board or the Ohio Division of Financial Institutions disapproves
of the Remarketing prior to the 20th calendar day prior to the Remarketing Date,
the Co-Issuers shall engage a nationally recognized investment banking firm as
remarketing agent (the "Remarketing Agent") pursuant to the Remarketing
Agreement (and subject to removal as provided in the Remarketing Agreement) to
sell the Preferred Stock that is included as part of Income PRIDES and with
respect to which Holders have not notified the Agent of their intention to
effect a Cash Settlement as provided in Section 5.3(a)(i) (the "Remarketing") on
the Remarketing Date.
(b) Not less than seven calendar days and not more than 15 calendar
days prior to the Remarketing Date, the Co-Issuers shall notify and instruct DTC
or its nominee (or any successor Clearing Agency or its nominee) by first-class
mail, postage prepaid, to notify the Beneficial Owners or Clearing Agency
Participants holding Income PRIDES, of such Remarketing Date and the procedures
to be followed by such Holders of Income PRIDES who intend to exercise their
right to have their shares of Preferred Stock included in the Remarketing.
(c) Not less than 30 calendar days and not more than 60 calendar days
prior to the Remarketing Date, the Co-Issuers shall notify the Federal Reserve
Board and the Ohio Division of Financial Institutions by first-class mail of the
Remarketing referred to in Section 5.2(a) above.
(d) In order to facilitate the remarketing, the Agent shall notify, by
10:00 a.m. (New York City time) on the Business Day immediately preceding the
Remarketing Date, the Remarketing Agent of the aggregate Liquidation Preference
of the Preferred Stock to be remarketed.
(e) Upon receipt of such notice from the Agent, the Remarketing Agent
will, on the Remarketing Date, use its reasonable efforts to remarket such
Preferred Stock on such date at a price of approximately 100.5% (but not less
than 100%) of the aggregate Liquidation Preference of the Preferred Stock. If
the Remarketing Agent is able to remarket the Preferred Stock to be remarketed
at a price equal to or greater than 100% of the aggregate Liquidation Preference
of the Preferred Stock (a "Successful Remarketing"), the Remarketing Agent will
remit the entire amount of the proceeds from such Successful Remarketing to the
Collateral Agent for application pursuant to the Pledge Agreement; provided,
however, that the Remarketing Agent may deduct as a remarketing fee
("Remarketing Fee") an amount not exceeding 25 basis points
39
(0.25%) of the aggregate Liquidation Preference of the remarketed Preferred
Stock from any amount of such proceeds in excess of the aggregate Liquidation
Preference of the Preferred Stock. The portion of the proceeds which is equal to
the aggregate Liquidation Preference of the remarketed Preferred Stock will
automatically be applied by the Collateral Agent in accordance with the Pledge
Agreement, in full satisfaction of such Income PRIDES Holders' obligations to
pay the Purchase Price for the Common Stock under the related Forward Purchase
Contracts on the Forward Purchase Contract Settlement Date. None of the
Co-Issuers, the Agent, the Collateral Agent or the Income PRIDES Holders whose
shares of Preferred Stock are so remarketed will otherwise be responsible for
the payment of any Remarketing Fee in connection therewith.
(f) If:
(i) the Federal Reserve Board or the Ohio Division of Financial
Institutions disapproves of the Remarketing prior to the 20th calendar
day immediately preceding the Remarketing Date;
(ii) despite using its reasonable efforts, the Remarketing
Agent cannot remarket such Preferred Stock at a price not less than
100% of the sum of the aggregate Liquidation Preference of the
Preferred Stock; or
(iii) the remarketing has not occurred because a condition
precedent to the remarketing has not been satisfied,
the remarketing will be deemed to have failed (a "Failed Remarketing"), then, in
accordance with the terms of the Pledge Agreement, the Collateral Agent for the
benefit of the Company will exercise its rights as a secured party with respect
to such Preferred Stock. The Co-Issuers shall cause a notice of a Failed
Remarketing to be published on the second Business Day immediately following the
Failed Remarketing in an Authorized Newspaper.
(g) Notwithstanding anything to the contrary contained herein, Section
5.2(c) and (f) may not be amended without prior approval from the Federal
Reserve Board.
Section 5.3. Payment of Purchase Price.
(a) (i) Unless a Termination Event or Early Settlement has occurred,
each Holder of Income PRIDES who intends to pay in cash to satisfy such Holder's
obligations under the Forward Purchase Contract on the Forward Purchase Contract
Settlement Date shall notify the 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 a
Forward Purchase Contract. Such notice shall be made prior to or at 5:00 p.m.
(New York City time) on (A) if no Special Event Redemption has occurred, the
seventh Business Day immediately preceding the Forward Purchase Contract
Settlement Date, or (B) if a Special Event Redemption has occurred, the second
Business Day immediately preceding the Forward Purchase Contract Settlement
Date. Prior to 11.00 a.m. (New York City time) on the next succeeding Business
Day, the Agent shall promptly notify the Collateral Agent of the receipt of such
a notice from each Holder intending to make a Cash Settlement.
40
(ii) Each Holder of an Income PRIDES who has so notified the
Agent of its intention to make a Cash Settlement in accordance with
paragraph (a)(i) above shall pay the Purchase Price times the number of
Forward Purchase Contracts being settled to the Collateral Agent for
deposit in the Collateral Account prior to 11:00 a.m. (New York City
time) on the Business Day immediately preceding the Forward 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
Collateral Agent. Any cash received by the Collateral Agent shall be
invested promptly by the Collateral Agent, pursuant to the written
direction of the Company which may be in the form of a standing order,
in Permitted Investments and paid to the Company on the Forward
Purchase Contract Settlement Date in settlement of the Forward Purchase
Contract in accordance with the terms of this Agreement and the Pledge
Agreement. Any funds received by the Collateral Agent in respect of the
investment earnings from such Permitted Investments in excess of the
Purchase Price for the shares of Common Stock to be purchased by such
Holder shall be distributed to the Agent when received for payment to
the Holder.
(iii) Unless a Special Event Redemption has occurred, if a
Holder of an Income PRIDES notifies the Agent of its intention to make
a Cash Settlement in accordance with paragraph (a)(i) above, but fails
to make such payment as required by paragraph (a)(ii) above, such
failure shall constitute an event of default and the Holder shall be
deemed to have consented to the disposition of the pledged Preferred
Stock as described in the Pledge Agreement. In addition, unless a
Special Event Redemption has occurred, if a Holder of an Income PRIDES
fails to notify the Agent of its intention to make a Cash Settlement in
accordance with paragraph (a)(i) above, such Holder shall be deemed to
have consented to the disposition of the pledged Preferred Stock
pursuant to the Remarketing as described in Section 5.2 hereof.
(iv) Unless a Termination Event or an Early Settlement has
occurred or unless a Holder has notified the Agent of its intention to
make a Cash Settlement in accordance with paragraph (a)(i) above and
makes the payment required by paragraph (a)(ii) above, the Forward
Purchase Contract underlying each Income PRIDES if a Special Event
Redemption has occurred will be settled with the Proceeds at maturity
of the Applicable Ownership Interest (as defined in clause (A) of the
definition of such term) of the Treasury Portfolio. Upon receipt of
such Proceeds, the Collateral Agent will, pursuant to the written
direction of the Company which may be in the form of a standing order,
invest the Proceeds promptly in Permitted Investments and pay the
Proceeds to the Company on the Forward Purchase Contract Settlement
Date in accordance with the terms of this Agreement and the Pledge
Agreement. Any such Proceeds received by the Collateral Agent in excess
of the Purchase Price and any funds received by the Collateral Agent in
respect of the investment earnings from the investment in such
Permitted Investments will be distributed to the Agent when received
for payment to the Holders.
(b) (i) Unless a Termination Event or Early Settlement has occurred,
each Holder of a Growth PRIDES who intends to pay in cash to satisfy such
Holder's obligations under the Forward Purchase Contract on the Forward Purchase
Contract Settlement Date shall notify the Agent by use of a notice in
substantially the form of Exhibit E hereto of its intention to effect a
41
Cash Settlement. Such notice shall be given prior to 5:00 p.m. ( New York City
time), on the second Business Day immediately preceding the Forward Purchase
Contract Settlement Date. Prior to 11:00 a.m. (New York City time) on the next
succeeding Business Day, the Agent shall notify the Collateral Agent of the
receipt of such notices from such Holders intending to make a Cash Settlement.
Growth PRIDES Holders may make Cash Settlements only in integral multiples of 40
Growth PRIDES.
(ii) A Holder of a Growth PRIDES who has so notified the Agent
of its intention to make a Cash Settlement in accordance with paragraph
(b)(i) above shall pay the Purchase Price times the number of Forward
Purchase Contracts being settled to the Collateral Agent prior to 11:00
a.m. (New York City time), on the Business Day immediately preceding
the Forward 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
Collateral Agent. Any cash received by the Collateral Agent will be
invested promptly by the Collateral Agent, pursuant to the written
direction of the Company which may be in the form of a standing order,
in Permitted Investments and paid to the Company on the Forward
Purchase Contract Settlement Date in settlement of the Forward Purchase
Contract in accordance with the terms of this Agreement and the Pledge
Agreement. Any funds received by the Collateral Agent in respect of the
investment earnings from the investment in such Permitted Investments
in excess of the Purchase Price for the shares of Common Stock to be
purchased by such Holder shall be distributed to the Agent when
received for payment to the Holder.
(iii) If a Holder of a Growth PRIDES fails to notify the Agent
of its intention to make a Cash Settlement in accordance with paragraph
(b)(i) above, or does notify the Agent as provided in paragraph (b)(i)
above but fails to make such payment as required by paragraph (b)(ii)
above, then upon the maturity of the Pledged Treasury Securities held
by the Collateral Agent on the Business Day immediately preceding the
Forward Purchase Contract Settlement Date, the principal amount of the
Treasury Securities received by the Collateral Agent will be invested
promptly in Permitted Investments pursuant to the written direction of
the Company which may be in the form of a standing order. On the
Forward 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. 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 Forward Purchase Contracts being
settled thereby, the Collateral Agent will distribute such excess to
the Agent for the benefit of the Holder of the related Growth PRIDES
when received.
(c) Any distribution to Holders of excess funds described above shall
be payable at the office of the 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 Security
Register.
(d) Upon Cash Settlement of any Forward Purchase Contract:
42
(i) the Collateral Agent will in accordance with the terms of
the Pledge Agreement cause the pledged Preferred Stock, the pledged
appropriate Applicable Ownership Interest (as specified in clause (A)
of the definition of such term) of the Treasury Portfolio or the
pledged Treasury Securities, as the case may be, underlying the
relevant Security to be released from the Pledge, by the Collateral
Agent, free and clear of any security interest of the Company and
transferred to the Agent for delivery to the Holder thereof or its
designee as soon as practicable; and
(ii) subject to the receipt thereof from the Collateral Agent,
the Agent shall, by book-entry transfer or other appropriate
procedures, in accordance with written instructions provided by the
Holder thereof, transfer such Preferred Stock, or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio or such Treasury
Securities, as the case may be (or, if no such instructions are given
to the Agent by the Holder, the Agent shall hold such Preferred Stock,
or the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio or
such Treasury Securities, as the case may be, and any Dividends or
distributions thereon, in the name of the 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 where
such property is held).
(e) The obligations of the Holders to pay the Purchase Price are
non-recourse obligations and, except to the extent satisfied 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.
(f) The Company shall not be obligated to issue any shares of Common
Stock in respect of a Forward Purchase Contract or deliver any certificate
therefor to the Holder of the related Security unless the Company shall have
received payment in full of the aggregate Purchase Price for the Common Stock to
be purchased thereunder in the manner herein set forth.
(g) Notwithstanding anything to the contrary contained herein, Section
5.2(c) and (f) may not be amended without prior approval from the Federal
Reserve Board.
Section 5.4. Issuance of Shares of Common Stock.
(a) Unless a Termination Event or an Early Settlement shall have
occurred, on the Forward Purchase Contract Settlement Date, upon receipt of the
aggregate Purchase Price payable on all Outstanding Securities pursuant to the
foregoing provisions of this Article V and subject to Section 5.5(b) and Section
5.10, the Company shall issue and deposit with the Agent, for the benefit of the
Holders of the Outstanding Securities, one or more certificates representing
newly issued shares of Common Stock registered in the name of the Agent (or its
nominee) as custodian for the Holders (such certificates for 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 Forward Purchase
Contract Settlement Date, being hereinafter referred to as the "Forward Purchase
Contract Settlement Fund") to which the Holders are entitled hereunder.
43
(b) Subject to the foregoing, upon surrender of a Certificate to the
Agent on or after the Forward Purchase Contract Settlement Date or Early
Settlement Date, as the case may be, 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 newly issued whole shares of Common Stock which such Holder is entitled to
receive pursuant to the provisions of this Article V (after taking into account
all 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 Forward Purchase Contract
Settlement Fund, but without any interest thereon, and the Certificate so
surrendered shall forthwith be cancelled. Such shares shall be registered in the
name of the Holder or the Holder's designee as specified in the settlement
instructions provided by the Holder to the Agent. If any Common Stock issued in
respect of a Forward Purchase Contract are to be registered to a Person other
than the Person in whose name the Certificate evidencing such Forward 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 Forward Purchase Contract or has established
to the satisfaction of the Company that such tax either has been paid or is not
payable.
Section 5.5. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on the Common Stock in Common Stock, the Settlement Rate in effect
at the opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be increased by dividing such Settlement Rate by a fraction
of which:
(i) the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination; and
(ii) 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 agrees that it shall not pay
any dividend or make any distribution on Common Stock held in the treasury of
the Company.
(2) In case the Company shall issue rights, warrants or options, other
than pursuant to any dividend reinvestment plans or share purchase plans, to all
holders of its Common Stock (not being available on an equivalent basis to
Holders of the Securities upon settlement of the Forward 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
44
rights, warrants or options, to subscribe for or purchase Common Stock at a
price per share less than the Current Market Price per share of Common Stock on
the date fixed for determination of the stockholders entitled to receive and
rights, options or warrants, 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:
(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. The Company agrees that
it shall notify the Agent if any issuance of such rights, warrants or options is
cancelled or not completed following the announcement thereof and the Settlement
Rate shall thereupon be readjusted to the Settlement Rate in effect immediately
prior to the date of such announcement. 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, warrants or options
in respect of Common Stock held in the treasury of the Company.
(3) In case outstanding Common Stock shall be subdivided or split into
a greater number of shares of Common Stock, the Settlement Rate in effect at the
opening of business on the day following the day upon which such subdivision or
split becomes effective shall be proportionately increased, and, conversely, in
case the 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 its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights, warrants or options referred to
in paragraph (2) of this Section 5.5(a), any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in paragraph
(1) of this Section 5.5(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:
45
(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
filed with the Agent) 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, paragraphs (1) and (2) of this Section 5.5(a) shall not be
applicable. In the event that such dividend or distribution is not so paid or
made, the Settlement Rate shall again be adjusted to be the Settlement Rate
which would then be in effect if such dividend or distribution had not been
declared.
(5) In case the Company shall, (I) by dividend or otherwise, distribute
to all holders of its Common Stock cash (excluding any cash that is distributed
(x) in connection with the payment by the Company of its normal quarterly
dividend), (y) in a Reorganization Event to which Section 5.5(b) applies, or (z)
as part of a distribution referred to in paragraph (4) of this Section) in an
aggregate amount that, combined together with (II) the aggregate amount of any
other distributions to all holders of its Common Stock made exclusively in cash
within the 12 months preceding the date of payment of such distribution
(excluding any cash that is distributed in connection with the payment by the
Company of its normal quarterly dividend and in respect of which no adjustment
pursuant to this paragraph (5) or paragraph (6) of this Section has been made,
exceeds 10% of the product of the Current Market Price per share of the Common
Stock on the date for the determination of holders of shares of Common Stock
entitled to receive such distribution multiplied by the number of shares of
Common Stock outstanding on such date, then, in 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
record date fixed for determination of the stockholders entitled to receive such
distribution by a fraction of:
(i) the numerator shall be equal to the Current Market Price
per share of Common Stock on the record date fixed for determination of
the stockholders entitled to receive such distribution less the amount
of cash distributed or payable in the transactions described in clauses
(I) and (II) above (and not excluded as provided above) applicable to
one share of Common Stock; and
(ii) the denominator shall be the Current Market Price per
share of Common Stock on such date of 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 (as
hereinafter defined) of (I) an aggregate consideration having a fair market
46
value (as reasonably determined by the Board of Directors, whose determination
shall be conclusive and the basis for which shall be described in a Board
Resolution) that combined together with the aggregate of the cash plus the fair
market value (as reasonably determined by the Board of Directors, whose
determination shall be conclusive and the basis of which shall be 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 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 this paragraph
(6) has been made, and (II) the aggregate amount of any distributions (other
than regular quarterly cash 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 5.5 or this paragraph (6) has been made, exceeds 10% 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) at 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:
(i) the numerator of which shall be equal to (A) the product of
(I) the Current Market Price per share of Common Stock on the date of
the Expiration Time and (II) the number of shares of Common Stock
outstanding (including any tendered shares) at the Expiration Time less
(B) the amount of cash plus the fair market value (determined as
aforesaid) of the aggregate consideration payable to shareholders based
on the transactions described in clauses (I) and (II) above (assuming
in the case of clause (I) the acceptance, up to any maximum specified
in the terms of the Tender or Exchange Offer, of Purchased Shares); and
(ii) the denominator of which 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 5.5(b) applies) shall be deemed to
involve:
(i) a distribution of such securities other than Common Stock
to all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of stockholders entitled to receive such distribution"
and the "date fixed for such determination" within the meaning of
paragraph (4) of this Section); and
47
(ii) a subdivision, split or combination, as the case may be,
of the number of shares of Common Stock outstanding immediately prior
to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such
subdivision or split becomes effective" or "the day upon which such
combination becomes effective," as the case may be, and "the day upon
which such subdivision, split or combination becomes effective" within
the meaning of paragraph (3) of this Section).
(8) The "Current Market Price" per share of Common Stock on any date of
determination 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 such date of
determination 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 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 5.5(a), an adjustment shall also
be made to the Applicable Market Value solely to determine which of clauses (1),
(2) or (3) of the definition of Settlement Rate in Section 5.1 will apply on the
Forward 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 5.5(a) and
the denominator shall be the Settlement Rate immediately prior to 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 5.5(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, but shall not be required to, make such increases
in the Settlement Rate, in addition to those required by this Section, as it
considers to be advisable in order to avoid or diminish any income tax to any
holders of Common Stock resulting from any dividend or distribution of stock or
issuance of rights or warrants to purchase or subscribe for stock or from any
event treated as such for income tax purposes or for any other reason.
(b) Adjustment for Consolidation, Merger or Other Reorganization Event.
(1) In the event of:
48
(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 Common Stock
outstanding immediately prior to the merger or consolidation is not
exchanged for cash, securities or other property of the Company or
another corporation),
(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"),
each Forward Purchase Contract will be automatically adjusted to provide that
each Holder of Securities will receive on the Forward Purchase Contract
Settlement Date or any Early Settlement Date (other than in connection with an
Early Settlement pursuant to Section 5.5(b)(2)) occurring after such
Reorganization Event, as the case may be, with respect to each Forward Purchase
Contract forming a part thereof, the Adjusted Exchange Property (without any
interest thereon, and without any right to dividends or distribution thereon
which have a record date that is prior to the Early Settlement Date or Forward
Purchase Contract Settlement Date, as the case may be). For purposes of the
foregoing, it is assumed that the Holder referred to in the second preceding
sentence is not a Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be (any such Person, a "Constituent Person"),
or an Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Stock held by Affiliates of the
Company and non-affiliates and such Holder failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such Reorganization Event (provided that if the kind or
amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("non-electing share"), then for the purpose of
this Section the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares).
The "Adjusted Exchange Property" shall equal
(A) in the case of settlement of a Forward Purchase Contract on
the Forward Purchase Contract Settlement Date, an amount of Base
Exchange Property multiplied by the applicable Settlement Rate (which
Settlement Rate, for purposes of this Section 5.5(b)(1), shall be
determined by reference to the Applicable Exchange Property Market
Value in lieu of the Applicable Market Value and which shall be applied
as if the Base Exchange Property were one share of Common Stock); and
49
(B) in the case of an Early Settlement pursuant to Section 5.8,
an amount of Base Exchange Property multiplied by the Early Settlement
Rate (which shall be applied as if the Base Exchange Property were one
share of Common Stock).
"Base Exchange Property" means the hypothetical amount of securities,
cash and other property that would have been received upon consummation of the
Reorganization Event in exchange for one share of Common Stock.
"Applicable Exchange Property Market Value" shall mean (1) with respect
to any publicly traded securities receivable by holders of Common Stock pursuant
to a Reorganization Event, the Closing Price of such securities (substituting
such securities for Common Stock in the definition of the term Closing Price),
(2) in the case of any cash receivable by holders of Common Stock pursuant to a
Reorganization Event, the amount of such cash and (3) in the case of any other
property receivable by holders of Common Stock pursuant to a Reorganization
Event, the market value of such property, as determined by a nationally
recognized investment banking firm retained by the Company for this purpose.
(2) In the event of a consolidation or merger of the Company with or
into another Person, any merger of another Person into the Company (other than a
merger that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock) in which 30% or more of the
total consideration paid to the Company's shareholders consists of cash or cash
equivalents (any such event a "Cash Merger"), then a Holder of a Security may
settle his Forward Purchase Contract for cash as described in Section 5.3(a)(i)
or 5.3(b)(i) hereof, as applicable, on or after the date of such Cash Merger, at
the applicable Settlement Rate. Within five Business Days of the completion of a
Cash Merger, the Company shall provide written notice to the Agent and the
Holders of Securities of such completion of a Cash Merger, which shall specify
the deadline for submitting a notice of Early Settlement pursuant to this
Section 5.5(b)(2), the Early Settlement Date, the applicable Settlement Rate and
the amount (per share of Common Stock) of cash, securities and other
consideration receivable by the Holder upon settlement. For the purposes of this
Section 5.5(b)(2), the date of the closing of the merger or consolidation shall
be deemed to be the Forward Purchase Contract Settlement Date for the purpose of
determining the Applicable Market Value and the deadline for submitting the
notice to settle early and the related cash payment shall be 5:00 p.m. (New York
City time) on the tenth day after the date the notice relating to a Cash Merger
is provided to the Agent and the Holders by the Company. Growth PRIDES Holders
may only effect Early Settlement pursuant to this Section 5.5(b)(2) in integral
multiples of 40 Forward Purchase Contracts. If a Special Event Redemption has
occurred, Income PRIDES Holders may only effect Early Settlement pursuant to
this Section 5.5(b)(2) in multiples of [ ] Forward Purchase Contracts. Other
than the provisions relating to timing of notice and settlement, which shall be
as set forth above, the provisions of Section 5.1(a) shall apply with respect to
an Early Settlement following a Cash Merger pursuant to this Section 5.5(b)(2).
Notwithstanding the foregoing, no Early Settlement will be permitted pursuant to
this Section 5.5(b)(2) unless, at the time such Early Settlement is effected,
there is an effective registration statement with respect to any Common Stock to
be issued and delivered in connection with such Early Settlement, if such a
registration statement is required (in the view of counsel, which need not be in
the form of a written opinion, for the Company) under the Securities Act. If
such a registration statement is so required, the Company covenants and agrees
to use its commercially reasonable efforts to
50
(A) have in effect a registration statement covering any securities to be
delivered in respect of the Forward Purchase Contracts being settled and (B)
provide a prospectus in connection therewith, in each case in a form that may be
used in connection with such Early Settlement.
(3) 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 termination of
the Company, the Company or a liquidating trust created in connection therewith,
shall execute and deliver to the Agent an agreement supplemental hereto
providing that the Holders of each Outstanding Security shall have the rights
provided by this Section 5.5. 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 5.5. The above provisions of this
Section 5.5 shall similarly apply to successive Reorganization Events.
(c) All calculations and determinations pursuant to this Section 5.5
shall be made by the Company or its agent and the Agent shall have no
responsibility with respect thereto.
Section 5.6. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Co-Issuers shall:
(i) forthwith compute the adjusted Settlement Rate in
accordance with Section 5.5 and prepare and transmit to the Agent an
Officers' Certificate setting forth the Settlement Rate, the method of
calculation thereof in reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based; and
(ii) unless an earlier notification is expressly required by
the terms hereof, within 10 Business Days following the occurrence of
an event that requires an adjustment to the Settlement Rate pursuant to
Section 5.5 (or if the Co-Issuers are not aware of such occurrence, as
soon as practicable after becoming so aware), provide a written notice
to the Agent and 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 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 Agent shall not be accountable with
respect to the validity or value (or the kind or amount) of any Common Stock, or
of any securities or property, which may at the time be issued or delivered with
respect to any Forward Purchase Contract; and the Agent makes no representation
with respect thereto. The Agent shall not be responsible for any failure of the
Company to issue, transfer or deliver any Common Stock pursuant to a Forward
Purchase Contract or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article.
51
Section 5.7. Termination Event; Notice.
(a) The Forward Purchase Contracts and all obligations and rights of
the Co-Issuers and the Holders thereunder, including, without limitation, the
rights of the Holders to receive and the obligation of the Company to pay any
Contract Adjustment Payments (including any deferred or accrued and unpaid
Contract Adjustment Payments), if the Company shall have such obligation, and
the rights and obligations of Holders to purchase Common Stock, shall
immediately and automatically terminate, without the necessity of any notice or
action by any Holder, the Agent or the Company, if, prior to or on the Forward
Purchase Contract Settlement Date, a Termination Event shall have occurred.
(b) Upon and after the occurrence of a Termination Event, the
Securities shall thereafter represent the right to receive the Preferred Stock,
the Treasury Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, forming part of such Securities, in
accordance with the provisions of Section 4.3 of the Pledge Agreement; provided,
however, that, to the extent that a Holder of Income PRIDES or Growth PRIDES
would otherwise be entitled to receive less than $1,000 principal amount at
maturity of the Treasury Portfolio or the Treasury Securities, the Agent shall
dispose of such securities for cash, and transfer the appropriate amount of such
cash to such Holder in accordance with such Holder's written instructions. Upon
the occurrence of a Termination Event, the Co-Issuers shall promptly but in no
event later than two Business Days thereafter give written notice to the Agent,
the Collateral Agent and to the Holders, at their addresses as they appear in
the Security Register.
Section 5.8. Early Settlement.
(a) Subject to and upon compliance with the provisions of this Section
5.8, at the option of the Holder thereof, the Forward Purchase Contracts
underlying the Securities may be settled early ("Early Settlement") in the case
of Income PRIDES, on or prior to 10:00 a.m. (New York City time) on the seventh
Business Day immediately preceding the Forward Purchase Contract Settlement Date
and in the case of Growth PRIDES on or prior to 10:00 a.m. (New York City time),
on the second Business Day immediately preceding the Forward Purchase Contract
Settlement Date but in the case of Growth PRIDES only in integral multiples of
40 Forward Purchase Contracts. If a Special Event Redemption has occurred,
Holders of Income PRIDES may effect Early Settlement prior to or on the second
Business Day immediately preceding the Forward Purchase Contract Settlement
Date, but only in multiples of [ ] Forward Purchase Contracts.
(b) In order to exercise the right to effect Early Settlement with
respect to any Forward Purchase Contracts, the Holder of the Certificate
evidencing Securities shall deliver such Certificate to the Agent at the
Corporate Trust Office together with an Election to Settle Early form (on the
reverse side of the Certificate duly completed) or take the appropriate measures
to effect early settlement by book-entry transfer and, in each case, deliver any
other documents requested by the Agent and accompanied by payment (payable to
the Company in immediately available funds) in an amount (the "Early Settlement
Amount") equal to the product of (i)(A) the Stated Amount times (B) the number
of Forward Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement, plus (ii) if such delivery is made with
52
respect to any Forward 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 Forward Purchase
Contracts.
(c) Except as provided in the immediately preceding paragraph and
subject to Section 5.12(c), no payment or adjustment shall be made upon Early
Settlement of any Forward Purchase Contract on account of any Contract
Adjustment Payments accrued on such Forward Purchase Contract or on account of
dividends payable on the Common Stock issued upon such Early Settlement, the
Record Date for which payment occurs prior to the Early Settlement Date. If the
foregoing requirements are first satisfied with respect to Forward 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 (so long as such next succeeding Business
Day is not later than the fifth Business Day immediately preceding the Forward
Purchase Contract Settlement Date).
(d) Upon Early Settlement of Forward 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 Forward
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. As promptly as
practicable after Early Settlement of Purchase Contracts in accordance with the
provisions of this Section 5.8, the Company shall issue and shall deliver to the
Agent at the Corporate Trust Office a certificate or certificates for the full
number of shares of Common Stock issuable upon such Early Settlement together
with payment in lieu of any fraction of a share, as provided in Section 5.10.
(e) No Early Settlement will be permitted under this Section 5.8
unless, at the time of delivery of the Election to Settle Early form or the time
the Early Settlement is effected, there is an effective registration statement
with respect to the shares of Common Stock to be issued and delivered in
connection with such Early Settlement, if such a registration statement is
required (in the view of counsel, which need not be in the form of a written
opinion, for either the Company or the Agent) under the Securities Act. If such
a registration statement is so required, the Company covenants and agrees to use
its commercially reasonable efforts to (A) have in effect a registration
statement covering the shares of Common Stock to be delivered in respect of the
Forward Purchase Contracts being settled and (B) provide a prospectus in
connection therewith, in each case in a form that the Agent may use in
connection with such Early Settlement.
(f) No later than the third Business Day after the applicable Early
Settlement Date the Company shall cause:
(i) the shares of Common Stock issuable upon Early Settlement
of the Forward 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
53
(ii) the related shares of Preferred Stock or the appropriate
Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, in the case of
Income PRIDES, or the related Treasury Securities, in the case of
Growth PRIDES, to be released from the Pledge by the Collateral Agent
and transferred, in each case, to the Agent for delivery to the Holder
thereof or its designee.
(g) Upon Early Settlement of any Forward Purchase Contracts, and
subject to receipt of shares of Common Stock from the Company and the Preferred
Stock, the appropriate Applicable Ownership Interest (as specified in clause (A)
of the definition of such term) of the Treasury Portfolio or Treasury
Securities, as the case may be, from the Collateral Agent, as applicable, the
Agent shall, in accordance with the instructions provided by the Holder thereof
on the Election to Settle Early form on the reverse of the Certificate
evidencing the related Securities:
(i) transfer to the Holder the Preferred Stock, the appropriate
Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio or Treasury
Securities, as the case may be, forming a part of such Securities; and
(ii) deliver to the Holder a certificate or certificates for
the full number of shares of Common Stock issuable upon such Early
Settlement together with payment in lieu of any fraction of a share, as
provided in Section 5.10; and
(iii) if so required under the Securities Act, deliver a
prospectus for the shares of Common Stock issuable upon such Early
Settlement as contemplated by Section 5.8(e).
(h) In the event that Early Settlement is effected with respect to
Forward Purchase Contracts underlying less than all the Securities evidenced by
a Certificate, upon such Early Settlement the Co-Issuers shall execute and the
Agent shall authenticate, countersign and deliver to the Holder thereof, at the
expense of the Co-Issuers, a Certificate evidencing the Securities as to which
Early Settlement was not effected.
Section 5.9. Early Settlement Upon Merger.
In the event of a merger or consolidation of the Company which
qualifies as a Cash Merger as described in Section 5.5(b), the provisions of
Section 5.5(b) shall apply.
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 Forward Purchase
Contract Settlement Date or upon Early Settlement of any Forward Purchase
Contracts. If Certificates evidencing more than one Forward 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 Forward Purchase Contracts
evidenced by the Certificates so surrendered. Instead of any fractional share of
Common Stock which would
54
otherwise be deliverable upon settlement of any Forward Purchase Contracts on
the Forward Purchase Contract Settlement Date or upon Early Settlement, the
Company, through the 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 Agent from time
to time with sufficient funds to permit the Agent to make all cash payments
required by this Section 5.9 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 Forward 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 Agent, as custodian for such Holder, and
the Company shall not be required to issue or deliver such share certificates or
Certificates unless or until the Person or Persons requesting the transfer or
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid
or that no such tax is due.
Section 5.12. Contract Adjustment Payments.
(a) Subject to Section 5.13, the Company shall pay, on each Payment
Date, the Contract Adjustment Payments payable in respect of each Forward
Purchase Contract to the Person in whose name a Certificate 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 Agent in New
York City 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 Security Register or by wire transfer to the account
designated by a prior written notice from such Holder. 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 succeeding day that is a Business Day (and without any interest in respect
of any such delay). Contract Adjustment Payments payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months.
(b) Upon the occurrence of a Termination Event, the Company's
obligation to pay future Contract Adjustment Payments (including any accrued or
deferred Contract Adjustment Payments) shall cease.
(c) 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 Income PRIDES) any other
Certificate shall carry the right to accrued or deferred and unpaid Contract
Adjustment Payments and the right to accrue Contract Adjustment Payments, which
rights were carried by the Forward Purchase Contracts underlying such other
Certificates.
55
(d) Subject to Section 5.8 or Section 5.9, in the case of any Security
with respect to which Early Settlement has been effected on a date that is after
any Record Date and prior to or on 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 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 Forward Purchase Contract is effected, Contract Adjustment
Payments that would otherwise be payable after the Early Settlement Date with
respect to such Forward Purchase Contract shall not be payable.
(e) The Company's obligations with respect to Contract Adjustment
Payments, if any, will be subordinated and junior in right of payment to the
Company's obligations under any Senior Indebtedness.
(f) In the event (x) of any payment by, or distribution of assets of,
the Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution, winding-up, liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, or (y) subject to the provisions of Section
5.12(h) below, that (i) a default shall have occurred and be continuing with
respect to the payment of principal, interest or any other monetary amounts due
and payable on any Senior Indebtedness and such default shall have continued
beyond the period of grace, if any, specified in the instrument evidencing such
Senior Indebtedness (and the Agent shall have received written notice thereof
from the Company or one or more holders of Senior Indebtedness or their
representative or representatives or the trustee or trustees under any indenture
pursuant to which any such Senior Indebtedness may have been issued), or (ii)
the maturity of any Senior Indebtedness shall have been accelerated because of a
default in respect of such Senior Indebtedness (and the Agent shall have
received written notice thereof from the Company or one or more holders of
Senior Indebtedness or their representative or representatives or the trustee or
trustees under any indenture pursuant to which any such Senior Indebtedness may
have been issued), then:
(i) the holders of all Senior Indebtedness shall first be
entitled to receive, in the case of clause (x) above, payment of all
amounts due or to become due upon all Senior Indebtedness and, in the
case of subclauses (i) and (ii) of clause (y) above, payment of all
amounts due thereon, or provision shall be made for such payment in
money or money's worth, before the Holders of any of the Securities are
entitled to receive any Contract Adjustment Payments on the Forward
Purchase Contracts underlying the Securities;
(ii) any payment by, or distribution of assets of, the Company
of any kind or character, whether in cash, property or securities, to
which the Holders of any of the Securities would be entitled except for
the provisions of Section 5.12(e) through (q), including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being
subordinated to the payment of such Contract Adjustment Payments on the
Forward Purchase Contracts underlying the Securities, shall be paid or
delivered by the Person making such payment
56
or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of such
Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account
of such Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness remaining
unpaid after giving effect to any concurrent payment or distribution
(or provision therefor) to the holders of such Senior Indebtedness,
before any payment or distribution is made of such Contract Adjustment
Payments to the Holders of such Securities; and
(iii) in the event that, notwithstanding the foregoing, any
payment by, or distribution of assets of, the Company of any kind or
character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being
subordinated to the payment of Contract Adjustment Payments on the
Forward Purchase Contracts underlying the Securities, shall be received
by the Agent or the Holders of any of the Securities when such payment
or distribution is prohibited pursuant to Section 5.12(e) through (q),
such payment or distribution shall be paid over to the holders of such
Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture pursuant to which any
instruments evidencing any such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent
payment or distribution (or provision therefor) to the holders of such
Senior Indebtedness.
(g) For purposes of Section 5.12(e) through (q), the words "cash,
property or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any other
Person provided for by a plan of reorganization or readjustment, the payment of
which is subordinated at least to the extent provided in Section 5.12(e) through
(q) with respect to such Contract Adjustment Payments on the Securities to the
payment of all Senior Indebtedness which may at the time be outstanding;
provided that (i) the indebtedness or guarantee of indebtedness, as the case may
be, that constitutes Senior Indebtedness is assumed by the Person, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness are not, without the consent of each such
holder adversely affected thereby, altered by such reorganization or
readjustment;
(h) Any failure by the Company to make any payment on or perform any
other obligation under Senior Indebtedness, other than any indebtedness incurred
by the Company or assumed or guaranteed, directly or indirectly, by the Company
for money borrowed (or any deferral, renewal, extension or refunding thereof) or
any indebtedness or obligation as to which the provisions of Section 5.12(e)
through (g) shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed, guaranteed or otherwise
created such indebtedness or obligation, shall not be deemed a default or event
of default if (i) the Company shall be disputing its obligation to make such
payment or perform such obligation and (ii) either (A) no final judgment
relating to such dispute shall have been issued
57
against the Company which is in full force and effect and is not subject to
further review, including a judgment that has become final by reason of the
expiration of the time within which a party may seek further appeal or review,
and (B) in the event a judgment that is subject to further review or appeal has
been issued, the Company shall in good faith be prosecuting an appeal or other
proceeding for review and a stay of execution shall have been obtained pending
such appeal or review.
(i) Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated (equally and ratably with the
holders of all obligations of the Company which by their express terms are
subordinated to Senior Indebtedness of the Company to the same extent as payment
of the Contract Adjustment Payments in respect of the Forward Purchase Contracts
underlying the Securities is subordinated and which are entitled to like rights
of subrogation) to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until all such Contract Adjustment
Payments owing on the Securities shall be paid in full, and as between the
Company, its creditors other than holders of such Senior Indebtedness and the
Holders, no such payment or distribution made to the holders of Senior
Indebtedness by virtue of Section 5.12(e) through (q) that otherwise would have
been made to the Holders shall be deemed to be a payment by the Company on
account of such Senior Indebtedness, it being understood that the provisions of
Section 5.12(e) through (q) are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders of
Senior Indebtedness, on the other hand.
(j) Nothing contained in Section 5.12(e) through (q) or elsewhere in
this Agreement or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders such Contract Adjustment Payments on the Securities as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Agent or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this Agreement, subject
to the rights, if any, under Section 5.12(e) through (q), of the holders of
Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
(k) Upon payment or distribution of assets of the Company referred to
in Section 5.12(e) through (q), the Agent and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which any such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Company is pending or upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee or agent or other Person making any payment or distribution,
delivered to the Agent or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to these Section 5.12(e) through (q).
58
(l) The Agent shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee or representative on behalf of such holder) to
establish that such notice has been given by a holder of Senior Indebtedness or
a trustee or representative on behalf of any such holder or holders. In the
event that the Agent determines in good faith that further evidence is required
with respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to Section 5.12(e) through
(q), the Agent may request such Person to furnish evidence to the reasonable
satisfaction of the Agent as to the amount of Senior Indebtedness held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under Section 5.12(e) through (q), and, if such evidence is not
furnished, the Agent may defer payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
(m) Nothing contained in Section 5.12(e) through (q) shall affect the
obligations of the Company to make, or prevent the Company from making, payment
of the Contract Adjustment Payments, except as otherwise provided in these
Section 5.12(e) through (q).
(n) Each Holder of Securities, by his acceptance thereof, authorizes
and directs the Agent on his, her or its behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in Section
5.12 (e) through (q) and appoints the Agent his, her or its attorney-in-fact, as
the case may be, for any and all such purposes.
(o) The Company shall give prompt written notice to the Agent of any
fact known to the Company that would prohibit the making of any payment of
moneys to or by the Agent in respect of the Securities pursuant to the
provisions of this Section. Notwithstanding the provisions of Section 5.12(e)
through (q) or any other provisions of this Agreement, the Agent shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of moneys to or by the Agent, or the taking of any other
action by the Agent, unless and until the Agent shall have received written
notice thereof marked "Urgent" and mailed or delivered to the Agent at its
Corporate Trust Services department from the Company, any Holder, or the holder
or representative of any Senior Indebtedness; provided that if at least two
Business Days prior to the date upon which by the terms hereof any such moneys
may become payable for any purpose, the Agent shall not have received with
respect to such moneys the notice provided for in this Section, then, anything
herein contained to the contrary notwithstanding, the Agent shall have full
power and authority to receive such moneys and to apply the same to the purpose
for which they were received and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to or on or
after such date.
(p) The Agent in its individual capacity shall be entitled to all the
rights set forth in this Section with respect to any Senior Indebtedness at the
time held by it, to the same extent as any other holder of Senior Indebtedness
and nothing in this Agreement shall deprive the Agent of any of its rights as
such holder.
(q) No right of any present or future holder of any Senior Indebtedness
to enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any noncompliance by the Company with the
59
terms, provisions and covenants of this Agreement, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with.
(r) Nothing in this Section 5.12 shall apply to claims of, or payments
to, the Agent under or pursuant to Section 7. 7.
(s) With respect to the holders of Senior Indebtedness, (i) the duties
and obligations of the Agent shall be determined solely by the express
provisions of this Agreement; (ii) the Agent shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Agreement; (iii) no implied covenants or obligations shall be read into this
Agreement against the Agent; and (iv) the Agent shall not be deemed to be a
fiduciary as to such holders.
Section 5.13. Deferral of Contract Adjustment Payments.
(a) The Company has the right to defer payment of all or part of the
Contract Adjustment Payments in respect of each Forward Purchase Contract until
no later than the Forward Purchase Contract Settlement Date, but only if the
Company shall give the Holders and the Agent written notice of its election to
defer such payment (specifying the amount to be deferred) at least ten Business
Days prior to the earlier of (i) the next succeeding Payment Date or (ii) the
date the Company is required to give notice of the Record Date or Payment Date
with respect to payment of such Contract Adjustment Payments to the NYSE or
other applicable self-regulatory organization or to Holders of the Securities,
but in any event not less than one Business Day prior to such Record Date. If
the Company so elects to defer Contract Adjustment Payments, the Company shall
pay additional Contract Adjustment Payments on such deferred installments of
Contract Adjustment Payments at a rate equal to [ ]% per annum, compounding
quarterly, until such deferred installments are paid in full. Deferred Contract
Adjustment Payments shall be due on the next succeeding Payment Date except to
the extent that payment is deferred pursuant to this Section. No deferral period
may end on a date other than a Payment Date. Except as otherwise provided in
Section 5.12(d), in the case of any Security with respect to which Early
Settlement of the underlying Forward Purchase Contract is effected on an Early
Settlement Date, the Holder will have no right to receive any accrued or
deferred Contract Adjustment Payments.
(b) Subject to Section 5.13(c), in the event the Company elects to
defer the payment of Contract Adjustment Payments on the Forward Purchase
Contracts until the Forward Purchase Contract Settlement Date, each Holder will
receive on the Forward Purchase Contract Settlement Date the aggregate amount of
accrued and unpaid Contract Adjustment Payments. The Company shall pay such
amounts on the Forward Purchase Contract Settlement Date in the manner described
in Section 5.3(d).
(c) The Company has the right to elect, by giving written notice to the
Holders and the Agent at least ten Business Days prior to the Forward Purchase
Contract Settlement Date, in lieu of a cash payment to issue to each Holder a
number of shares of Common Stock (in addition to a number of shares of Common
Stock equal to the Settlement Rate) equal to (x) the aggregate amount of
Deferred Contract Adjustment Payments payable to such Holder divided by (y) the
Applicable Market Value; provided that at such time there is in effect a
registration statement
60
with respect to the shares of Common Stock to be delivered in connection with
such deferred Contract Adjustment Payment, if such a registration statement is
required (in the view of counsel, which need not be in the form of a written
opinion, for either the Company or the Agent) under the Securities Act. If the
Company elects to pay such deferred Contract Adjustment Payments in shares of
Common Stock in lieu of cash, no fractional shares of Common Stock will be
issued by the Company. In lieu of fractional shares otherwise issuable with
respect to such payment of deferred Contract Adjustment Payments, the Holder
will be entitled to receive an amount in cash equal to the fraction of a share
times the Applicable Market Value as provided in Section 5.10 hereof.
(d) In the event the Company exercises its option to defer the payment
of Contract Adjustment Payments, then, until all deferred Contract Adjustment
Payments have been paid, the Company shall not, and shall not permit any of its
subsidiaries to, declare or pay dividends on, make distributions with respect
to, or redeem, purchase or acquire, or make a liquidation payment with respect
to, any of the Company's capital stock other than:
(i) purchases, redemptions or acquisitions of shares of capital
stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of
employees, officers or directors or a stock purchase or dividend
reinvestment plan, or the satisfaction by the Company of its
obligations pursuant to any contract or security outstanding on the
date the Company exercises its right to defer the Contract Adjustment
Payments;
(ii) as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of the
Company's capital stock for another class or series of the Company's
capital stock;
(iii) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged;
(iv) dividends or distributions in capital stock of the Company
(or rights to acquire capital stock) or repurchases, acquisitions or
redemptions of capital stock in connection with the issuance or
exchange of the Company's capital stock (or securities convertible into
or exchangeable for shares of the Company's capital stock); or
(v) redemptions, exchanges or repurchases of any rights
outstanding under a shareholder rights plan or the declaration or
payment thereunder of a dividend or distribution of or with respect to
rights in the future.
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 a Security shall have the right, which is absolute and
unconditional, (i) subject to the right of the Company to defer such payments in
accordance with Section 5.13, and
61
to forfeiture of any deferred Contract Adjustment Payments upon Early Settlement
pursuant to Section 5.8 or 5.9 or upon the occurrence of a Termination Event, to
receive each Contract Adjustment Payment with respect to the Forward Purchase
Contract comprising a part of such Security on the respective Payment Date for
such Security; and (ii) except upon and following a Termination Event, to
purchase shares of Common Stock pursuant to such Forward Purchase Contract and,
in each such case, to institute suit for the enforcement of any such right to
receive Contract Adjustment Payments and the 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, each
Co-Issuer 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 upon a default
or remedy upon a default shall impair any such right or remedy or constitute a
waiver of any such right. Every right and remedy given by this Article or by law
to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
Section 6.5. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of a Security, by
its acceptance of such Security shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Agreement, or in any suit against the Agent for any action
taken, suffered or omitted by it as Agent, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees 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 Co-Issuers, to any suit instituted by the Agent, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% of the Outstanding
62
Securities, or to any suit instituted by any Holder for the enforcement of
Dividends on any Preferred Stock or Contract Adjustment Payments on or after the
respective Payment Date therefor in respect of any Security held by such Holder,
or for enforcement of the right to purchase Common Stock under the Forward
Purchase Contracts constituting part of any Security held by such Holder.
Section 6.6. Waiver of Stay or Extension Laws.
Each of the Co-Issuers 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 each of the Co-Issuers (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 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 AGENT
Section 7.1. Certain Duties and Responsibilities.
(a) The 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 Agent; and
(2) in the absence of bad faith, willful misconduct or
negligence on its part, the Agent 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 Agent and conforming to the requirements of
this Agreement or the Pledge Agreement or Remarketing 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
Agent, the Agent shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Agreement or
the Pledge Agreement, as applicable (but need not confirm or
investigate the accuracy of the mathematical calculations or other
facts stated therein).
(b) No provision of this Agreement or the Pledge Agreement shall be
construed to relieve the Agent from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section; and
63
(2) no provision of this Agreement or the Pledge Agreement or
the Remarketing Agreement shall require the Agent to expend or risk its
own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights
or powers, if indemnity satisfactory to the Agent is not provided to
it.
(c) the Agent shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority of the Outstanding Securities.
(d) Whether or not therein expressly so provided, every provision of
this Agreement, the Pledge Agreement and the Remarketing Agreement relating to
the conduct or affecting the liability of or affording protection to the Agent
shall be subject to the provisions of this Section.
(e) The Agent is authorized to execute and deliver the Pledge Agreement
and the Remarketing Agreement in its capacity as Agent.
Section 7.2. Notice of Default.
Within 30 days after the occurrence of any default by the Co-Issuers
hereunder of which a Responsible Officer of the Agent has actual knowledge, the
Agent shall transmit by mail to the Co-Issuers and the Holders of Securities, as
their names and addresses appear in the Security Register, notice of such
default hereunder, unless such default shall have been cured or waived.
Section 7.3. Certain Rights of Agent.
Subject to the provisions of Section 7.1:
(a) the Agent may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Co-Issuers mentioned herein shall
be sufficiently evidenced by an Officers' Certificate, Co-Issuer Order or
Co-Issuer Request, and any resolution of the Board of Directors of either
Co-Issuer may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement, the Pledge
Agreement or the Remarketing Agreement the Agent shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Agent (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely upon
an Officers' Certificate of the Co-Issuers;
(d) the Agent may consult with counsel of its selection appointed with
due care by it hereunder and the written advice of such counsel or any Opinion
of Counsel shall be full and
64
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the Agent,
in its discretion, and at the expense of the Co-Issuers, may make reasonable
further inquiry or investigation into such facts or matters related to the
execution, delivery and performance of the Forward Purchase Contracts as it may
see fit, and, if the Agent shall determine to make such further inquiry or
investigation, it shall be given a reasonable opportunity to examine the
relevant books, records and premises of the Co-Issuers, personally or by agent
or attorney and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation;
(f) the Agent may execute any of the powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys or an
Affiliate and the 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;
(g) the Agent shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request or direction of
any of the Holders pursuant to this Agreement, unless such Holders shall have
offered to the Agent security or indemnity satisfactory to the Agent against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(h) the Agent shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(i) the Agent shall not be deemed to have notice of any default
hereunder unless a Responsible Officer of the Agent has actual knowledge thereof
or unless written notice of any event which is in fact such a default is
received by the Agent at the Corporate Trust Office of the Agent, and such
notice references the Securities and this Agreement;
(j) the Agent may request that the Co-Issuers deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Agreement,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded;
(k) the rights, privileges, protections, immunities and benefits given
to the Agent, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, Agent in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder; and
(l) The Agent shall not be required to initiate or conduct any
litigation or collection proceedings hereunder and shall have no
responsibilities with respect to any default hereunder except as expressly set
forth herein.
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Section 7.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Certificates shall be taken as
the statements of the Co-Issuers and the Agent assumes no responsibility for
their accuracy. The Agent makes no representations as to the validity or
sufficiency of either this Agreement or of the Securities, or of the Pledge
Agreement or the Pledge. The Agent shall not be accountable for the use or
application by the Company of the proceeds in respect of the Forward Purchase
Contracts.
Section 7.5. May Hold Securities.
Any Security Registrar or any other agent of the Co-Issuers, or the
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 Co-Issuers,
the Collateral Agent or any other Person with the same rights it would have if
it were not Security Registrar or such other agent, or the Agent.
Section 7.6. Money Held in Custody.
Money held by the Agent in custody hereunder need not be segregated
from the other funds except to the extent required by law or provided herein.
The Agent shall be under no obligation to invest or pay interest on any money
received by it hereunder except as otherwise provided hereunder or agreed in
writing with the Co-Issuers.
Section 7.7. Compensation and Reimbursement.
The Co-Issuers, jointly and severally, agree:
(1) to pay to the Agent compensation for all services rendered by it
hereunder, under the Pledge Agreement and under the Remarketing Agreement as the
Co-Issuers, or either one of them, and the Agent shall from time to time agree
in writing;
(2) except as otherwise expressly provided herein, to reimburse the
Agent upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Agent in accordance with any provision of this
Agreement, the Pledge Agreement and the Remarketing Agreement (including the
reasonable compensation and the reasonable expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its gross negligence, willful misconduct or bad faith; and
(3) to indemnify the Agent and any predecessor Agent for, and to hold
it harmless against, any claim, demand, loss, liability, or expense incurred (or
to which it is subjected to) without negligence, willful misconduct or bad faith
on its part, arising out of or in connection with the acceptance or
administration of its duties hereunder and under the Pledge Agreement and the
Remarketing Agreement, including the reasonable costs and expenses of defending
itself against any claim (whether asserted by the Co-Issuers, a Holder or any
other Person) or liability in connection with the exercise or performance of any
of its powers or duties hereunder or thereunder.
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The provisions of this Section 7.7 shall survive the resignation and
removal of the Agent and the termination of this Agreement.
Section 7.8. Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be a
corporation or bank 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 Agent shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 7.10.
(b) The Agent may resign at any time by giving written notice thereof
to the Co-Issuers 60 days prior to the effective date of such resignation. If
the instrument of acceptance by a successor Agent required by Section 7.10 shall
not have been delivered to the Agent within 30 days after the giving of such
notice of resignation, the resigning Agent may petition, at the expense of the
Co-Issuers, any court of competent jurisdiction for the appointment of a
successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Securities delivered to the Agent and the
Co-Issuers. If the instrument of acceptance by a successor Agent required by
Section 7.10 shall not have been delivered to the Agent within 30 days after the
giving of such notice or removal, the Agent being removed may petition, at the
expense of the Co-Issuers, any court of competent jurisdiction for the
appointment of a successor Agent.
(d) If at any time:
(1) the Agent fails to comply with Section 310(b) of the TIA,
as if the Agent were an indenture trustee under an indenture qualified
under the TIA, after written request therefor by the Co-Issuers or by
any Holder who has been a bona fide Holder of a Security for at least
six months; or
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(2) the Agent shall cease to be eligible under Section 7.8 and
shall fail to resign after written request therefor by the Co-Issuers
or by any such Holder; or
(3) the Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent or of its
property shall be appointed or any public officer shall take charge or
control of the Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Co-Issuers by a Board Resolution may remove the
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 any court of competent jurisdiction for the removal of the Agent and
the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Co-Issuers, by a Board Resolution, shall promptly appoint a successor Agent and
shall comply with the applicable requirements of Section 7.10. If no successor
Agent shall have been so appointed by the Co-Issuers 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 himself and all others
similarly situated, or the Agent may, petition at the expense of the Co-Issuers,
any court of competent jurisdiction for the appointment of a successor Agent.
(f) The Co-Issuers shall give, or shall cause such successor Agent to
give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders as their names and addresses
appear in the applicable Security Register. Each notice shall include the name
of the successor 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 Agent, every
such successor Agent so appointed shall execute, acknowledge and deliver to the
Co-Issuers and to the retiring Agent an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Agent shall become
effective and such successor Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers, agencies and duties of the
retiring Agent; but, on the request of the Co-Issuers or the successor Agent,
such retiring Agent shall, upon payment of its charges and all other amounts due
to the Agent pursuant to Section 7.7, execute and deliver an instrument
transferring to such successor Agent all the rights, powers and trusts of the
retiring Agent and duly assign, transfer and deliver to such successor Agent all
property and money held by such retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Co-Issuers shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies referred
to in paragraph (a) of this Section 7.10.
(c) No successor Agent shall accept its appointment unless at the time
of such acceptance such successor Agent shall be qualified and eligible under
this Article.
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Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the 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 Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Agent, shall be the successor of the Agent hereunder, provided that such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Certificates shall have been
authenticated and executed on behalf of the Holders, but not delivered, by the
Agent then in office, any successor by merger, conversion or consolidation to
such Agent may adopt such authentication and execution and deliver the
Certificates so authenticated and executed with the same effect as if such
successor Agent had itself authenticated and executed such Securities.
Section 7.12. Preservation of Information; Communications to Holders.
(a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Agent in its
capacity as Security Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Agent, and furnish to the 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 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 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 Agent.
Except to the extent otherwise expressly provided in this Agreement,
the Agent assumes no obligations and shall not be subject to any liability under
this Agreement, the Pledge Agreement or any Forward Purchase Contract in respect
of the obligations of the Holder of any Security thereunder. Each of the
Co-Issuers agrees, and each Holder of a Certificate, by his or her acceptance
thereof, shall be deemed to have agreed, that the Agent's execution of the
Certificates on behalf of the Holders shall be solely as agent and
attorney-in-fact for the Holders, and that the Agent shall have no obligation to
perform such Forward Purchase Contracts on behalf of the Holders, except to the
extent expressly provided in Article V hereof. Anything contained in this
Agreement to the contrary notwithstanding, in no event shall the 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 Agent and regardless of the form of action.
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Section 7.14. Tax Compliance.
(a) The Agent, on its own behalf and on behalf of the Co-Issuers, 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 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 Agent shall comply in accordance with the terms hereof with any
written direction received from the Co-Issuers with respect to the execution or
certification of any required documentation and the application of such
requirements to particular payments or Holders or in other particular
circumstances, and may for purposes of this Agreement conclusively rely on any
such direction in accordance with the provisions of Section 7.1(a)(2) hereof.
(c) The Agent shall maintain in accordance with its customary
procedures all appropriate records documenting compliance with such
requirements, and shall make such records available, on written request, to each
of the Co-Issuers or their respective authorized representatives within a
reasonable period of time after receipt of such request.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
Section 8.1. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Co-Issuers and the Agent, at
any time and from time to time, may enter into one or more agreements
supplemental hereto, in form satisfactory to the Co-Issuers and the Agent to:
(1) evidence the succession of another Person to either
Co-Issuer, and the assumption by any such successor of the covenants of
such Co-Issuer herein and in the Certificates;
(2) add to the covenants of the Co-Issuers for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Co-Issuers;
(3) evidence and provide for the acceptance of appointment
hereunder by a successor Agent;
(4) make provision with respect to the rights of Holders
pursuant to the requirements of Section 5.5(b); or
(5) cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein, or
to make any other provisions with respect to such matters or questions
arising under this Agreement, provided that such action shall not
adversely affect the interests of the Holders in any material respect.
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Section 8.2. Supplemental Agreements with Consent of Holders.
(a) With the consent of the Holders of not less than a majority of the
Outstanding Securities voting together as one class, by Act of said Holders
delivered to the Co-Issuers and the Agent, the Co-Issuers, when authorized by a
Board Resolution, and the Agent may enter into an agreement or agreements
supplemental hereto for the purpose of modifying in any manner the terms of the
Forward 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 Security 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 Forward Purchase
Contract, impair the right of the Holder of any Forward Purchase
Contract to receive distributions on the related Collateral (except for
the rights of Holders of Income PRIDES to substitute the Treasury
Securities for the Pledged Preferred Stock or the rights of holders of
Growth PRIDES to substitute Preferred Stock for the Pledged Treasury
Securities) or otherwise adversely affect the Holder's rights in or to
such Collateral or adversely alter the rights in or to such Collateral;
(3) impair the right to institute suit for the enforcement of
any Forward Purchase Contract, any Contract Adjustment Payments or any
deferred Contract Adjustment Payments;
(4) change the place or currency of payment for any amounts
payable in respect of the Securities, reduce the number of shares of
Common Stock or the amount of any other property to be purchased
pursuant to any Forward Purchase Contract, increase the price to
purchase shares of Common Stock upon settlement of any Forward Purchase
Contract or change the Forward Purchase Contract Settlement Date or the
right to Early Settlement following a Cash Merger or otherwise
adversely affect the Holder's rights under any Forward Purchase
Contract;
(5) reduce any Contract Adjustment Payments or deferred
Contract Adjustment Payments or change any place where, or the coin or
currency in which, any Contract Adjustment Payment is payable; or
(6) reduce the percentage of the Outstanding Securities the
consent of whose Holders is required for any modification or amendment
to the provisions of this Agreement, any supplemental agreements, the
Forward Purchase Contracts or the Pledge Agreement;
provided, that if any amendment or proposal referred to above would adversely
affect only the Income PRIDES or the Growth PRIDES, then only the affected class
of Holders 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
71
consent of the Holders of each Outstanding Security of such class affected
thereby shall be required to approve any amendment or proposal specified in
clauses (1) through (6) above.
(b) It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental agreement, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 8.3. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Agent shall be provided, and
(subject to Section 7.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental agreement is authorized or permitted by this Agreement and that any
and all conditions precedent to the execution and delivery of such supplemental
agreement have been satisfied. The Agent may, but shall not be obligated to,
enter into any such supplemental agreement which affects the Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 8.4. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Certificates theretofore or thereafter authenticated, executed on behalf of
the Holders and delivered hereunder, shall be bound thereby.
Section 8.5. Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Agent, bear a notation in form
approved by the Agent as to any matter provided for in such supplemental
agreement. If the Co-Issuers shall so determine, new Certificates so modified as
to conform, in the opinion of the Agent and the Co-Issuers, to any such
supplemental agreement may be prepared and executed by the Co-Issuers and
authenticated, executed on behalf of the Holders and delivered by the Agent in
exchange for outstanding Certificates.
ARTICLE IX
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 9.1. Covenant Not to Consolidate, Merge, Convey, Transfer or Lease
Property Except under Certain Conditions.
Each of the Co-Issuers covenants that it will not (1) consolidate with
or merge into any other entity or (2) sell, assign, transfer, lease or convey
all or substantially all of its properties and assets to any Person other than,
with respect to clause (2), a direct or indirect wholly-owned subsidiary of the
Company, unless:
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(i) either such Co-Issuer shall be the continuing corporation,
or the successor (if other than such Co-Issuer) 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 such Co-Issuer under this
Agreement, the Forward Purchase Contracts, the Pledge Agreement and the
Remarketing Agreement by one or more supplemental agreements in form
reasonably satisfactory to the Agent and the Collateral Agent, executed
and delivered to the Agent and the Collateral Agent by such
corporation; and
(ii) such Co-Issuer or such successor corporation, as the case
may be, shall not, immediately after such merger or consolidation,
merger, sale, assignment, transfer, lease or conveyance, be in default
of its payment obligations under this Agreement, the Forward Purchase
Contracts, the Pledge Agreement or the Remarketing Agreement or in
material default in the performance of any covenant or condition under
such agreements or under the Securities.
Section 9.2. Rights and Duties of Successor Corporation.
(a) In case of any such consolidation, merger, 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 applicable Co-Issuer with the same effect
as if it had been named herein as the applicable Co-Issuer. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of Provident Financial Group, Inc., PFGI Capital Corporation
or The Provident Bank, as the case may be, any or all of the Certificates
evidencing Securities issuable hereunder which theretofore shall not have been
signed by the applicable Co-Issuer and delivered to the Agent; and, upon the
order of such successor corporation, instead of such Co-Issuer, and subject to
all the terms, conditions and limitations in this Agreement prescribed, the
Agent shall authenticate and execute on behalf of the Holders and deliver any
Certificates which previously shall have been signed and delivered by the
officers of the applicable Co-Issuer to the Agent for authentication and
execution, and any Certificate evidencing Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Agent for
that purpose. All the Certificates so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Certificates theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Certificates had been issued at the date of the execution hereof.
(b) In case of any such consolidation, merger, 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 the Agent.
The Agent, subject to Sections 7.1 and 7.3, shall receive an Officers'
Certificate and Opinion of Counsel as conclusive evidence that any such
consolidation, merger, 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 consolidation, merger,
sale, assignment, transfer, lease or conveyance have been met.
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ARTICLE X
COVENANTS
Section 10.1. Performance under Forward 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 Forward Purchase Contracts in accordance with the terms of
the Forward Purchase Contracts and this Agreement.
Section 10.2. Maintenance of Office or Agency.
(a) The Co-Issuers will maintain in the Borough of Manhattan, The City
of New York an office or agency where Certificates may be presented or
surrendered for acquisition of Common Stock upon settlement of the Forward
Purchase Contracts on the Forward Purchase Contract Settlement Date or Early
Settlement and for transfer of Collateral upon occurrence of a Termination
Event, where Certificates may be surrendered for registration of transfer or
exchange, for a Collateral Substitution or reestablishment of an Income PRIDES
and where notices and demands to or upon the Co-Issuers in respect of the
Securities and this Agreement may be served. The Co-Issuers will give prompt
written notice to the Agent of the location, and any change in the location, of
such office or agency. The Co-Issuers initially designate the principal
corporate trust office of the Agent in the Borough of Manhattan, The City of New
York, as such office of the Co-Issuers. If at any time the Co-Issuers shall fail
to maintain any such required office or agency or shall fail to furnish the
Agent with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office or at the Agent's
principal corporate trust office in The City of New York, and each of the
Co-Issuers hereby appoints the Agent as its agent to receive all such
presentations, surrenders, notices and demands.
(b) The Co-Issuers 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 Co-Issuers of their obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes. The Co-Issuers
will give prompt written notice to the Agent of any such designation or
rescission and of any change in the location of any such other office or agency.
The Co-Issuers hereby designate as the place of payment for the Securities the
Corporate Trust Office and appoints the Agent, acting through its principal
corporate trust office in The City of New York as paying agent in such city.
Section 10.3. Company to Reserve Common Stock.
The Company shall at all times prior to the Forward 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 Forward Purchase
Contracts constituting a part of the Securities evidenced by Outstanding
Certificates.
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Section 10.4. Covenants as to Common Stock.
The Company covenants that all Common Stock which may be issued against
tender of payment in respect of any Forward 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 Co-Issuers as to Default.
The Co-Issuers shall deliver to the Agent, within 120 days after the
end of each fiscal year of the Co-Issuers (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 each of the Co-Issuers), stating
whether or not to the knowledge of the signers thereof the applicable Co-Issuer
is in default in the performance and observance of any of the terms, provisions
and conditions hereof, and if the Co-Issuers shall be in default, specifying all
such defaults and the nature and status thereof of which they may have
knowledge.
Section 10.6. ERISA.
Any Holder of the Securities or any interest in the Securities will be
deemed to have represented by its purchase and holding of such Securities that
either (i) it is not a Plan and is not purchasing the Securities or an interest
in the Securities on behalf of or with "plan assets" of any Plan, or (ii) its
purchase, holding and disposition of the Securities or interest in the
Securities (and any transactions involving the components comprising the
Securities) will not result in a non-exempt prohibited transaction under ERISA
or the Code or a violation of any Similar Laws.
Section 10.7. Tax Treatment.
The Co-Issuers covenant and agree to treat each Holder as the owner,
for United States federal income tax purposes, of the applicable interest in the
Collateral Account, including the Preferred Stock and Applicable Ownership
Interest of the Treasury Portfolio or the Treasury Securities.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
PROVIDENT FINANCIAL GROUP, INC.
By:____________________________
Name:
Title:
THE PROVIDENT BANK
By:____________________________
Name:
Title:
PFGI CAPITAL CORPORATION
By:____________________________
Name:
Title:
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, not individually but
solely as Forward Purchase Contract
Agent and as attorney-in-fact for the
Holders of Forward Purchase Contracts
By: ________________________________
Name:
Title:
76
EXHIBIT A
(FORM OF FACE OF INCOME PRIDES CERTIFICATE)
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
FORWARD PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF CEDE & CO., AS THE NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION (THE "DEPOSITARY"), THE DEPOSITARY OR ANOTHER 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 FORWARD 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.
ANY HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE OR ANY
INTEREST IN THE SECURITIES WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE
AND HOLDING OF SUCH SECURITIES THAT EITHER (i) IT IS NOT A PLAN AND IS NOT
PURCHASING THE SECURITIES OR AN INTEREST IN THE SECURITIES ON BEHALF OF OR WITH
"PLAN ASSETS" OF ANY PLAN, OR (ii) ITS PURCHASE, HOLDING AND DISPOSITION OF THE
SECURITIES OR INTEREST IN THE SECURITIES (AND ANY TRANSACTIONS INVOLVING THE
COMPONENTS COMPRISING THE SECURITIES) WILL NOT RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER ERISA OR THE CODE OR A VIOLATION OF ANY SIMILAR LAWS (AS ALL
TERMS ARE DEFINED IN THE FORWARD PURCHASE CONTRACT AGREEMENT).
X-0
Xx. XXXXX Xx. 00000X 20 5
Number of Income PRIDES:
Income PRIDES Certificate
This Income PRIDES Certificate certifies that Cede & Co is the
registered Holder of the number of Income PRIDES set forth above (as the same
may be adjusted for the books and records of the Securities Registrar and the
Depositary). Each Income PRIDES represents (i) either (a) beneficial ownership
by the Holder of one share of [ ]% Series A non-cumulative Preferred Stock with
a Liquidation Preference of $25 (the "REIT Preferred Stock") of PFGI Capital
Corporation, a corporation organized under the laws of the State of Maryland
(the "REIT"), subject to the Pledge of such Preferred Stock by such Holder
pursuant to the Pledge Agreement, (b) following an Automatic Exchange, one share
of [ ]% Series A Preferred Stock of The Provident Bank (the "Bank Preferred
Stock"), subject to the Pledge of such Preferred Stock by such Holder pursuant
to the Pledge Agreement, or (c) upon the occurrence of a Special Event
Redemption prior to the Forward Purchase Contract Settlement Date, the
appropriate Applicable Ownership Interest of the Treasury Portfolio, subject to
the Pledge of such Applicable Ownership Interest by such Holder pursuant to the
Pledge Agreement, and (ii) the rights and obligations of the Holder under one
Forward Purchase Contract with Provident Financial Group, Inc., an Ohio
corporation (the "Company"). The REIT Preferred Stock, or, upon the occurrence
of an Automatic Exchange, the Bank Preferred Stock, is herein referred to as the
"Preferred Stock" All capitalized terms used herein which are defined in the
Forward Purchase Contract Agreement (as defined on the reverse hereof) have the
meaning set forth therein.
Pursuant to the Pledge Agreement, the Preferred Stock or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the case
may be, constituting part of each Income PRIDES evidenced hereby have been
pledged to the Collateral Agent, for the benefit of the Company, to secure the
obligations of the Holder under the Forward Purchase Contract comprising a
portion of such Income PRIDES.
The Pledge Agreement provides that all payments of Dividends with
respect to any pledged Preferred Stock, or cash distributions on the appropriate
Applicable Ownership Interest (as specified in clause (B) of the definition of
such term) of the Treasury Portfolio, as the case may be, or payments of the
Liquidation Preference on the pledged Preferred Stock or payments on the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be,
constituting part of the Income PRIDES received by the Collateral Agent shall be
paid by the Collateral Agent by wire transfer in same day funds (i) in the case
of (A) Dividends with respect to pledged Preferred Stock, or cash distributions
with respect to the appropriate Applicable Ownership Interest (as specified in
clause (B) of the definition of such term) of the Treasury Portfolio, or (B) any
Liquidation Preference on the pledged Preferred Stock or any amount with respect
to the appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio, as the case may be, that
have been released from the Pledge pursuant to the Pledge Agreement, to the
Agent to the account designated by the Agent, no later than 2:00 p.m., New York
City time, on the Business Day such payment is received by the Collateral Agent
A-2
(provided, that in the event such payment is received by the Collateral Agent on
a day that is not a Business Day or after 12:30 p.m., New York City time, on a
Business Day, then such payment shall be made no later than 10:30 a.m., New York
City time, on the next succeeding Business Day) and (ii) in the case of payment
of the Liquidation Preference with respect to the pledged Preferred Stock or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be, that has
not been released from the Pledge in accordance with the terms of the Pledge
Agreement, in full satisfaction of the respective obligations of the Holders of
the Income PRIDES of which such pledged Preferred Stock or the Applicable
Ownership Interest (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio, as the case may be, are a part under the Forward
Purchase Contracts forming a part of such Income PRIDES. Dividends on any
Preferred Stock and distributions on the appropriate Applicable Ownership
Interest (as specified in clause (B) of the definition of such term) of the
Treasury Portfolio, as the case may be, forming part of an Income PRIDES
evidenced hereby, which are payable quarterly in arrears on February 17, May 17,
August 17 and November 17, each year, commencing November 17, 2002 (a "Payment
Date"), shall, subject to receipt thereof from the Collateral Agent, be paid to
the Person in whose name this Income PRIDES Certificate (or a Predecessor Income
PRIDES Certificate) is registered at the close of business on the Record Date
for such Payment Date.
Each Forward Purchase Contract evidenced hereby obligates the Holder of
this Income PRIDES Certificate to purchase, and the Company to sell, on August
17, 2005 (the "Forward Purchase Contract Settlement Date"), at a price equal to
$25 (the "Stated Amount"), a number of newly issued shares of Common Stock, no
par value ("Common Stock"), of the Company, equal to the Settlement Rate, unless
prior to or on the Forward Purchase Contract Settlement Date there shall have
occurred a Termination Event or an Early Settlement with respect to the Income
PRIDES of which such Forward Purchase Contract is a part, or as provided in the
Forward 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 Forward Purchase Contract evidenced hereby, if not
paid earlier, shall be paid on the Forward Purchase Contract Settlement Date by
application of (1) cash received from a Holder or (2) payment received in
respect of the Preferred Stock pursuant to the Remarketing or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
pledged to secure the obligations of the Holder under such Forward Purchase
Contract of the Holder of the Income PRIDES of which such Forward Purchase
Contract is a part.
Subject to the last two sentences of this paragraph, the Company shall
pay, on each Payment Date, in respect of each Forward Purchase Contract forming
part of an Income PRIDES evidenced hereby, an amount (the "Contract Adjustment
Payments") equal to [ ]% per year of the Stated Amount. Such Contract Adjustment
Payments shall be payable to the Person in whose name this Income PRIDES
Certificate is registered at the close of business on the Record Date for such
Payment Date. The Company may, at its option, defer such Contract Adjustment
Payments until no later than the Forward Purchase Contract Settlement Date (as
described in the Forward Purchase Contract Agreement) and shall pay interest on
any such deferred payments at a rate of [ ]% per annum. If the Company defers
Contract Adjustment Payments until the Forward Purchase Contract Settlement
Date, the Company has the right to elect, in lieu of a cash payment, to pay such
deferred Contract Adjustment Payment in Common Stock; provided that at
A-3
such time, if then required under U.S. federal securities laws, there is in
effect a registration statement under the Securities Act covering such Common
Stock.
Dividends on the Preferred Stock and distributions on the Applicable
Ownership Interest (as specified in clause (B) of the definition of such term)
of the Treasury Portfolio and Contract Adjustment Payments will be payable at
the Corporate Trust Office of the Agent and at the New York Office or, at the
option of the Company, by check mailed to the address of the Person entitled
thereto as such address appears on the Security Register or by wire transfer to
the account designated by a prior written notice from such Person.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Income PRIDES Certificate shall not be
entitled to any benefit under the Pledge Agreement or the Forward Purchase
Contract Agreement or be valid or obligatory for any purpose.
A-4
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
duly executed.
Dated: PROVIDENT FINANCIAL GROUP, INC.
---------------
By: _________________________________
Name:
Title:
PFGI CAPITAL CORPORATION
By: _________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Forward Purchase Contracts evidenced
hereby)
By: X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION, not
individually but solely as Forward
Purchase Contract Agent and as
attorney-in-fact for such Holder
By: ________________________________
Name:
Title:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Income PRIDES Certificates referred to in the within
mentioned Forward Purchase Contract Agreement.
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, as Forward Purchase
Contract Agent
By: ________________________________
Authorized Signatory
A-5
(FORM OF REVERSE OF INCOME PRIDES CERTIFICATE)
Each Forward Purchase Contract evidenced hereby is governed by a
forward purchase contract agreement, dated as of June 12, 2002 (as may be
supplemented from time to time, the "Forward Purchase Contract Agreement"), by
and among the Company, PFGI Capital Corporation, a corporation organized under
the laws of the State of Maryland (the "REIT"), The Provident Bank, an Ohio
state-chartered member of the Federal Reserve System (the "Bank; the Company
together with the REIT, or, upon the occurrence of a Automatic Exchange, the
Bank, the "Co-Issuers"), and X.X. Xxxxxx Trust Company, National Association, a
corporation organized and existing under the laws of the United States, as
forward purchase contract agent (including its successors thereunder, the
"Agent"), to which Forward Purchase Contract Agreement and supplemental
agreements thereto reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Agent, the Company and the Holders and of the terms upon which the Income
PRIDES Certificates are, and are to be, executed and delivered. In the case of
any inconsistency between this Certificate and the terms of the Forward Purchase
Contract Agreement, the terms of the Forward Purchase Contract Agreement shall
prevail.
Each Forward Purchase Contract evidenced hereby obligates the Holder of
this Income PRIDES Certificate to purchase, and the Company to sell, on the
Forward Purchase Contract Settlement Date at a price equal to the Stated Amount
(the "Purchase Price"), a number of newly issued shares of Common Stock of the
Company equal to the Settlement Rate, unless, prior to the Forward Purchase
Contract Settlement Date, there shall have occurred a Termination Event with
respect to the Security of which such Forward 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
greater than or equal to $[ ] (the "Threshold Appreciation Price"), [ ]
shares of Common Stock per Forward Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price but is greater than $[ ] (the "Reference Price"),
the number of shares of Common Stock per Forward Purchase Contract
having a value equal to the Stated Amount divided by the Applicable
Market Value; and
(3) if the Applicable Market Value is less than or equal to the
Reference Price, [ ] shares of Common Stock per Forward Purchase
Contract,
in each case subject to adjustment as provided in the Forward Purchase Contract
Agreement (and in each case rounded upward or downward to the nearest 1/10,000th
of a share.
No fractional shares of Common Stock will be issued upon settlement of
Forward Purchase Contracts, as provided in the Forward Purchase Contract
Agreement.
Each Forward Purchase Contract evidenced hereby, which is settled
either through Early Settlement or Cash Settlement, shall obligate the Holder of
the related Income PRIDES to
A-6
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 consecutive Trading Days ending on
the fifth Trading Day immediately preceding the Forward Purchase Contract
Settlement Date.
The "Closing Price" per share of the Common Stock on any date of
determination means the:
(1) the closing bid price (or, if no closing price is reported,
the last reported bid price) of the Common Stock on the Nasdaq National
Market System (the "Nasdaq") on such date;
(2) if the Common Stock is not quoted on the Nasdaq on any such
date, the closing sales price 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 last quoted bid price for
the Common Stock in the over-the-counter market as reported by the
National Quotation Bureau or similar organization; or
(4) if such bid price is not available, the market value of the
Common Stock on such date as of 4:00 p.m. (New York City time) as
determined by a nationally recognized independent investment banking
firm retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (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 Forward Purchase Contract
Agreement, the Holder of this Income PRIDES Certificate shall pay the Purchase
Price for the shares of Common Stock purchased pursuant to each Forward Purchase
Contract evidenced hereby by effecting a Cash Settlement or an Early Settlement
or from the proceeds of the Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio or a
Remarketing of the related pledged Preferred Stock. Unless a Special Event
Redemption has occurred, a Holder of Income PRIDES who does not (1) on or prior
to 5:00 p.m. (New York City time) on the seventh Business Day immediately
preceding the Forward Purchase Settlement Date, notify the Agent of its
intention to effect a Cash Settlement, or (2) on or prior to 10:00 a.m. (New
York City time) on the seventh Business Day prior to the Forward Purchase
Contract Settlement Date, make an effective Early Settlement, shall pay the
Purchase Price for the shares of Common Stock to be issued under the related
Forward Purchase Contract from the proceeds of the sale of the related pledged
Preferred Stock held by the Collateral Agent. Unless a Special Event Redemption
has occurred, such sale will be made by the Remarketing Agent pursuant to
A-7
the terms of the Remarketing Agreement, on the fifth Business Day immediately
preceding the Forward Purchase Contract Settlement Date. If a Special Event
Redemption has occurred, a Holder of Income PRIDES who does not notify the
Agent, on or prior to 5:00 p.m. (New York City time) on the second Business Day
immediately preceding the Forward Purchase Contract Settlement Date, of its
intention to effect a Cash Settlement or an Early Settlement, shall pay the
Purchase Price for the shares of Common Stock to be delivered under the related
Forward Purchase Contract from the proceeds at maturity of the Applicable
Ownership Interest (as defined in clause (A) of the definition of such term) of
the Treasury Portfolio.
If, as provided in the Forward Purchase Contract Agreement and the
Pledge Agreement, (i) upon the occurrence of a Failed Remarketing, or (ii) if a
Holder notifies the Agent of its intention to effect a Cash Settlement but fails
to deliver the Purchase Price in cash on or prior to the Business Day
immediately preceding the Forward Purchase Contract Settlement Date, the
Collateral Agent for the benefit of the Company shall exercise its rights as a
secured party with respect to the pledged Preferred Stock related to this Income
PRIDES Certificate in full satisfaction of the Holders' obligations under the
Forward Purchase Contract Agreement to pay the Purchase Price for the Common
Stock.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Forward 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 Forward 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 Agent and to the Holders, at their addresses as they
appear in the Security Register. Upon and after the occurrence of a Termination
Event, the Collateral Agent shall release the pledged Preferred Stock or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio forming a part of each Income
PRIDES from the pledge. An Income PRIDES shall thereafter represent the right to
receive the Preferred Stock or the appropriate Applicable Ownership Interest of
the Treasury Portfolio forming a part of such Income PRIDES in accordance with
the terms of the Forward Purchase Contract Agreement and the Pledge Agreement.
Under the terms of the Pledge Agreement, the Agent will be entitled to
exercise the voting and any other consensual rights pertaining to the pledged
Preferred Stock. Upon receipt of notice of any meeting at which Holders of
Preferred Stock are entitled to vote or upon the solicitation of consents,
waivers or proxies of holders of Preferred Stock, the Agent shall, as soon as
practicable thereafter, mail to the Income PRIDES holders a notice:
(a) containing such information as is contained in the notice
or solicitation;
(b) stating that each Income PRIDES holder on the Record Date
set by the Agent therefor (which, to the extent possible, shall be the
same date as the Record Date for determining the holders of Preferred
Stock entitled to vote) shall be entitled to instruct the Agent as to
the exercise of the voting rights pertaining to the Preferred Stock
constituting a part of such Holder's Income PRIDES; and
A-8
(c) stating the manner in which such instructions may be given.
Upon the written request of the Income PRIDES Holders on such Record
Date, the Agent shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of Preferred Stock as to which any particular voting instructions
are received. In the absence of specific instructions from the Holder of an
Income PRIDES, the Agent shall abstain from voting the Preferred Stock evidenced
by such Income PRIDES.
Subject to Section 4.3 of the Forward Purchase Contract Agreement, upon
the occurrence of a Special Event Redemption prior to the Forward Purchase
Contract Settlement Date, pursuant to the terms of the Pledge Agreement, the
Collateral Agent shall apply, out of the aggregate Redemption Price, an amount
equal to the Redemption Amount for the Preferred Stock that are components of
Income PRIDES to purchase on behalf of the Holders of Income PRIDES, the
Treasury Portfolio and promptly (a) transfer the Applicable Ownership Interest
of the Treasury Portfolio to the Collateral Account to secure the obligations of
each Holder of Income PRIDES to purchase shares of Common Stock under the
Forward Purchase Contracts constituting a part of such Income PRIDES and (b)
remit the remaining portion of such funds to the Agent for payment to the
Holders of such Income PRIDES.
Following the occurrence of a Special Event Redemption prior to the
Forward Purchase Contract Settlement Date, the Holders of Income PRIDES and the
Collateral Agent shall have such security interest, rights and obligations with
respect to the Applicable Ownership Interest of the Treasury Portfolio as the
Holder of Income PRIDES and the Collateral Agent had in respect of the Preferred
Stock, as the case may be, subject to the Pledge thereof as provided in the
Pledge Agreement and any reference herein to the Preferred Stock shall be deemed
to be a reference to such Treasury Portfolio.
Upon the occurrence of a Successful Remarketing, pursuant to the terms
of the Remarketing Agreement, the Remarketing Agent will apply an amount equal
to the aggregate Liquidation Preference of the Preferred Stock to satisfy the
Holders' obligation to purchase Common Stock, and, after deducting the
Remarketing Fee to the extent permitted under the terms of the Remarketing
Agreement, promptly remit the remaining portion of such proceeds of the
Successful Remarketing to the Agent for payment to the Holders of such Income
PRIDES.
The Income PRIDES Certificates are issuable only in registered form and
only in denominations of a single Income PRIDES and any integral multiple
thereof. The transfer of any Income PRIDES Certificate will be registered and
Income PRIDES Certificates may be exchanged as provided in the Forward Purchase
Contract Agreement. The Security Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents permitted by
the Forward Purchase Contract Agreement. No service charge shall be required for
any such registration of transfer or exchange, but the Company and the 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
Treasury Securities for Preferred Stock or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, thereby creating Growth PRIDES, shall be
responsible for any fees or expenses associated therewith. Except as provided in
the Forward Purchase Contract Agreement, for so long as the Forward Purchase
A-9
Contract underlying an Income PRIDES remains in effect, such Income PRIDES shall
not be separable into its constituent parts, and the rights and obligations of
the Holder of such Income PRIDES in respect of the Preferred Stock or the
Applicable Ownership Interest of the Treasury Portfolio, as the case may be and
the Forward Purchase Contract constituting such Income PRIDES may be transferred
and exchanged only as an Income PRIDES.
A Holder of an Income PRIDES may create a Growth PRIDES by delivering
to the Collateral Agent Treasury Securities in an aggregate principal amount at
maturity equal to the aggregate Liquidation Preference of the pledged Preferred
Stock or the appropriate Applicable Ownership Interest (as specified in clause
(A) of the definition of such term) of the Treasury Portfolio, as the case may
be, in exchange for the release of such pledged Preferred Stock or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the case
may be, in accordance with the terms of the Forward Purchase Contract Agreement
and the Pledge Agreement. From and after such Collateral Substitution, each
Security for which such pledged Treasury Securities secures the Holder's
obligation under the Forward Purchase Contract shall be referred to as a "Growth
PRIDES." A Holder may make such Collateral Substitution only in integral
multiples of 40 Income PRIDES for 40 Growth PRIDES. If the Treasury Portfolio
has replaced the Preferred Stock as a component of the Income PRIDES as a result
of a Special Event Redemption, a Holder of Income PRIDES may make such
Collateral Substitutions only in integral multiples of [ ] Income PRIDES. Such
Collateral Substitution may cause the Stated Amount of this Certificate to be
increased or decreased; provided, however, the equivalent aggregate Stated
Amount outstanding under this Income PRIDES Certificate shall not exceed
$400,000,000.
A Holder of Growth PRIDES may recreate Income PRIDES in accordance with
the terms of the Forward Purchase Contract Agreement and the Pledge Agreement by
delivering to the Collateral Agent Preferred Stock with an aggregate Liquidation
Preference equal to the Stated Amount of the related Growth PRIDES in exchange
for the release of such pledged Treasury Securities. Any such recreation of an
Income PRIDES may be effected only in multiples of 40 Growth PRIDES for 40
Income PRIDES. If the Treasury Portfolio has replaced the Preferred Stock as a
component of the Income PRIDES as a result of a Special Event Redemption, a
Holder of Growth PRIDES may recreate Income PRIDES in accordance with the terms
of the Forward Purchase Contract Agreement and the Pledge Agreement by
delivering to the Collateral Agent the appropriate Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the Treasury
Portfolio 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. Any such recreation of an Income
PRIDES may be effected only in integral multiples of [ ] Growth PRIDES.
Subject to the next following paragraph, the Company shall pay, on each
Payment Date, the Contract Adjustment Payments payable in respect of each
Forward Purchase Contract to the Person in whose name the Income PRIDES
Certificate evidencing such Forward 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 Agent in New York City 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 Security Register.
A-10
The Company has the right to defer payment of all or part of the
Contract Adjustment Payments in respect of each Forward Purchase Contract until
no later than the Forward Purchase Contract Settlement Date. If the Company so
elects to defer Contract Adjustment Payments, the Company shall pay additional
Contract Adjustment Payments on such deferred installments of Contract
Adjustment Payments at a rate equal to [ ]% per annum, compounding quarterly,
until such deferred installments are paid. In the event that the Company elects
to defer the payment of Contract Adjustment Payments on the Forward Purchase
Contracts until the Forward Purchase Contract Settlement Date, each Holder will
receive on the Forward Purchase Contract Settlement Date the aggregate amount of
accrued and unpaid Contract Adjustment Payments. If the Company defers Contract
Adjustment Payments until the Forward Purchase Contract Settlement Date, the
Company has the right to elect, in lieu of a cash payment, to pay such deferred
Contract Adjustment Payment in Common Stock; provided that at such time, if then
required under U.S. federal securities laws, there is in effect a registration
statement under the Securities Act covering such Common Stock.
The Forward 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 any Contract
Adjustment Payments, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Agent or the Company, if,
on or prior to the Forward 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 Agent, the Collateral Agent and to the Holders, at
their addresses as they appear in the Security Register. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Preferred Stock or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, from the Pledge in accordance with the provisions
of the Pledge Agreement.
Upon the occurrence of a Cash Merger, a Holder of Income PRIDES may
effect Early Settlement of the Forward Purchase Contract underlying such Income
PRIDES pursuant to the terms of Section 5.9 of the Forward Purchase Contract
Agreement. In addition, a Holder of Income PRIDES may effect Early Settlement of
the Forward Purchase Contract underlying such Income PRIDES pursuant to the
terms of Section 5.8 of the Forward Purchase Contract Agreement. Upon Early
Settlement of Forward Purchase Contracts by a Holder of the related Income
PRIDES, the pledged Preferred Stock or pledged Applicable Ownership Interests of
the Treasury Portfolio underlying such Income PRIDES shall be released from the
pledge as provided in the Pledge Agreement.
Upon registration of transfer of this Income PRIDES Certificate the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Forward Purchase Contract Agreement) under the terms of the Forward Purchase
Contract Agreement, the Pledge Agreement and the Forward Purchase Contracts
evidenced hereby and the transferor shall be released from the obligations under
the Forward Purchase Contract Agreement, the Pledge Agreement and the Forward
Purchase Contracts evidenced by this Income PRIDES 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.
A-11
The Holder of this Income PRIDES Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Forward Purchase
Contracts forming part of the Income PRIDES evidenced hereby on its behalf as
its attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Forward 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 Forward Purchase Contracts,
consents to the provisions of the Forward Purchase Contract Agreement,
authorizes the Agent to enter into and perform the Forward Purchase Contract
Agreement and the Pledge Agreement on its behalf as its attorney-in-fact, and
consents to the Pledge of the Preferred Stock or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, underlying
this Income PRIDES Certificate pursuant to the Pledge Agreement. The Holder
further covenants and agrees, that, to the extent and in the manner provided in
the Forward Purchase Contract Agreement and the Pledge Agreement, but subject to
the terms thereof, payments in respect of the pledged Preferred Stock or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the case
may be, on the Forward Purchase Contract Settlement Date shall be paid by the
Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Forward Purchase Contract and such Holder shall acquire no right,
title or interest in such payments.
Subject to certain exceptions, the provisions of the Forward Purchase
Contract Agreement may be amended with the consent of the Holders of a majority
of the Forward Purchase Contracts.
The Forward Purchase Contracts shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York, without
regard to conflicts of laws principles thereof.
Prior to due presentment of this Certificate for registration or
transfer, the Company, the Agent and its Affiliates and any agent of the Company
or the Agent may treat the Person in whose name this Income PRIDES Certificate
is registered as the owner of the Income PRIDES evidenced hereby for the purpose
of receiving payments of Dividends on the Preferred Stock, receiving payments of
Contract Adjustment Payments (subject to any applicable Record Date),
performance of the Forward Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the Agent
nor any such agent shall be affected by notice to the contrary.
The Forward Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of Common
Stock. A copy of the Forward Purchase Contract Agreement is available for
inspection at the offices of the Agent.
A-12
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
____________________
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
---------------------------
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 Income PRIDES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing _______________________________________
attorney to transfer said Income PRIDES Certificates on the books of Provident
Financial Group, 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 Income PRIDES
Certificates in every particular, without
alteration or enlargement or any change
whatsoever.
Signature Guarantee: ________________________
A-13
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for Common Stock deliverable
upon settlement on or after the Forward Purchase Contract Settlement Date of the
Forward Purchase Contracts underlying the number of Income PRIDES evidenced by
this Income PRIDES 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 and delivered to REGISTERED HOLDER
a Person other than the Holder,
please (i) print such Person's
name and address and (ii) provide Please print name and address of
a guarantee of your signature and Registered Holder:
address of Registered Holder:
---------------------------- ------------------------------------
Name Name
---------------------------- ------------------------------------
Address Address
---------------------------- ------------------------------------
---------------------------- ------------------------------------
---------------------------- ------------------------------------
Social Security or other
Taxpayer Identification
Number, if any ____________________________________
A-14
ELECTION TO SETTLE EARLY
The undersigned Holder of this Income PRIDES Certificate hereby
irrevocably exercises the option to effect Early Settlement [following a Cash
Merger] in accordance with the terms of the Forward Purchase Contract Agreement
with respect to the Forward Purchase Contracts underlying the number of Income
PRIDES evidenced by this Income PRIDES Certificate specified below. The
undersigned Holder directs that a certificate for 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 Income PRIDES Certificate
representing any Income PRIDES evidenced hereby as to which Early Settlement of
the related Forward Purchase Contracts is not effected, to the undersigned at
the address indicated below unless a different name and address have been
indicated below. Pledged Preferred Stock or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, 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-15
Number of Securities evidenced hereby as to which Early Settlement of
the related Forward Purchase Contracts is being elected:
If Common Stock or Income PRIDES REGISTERED HOLDER
Certificates are to be registered in the
name of and delivered to and
Pledged Preferred Stock are to be
transferred to a Person other than the Please print name and address of
Registered Holder: Holder, please print such Person's name and address:
---------------------------- ------------------------------------
Name Name
---------------------------- ------------------------------------
Address Address
---------------------------- ------------------------------------
---------------------------- ------------------------------------
---------------------------- ------------------------------------
Social Security or other
Taxpayer Identification
Number, if any ____________________________________
Transfer Instructions for Pledged Preferred Stock or the Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, transferable upon Early
Settlement or a Termination Event:
----------------------------------
----------------------------------
-----------------------------------
A-16
EXHIBIT B
(FORM OF FACE OF GROWTH PRIDES CERTIFICATE)
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
FORWARD PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (THE "DEPOSITARY"), THE DEPOSITARY OR ANOTHER 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 FORWARD 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.
ANY HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE WILL BE
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING OF SUCH SECURITIES THAT
EITHER (i) IT IS NOT A PLAN AND IS NOT PURCHASING THE SECURITIES OR AN INTEREST
IN THE SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN, OR (ii) ITS
PURCHASE, HOLDING AND DISPOSITION OF THE SECURITIES OR INTEREST IN THE
SECURITIES (AND ANY TRANSACTIONS INVOLVING THE COMPONENTS COMPRISING THE
SECURITIES) WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA
OR THE CODE OR A VIOLATION OF ANY SIMILAR LAWS (AS ALL TERMS ARE DEFINED IN THE
FORWARD PURCHASE CONTRACT AGREEMENT).
X-0
Xx. XXXXX Xx. 00000X 30 4
Number of Growth PRIDES:
Growth PRIDES Certificate
This Growth PRIDES Certificate certifies that Cede & Co. is the
registered Holder of the number of Growth PRIDES set forth above (as the same
may be adjusted for the books and records of the Securities Registrar and the
Depositary). Each Growth PRIDES represents (i) a 1/40th undivided beneficial
ownership interest in a Treasury Security having a principal amount at maturity
equal to $1,000, subject to the Pledge of such Treasury Security by such Holder
pursuant to the Pledge Agreement, and (ii) the rights and obligations of the
Holder under one Forward Purchase Contract with Provident Financial Group, Inc.,
an Ohio corporation (the "Company"). All capitalized terms used herein which are
defined in the Forward 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 Growth PRIDES evidenced hereby have been pledged to the Collateral
Agent, for the benefit of the Company, to secure the obligations of the Holder
under the Forward Purchase Contract comprising a portion of such Growth PRIDES.
The Pledge Agreement provides that all payments of the principal of any
Treasury Securities received by the Collateral Agent shall be paid by the
Collateral Agent by wire transfer in same day funds (i) in the case of any
principal payments with respect to any Treasury Securities that have been
released from the Pledge pursuant to the Pledge Agreement, to the Holders of the
applicable Growth PRIDES to the accounts designated by them in writing for such
purpose no later than 2:00 p.m., New York City time, on the Business Day such
payment is received by the Collateral Agent (provided, that in the event such
payment is received by the Collateral Agent on a day that is not a Business Day
or after 12:30 p.m., New York City time, on a Business Day, then such payment
shall be made no later than 10:30 a.m., New York City time, on the next
succeeding Business Day), and (ii) in the case of the principal of any pledged
Treasury Securities that has not been released from the Pledge in accordance
with the terms of the Pledge Agreement, in full satisfaction of the respective
obligations of the Holders of the Growth PRIDES of which such pledged Treasury
Securities are a part under the Forward Purchase Contracts forming a part of
such Growth PRIDES.
Each Forward Purchase Contract evidenced hereby obligates the Holder of
this Growth PRIDES Certificate to purchase, and the Company, to sell, on August
17, 2005 (the "Forward Purchase Contract Settlement Date"), at a price equal to
$25 (the "Stated Amount"), a number of newly issued shares of Common Stock, no
par value ("Common Stock"), of the Company equal to the Settlement Rate, unless
prior to or on the Forward Purchase Contract Settlement Date there shall have
occurred a Termination Event or an Early Settlement with respect to the Growth
PRIDES of which such Forward Purchase Contract is a part, or as provided in the
Forward 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 Forward Purchase Contract evidenced hereby, if not
paid earlier, shall be paid on the Forward Purchase Contract Settlement Date by
application of the Proceeds from the Treasury Securities
B-2
pledged to secure the obligations under such Forward Purchase Contract in
accordance with the terms of the Pledge Agreement of the Growth PRIDES of which
such Forward Purchase Contract is a part.
Subject to the last two sentences of this paragraph, the Company shall
pay, on each Payment Date, in respect of each Forward Purchase Contract forming
part of a Growth PRIDES evidenced hereby, an amount (the "Contract Adjustment
Payments") equal to [ ]% per year of the Stated Amount. Such Contract Adjustment
Payments shall be payable to the Person in whose name this Growth PRIDES
Certificate is registered at the close of business on the Record Date for such
Payment Date. The Company may, at its option, defer such Contract Adjustment
Payments until no later than the Forward Purchase Contract Settlement Date (as
described in the Forward Purchase Contract Agreement) and shall pay interest on
any such deferred payments at a rate of [ ]% per annum. If the Company defers
Contract Adjustment Payments until the Forward Purchase Contract Settlement
Date, the Company has the right to elect, in lieu of a cash payment, to pay such
deferred Contract Adjustment Payment in Common Stock; provided that at such
time, if then required under U.S. federal securities laws, there is in effect a
registration statement under the Securities Act covering such Common Stock.
The Contract Adjustment Payments will be payable at the office of the
Agent in New York City or, at the option of the Company, by check mailed to the
address of the Person entitled thereto as such address appears on the Security
Register or by wire transfer to the account designated by a prior written notice
from such Person.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Growth PRIDES Certificate shall not be
entitled to any benefit under the Pledge Agreement or the Forward Purchase
Contract Agreement or be valid or obligatory for any purpose.
B-3
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
duly executed.
Dated: PROVIDENT FINANCIAL GROUP, INC.
---------------
By: _________________________________
Name:
Title:
PFGI CAPITAL CORPORATION
By: _________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as
to obligations of such
Holder under the Forward
Purchase Contracts
evidenced hereby)
By: X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION, not individually
but solely as Forward Purchase
Contract Agent and as attorney-in-fact
for such Holder
By: ________________________________
Name:
Title:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Growth PRIDES Certificates referred to in the within
mentioned Forward Purchase Contract Agreement.
By: X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION, as Forward
Purchase Contract Agent
By: _________________________________
Authorized Signatory
B-4
(FORM OF REVERSE OF GROWTH PRIDES CERTIFICATE)
Each Forward Purchase Contract evidenced hereby is governed by a
forward purchase contract agreement, dated as of June 12, 2002 (as may be
supplemented from time to time, the "Forward Purchase Contract Agreement"), by
and among the Company, PFGI Capital Corporation, a corporation organized under
the laws of the State of Maryland (the "REIT"), The Provident Bank, an Ohio
state-chartered member of the Federal Reserve System (the "Bank," the Company
together with the REIT, or, upon the occurrence of an Automatic Exchange, the
Bank, the "Co-Issuers"), and X.X. Xxxxxx Trust Company, National Association, a
corporation organized and existing under the laws of the United States, as
forward purchase contract agent (including its successors thereunder, herein
called the "Agent"), to which the Forward Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Agent, the Company and the Holders and of the terms upon which
the Growth PRIDES Certificates are, and are to be, executed and delivered. In
the case of any inconsistency between this Certificate and the terms of the
Forward Purchase Contract Agreement, the terms of the Forward Purchase Contract
Agreement shall prevail.
Each Forward Purchase Contract evidenced hereby obligates the Holder of
this Growth PRIDES Certificate to purchase, and the Company to sell, on the
Forward Purchase Contract Settlement Date at a price equal to the Stated Amount
(the "Purchase Price") a number of newly issued shares of Common Stock of the
Company equal to the Settlement Rate, unless, prior to the Forward Purchase
Contract Settlement Date, there shall have occurred a Termination Event with
respect to the Security of which such Forward 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
greater than or equal to $[ ] (the "Threshold Appreciation Price"), [ ]
shares of Common Stock per Forward Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold
Appreciation Price but is greater than $[ ] (the "Reference Price"),
the number of shares of Common Stock per Forward Purchase Contract
having a value equal to the Stated Amount divided by the Applicable
Market Value; and
(3) if the Applicable Market Value is less than or equal to the
Reference Price, [ ] shares of Common Stock per Forward Purchase
Contract,
in each case subject to adjustment as provided in the Forward Purchase Contract
Agreement (and in each case rounded upward or downward to the nearest 1/10,000th
of a share).
No fractional shares of Common Stock will be issued upon settlement of
Forward Purchase Contracts, as provided in the Forward Purchase Contract
Agreement.
Each Forward Purchase Contract evidenced hereby, which is settled
either through Early Settlement or Cash Settlement, shall obligate the Holder of
the related Growth PRIDES to
B-5
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 consecutive Trading Days ending on
the fifth Trading Day immediately preceding the Forward Purchase Contract
Settlement Date.
The "Closing Price" per share of the Common Stock on any date of
determination means the:
(1) the closing bid price (or, if no closing price is
reported, the last reported bid price) of the Common Stock on the
Nasdaq National Market System (the "Nasdaq") on such date;
(2) if the Common Stock is not quoted on the Nasdaq on any
such date, the closing sales price 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 last quoted bid price for
the Common Stock in the over-the-counter market as reported by the
National Quotation Bureau or similar organization; or
(4) if such bid price is not available, the market value of
the Common Stock on such date as of 4:00 p.m. (New York City time) as
determined by a nationally recognized independent investment banking
firm retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (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 Forward Purchase Contract
Agreement, the Holder of this Growth PRIDES Certificate shall pay the Purchase
Price for the shares of Common Stock purchased pursuant to each Forward Purchase
Contract evidenced hereby by either effecting a Cash Settlement or an Early
Settlement of each such Forward Purchase Contract or by applying a principal
amount of the pledged Treasury Securities underlying such Holder's Growth PRIDES
equal to the Stated Amount of such Forward Purchase Contract to the purchase of
the Common Stock. A Holder of Growth PRIDES who does not, (1) on or prior to
5:00 p.m. (New York City time) on the second Business Day immediately preceding
the Forward Purchase Contract Settlement Date, notify the Agent of its intention
to effect a Cash Settlement, (2) on or prior to 10:00 a.m. (New York City time)
on the second Business Day immediately preceding the Forward Purchase Contract
Settlement Date, make an effective Early Settlement or (3) deliver the Purchase
Price in cash on the Business Day immediately preceding the Forward Purchase
Contract Settlement Date after notifying the Agent of its intention to effect a
Cash Xxxxxxxxxx,
X-0
shall pay the Purchase Price for the shares of Common Stock to be issued under
the related Forward 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 Forward 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 Forward 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 Agent and to the Holders, at their addresses as they
appear in the Security Register. Upon and 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 Growth PRIDES. A Growth
PRIDES shall thereafter represent the right to receive the proceeds of the
Treasury Security forming a part of such Growth PRIDES, in accordance with the
terms of the Forward Purchase Contract Agreement and the Pledge Agreement.
The Growth PRIDES Certificates are issuable only in registered form and
only in denominations of a single Growth PRIDES and any integral multiple
thereof. The transfer of any Growth PRIDES Certificate will be registered and
Growth PRIDES Certificates may be exchanged as provided in the Forward Purchase
Contract Agreement. The Security Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents permitted by
the Forward Purchase Contract Agreement. No service charge shall be required for
any such registration of transfer or exchange, but the Company and the 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
Preferred Stock for Treasury Securities, thereby recreating Income PRIDES, shall
be responsible for any fees or expenses associated therewith. Except as provided
in the Forward Purchase Contract Agreement, for so long as the Forward Purchase
Contract underlying a Growth PRIDES remains in effect, such Growth PRIDES shall
not be separable into its constituent parts, and the rights and obligations of
the Holder of such Growth PRIDES in respect of the Treasury Security and the
Forward Purchase Contract constituting such Growth PRIDES may be transferred and
exchanged only as a Growth PRIDES.
A Holder of Growth PRIDES may recreate Income PRIDES by delivering to
the Collateral Agent shares of Preferred Stock or the Applicable Ownership
Interest of the Treasury Portfolio, with an aggregate Liquidation Preference, in
the case of such Preferred Stock, or with the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio, in the case of such appropriate Applicable Ownership
Interest of the Treasury Portfolio, 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 Forward Purchase
Contract Agreement and the Pledge Agreement. From and after such substitution,
the Holder's Security shall be referred to as an "Income PRIDES." Any such
creation of Income PRIDES may be effected only in integral multiples of 40
Growth PRIDES for 40 Income PRIDES. If the Treasury Portfolio has replaced the
Preferred Stock as a component of the Income PRIDES as a result of a Special
Event
B-7
Redemption a Growth PRIDES Holder may recreate Income PRIDES only in integral
multiples of [ ] Growth PRIDES. Such Collateral Substitution may cause the
Stated Amount of this Certificate to be increased or decreased; provided,
however, the equivalent aggregate Stated Amount outstanding under this Growth
PRIDES Certificate shall not exceed $400,000,000.
A Holder of an Income PRIDES may create a Growth PRIDES in accordance
with the terms of the Forward Purchase Contract Agreement and the Pledge
Agreement by delivering to the Collateral Agent Treasury Securities in an
aggregate principal amount at maturity equal to the aggregate Liquidation
Preference of the pledged Preferred Stock or the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio, as the case may be, in exchange for the release of
such pledged Preferred Stock or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be. Any such creation of a Growth PRIDES
may be effected only in multiples of 40 Income PRIDES for 40 Growth PRIDES. If
the Treasury Portfolio has replaced the Preferred Stock as a component of the
Income PRIDES as a result of a Special Event Redemption a Holder of Income
PRIDES may recreate Growth PRIDES in accordance with the terms of the Forward
Purchase Contract Agreement and the Pledge Agreement by delivering to the
Collateral Agent Treasury Securities in an aggregate principal amount at
maturity equal to the aggregate Liquidation Preference of the pledged Preferred
Stock or the appropriate Applicable Ownership Interest (as specified in clause
(A) of the definition of such term) of the Treasury Portfolio, as the case may
be, in exchange for the release of such pledged Preferred Stock or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the case
may be. Any such creation of a Growth PRIDES may be effected only in multiples [
] Income PRIDES.
Subject to the next following paragraph, the Company shall pay, on each
Payment Date, the Contract Adjustment Payments payable in respect of each
Forward Purchase Contract to the Person in whose name the Growth PRIDES
Certificate evidencing such Forward 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 Agent in New York City 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 Security Register.
The Company has the right to defer payment of all or part of the
Contract Adjustment Payments in respect of each Forward Purchase Contract until
no later than the Forward Purchase Contract Settlement Date. If the Company so
elects to defer Contract Adjustment Payments, the Company shall pay additional
Contract Adjustment Payments on such deferred installments of Contract
Adjustment Payments at a rate equal to [ ]% per annum, compounding quarterly,
until such deferred installments are paid. In the event that the Company elects
to defer the payment of Contract Adjustment Payments on the Forward Purchase
Contracts until the Forward Purchase Contract Settlement Date, each Holder will
receive on the Forward Purchase Contract Settlement Date the aggregate amount of
accrued and unpaid Contract Adjustment Payments. If the Company defers Contract
Adjustment Payments until the Forward Purchase Contract Settlement Date, the
Company has the right to elect, in lieu of a cash payment, to pay such deferred
Contract Adjustment Payment in Common Stock; provided that at such time, if then
required under U.S. federal securities laws, there is in effect a registration
statement under the Securities Act covering such Common Stock.
B-8
The Forward 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 any Contract
Adjustment Payments, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Agent or the Company, if,
on or prior to the Forward 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 Agent, the Collateral Agent and to the Holders, at
their addresses as they appear in the Security Register. Upon and after 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 Growth PRIDES shall thereafter represent the right to
receive distributions on the Treasury Security forming a part of such Growth
PRIDES, in accordance with the terms of the Forward Purchase Contract Agreement
and the Pledge Agreement.
Upon the occurrence of a Cash Merger, a Holder of Growth PRIDES may
effect Early Settlement of the Forward Purchase Contract underlying such Growth
PRIDES pursuant to the terms of Section 5.9 of the Forward Purchase Contract
Agreement. In addition, a Holder of Growth PRIDES may effect Early Settlement of
the Forward Purchase Contracts underlying such Growth PRIDES pursuant to the
terms of Section 5.8 of the Forward Purchase Contract Agreement. Upon Early
Settlement of the Forward Purchase Contracts by a Holder of the related Growth
PRIDES, the pledged Treasury Securities underlying such Growth PRIDES shall be
released from the Pledge as provided in the Pledge Agreement.
Upon registration of transfer of this Growth PRIDES Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Forward Purchase Contract Agreement) under the terms of the Forward Purchase
Contract Agreement, the Pledge Agreement and the Forward Purchase Contracts
evidenced hereby and the transferor shall be released from the obligations under
the Forward Purchase Contract Agreement, the Pledge Agreement and the Forward
Purchase Contracts evidenced by this Growth PRIDES 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 Growth PRIDES Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Forward Purchase
Contracts forming part of the Growth PRIDES evidenced hereby on its behalf as
its attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Forward 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 Forward Purchase Contracts,
consents to the provisions of the Forward Purchase Contract Agreement,
authorizes the Agent to enter into and perform the Forward 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 Growth PRIDES
Certificate pursuant to the Pledge Agreement. The Holder further covenants and
agrees, that, to the extent and in the manner provided in the Forward Purchase
Contract Agreement and the Pledge Agreement, but subject to the terms thereof,
payments in respect to the aggregate principal
B-9
amount of the pledged Treasury Securities on the Forward Purchase Contract
Settlement Date shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Forward Purchase Contract
and such Holder shall acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Forward Purchase
Contract Agreement may be amended with the consent of the Holders of a majority
of the Forward Purchase Contracts.
The Forward Purchase Contracts shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York, without
regard to conflicts of laws principles thereof.
Prior to due presentment of this Certificate for registration or
transfer, the Company, the Agent and its Affiliates and any agent of the Company
or the Agent may treat the Person in whose name this Growth PRIDES Certificate
is registered as the owner of the Growth PRIDES evidenced hereby for the purpose
of receiving payments of interest on the Treasury Securities, receiving payments
of Contract Adjustment Payments (subject to any applicable Record Date),
performance of the Forward Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the Agent
nor any such agent shall be affected by notice to the contrary.
The Forward Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of Common
Stock. A copy of the Forward Purchase Contract Agreement is available for
inspection at the offices of the Agent.
B-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
________________________
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
---------------------------
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 Income PRIDES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ________________________________________
attorney to transfer said Income PRIDES Certificates on the books of Provident
Financial Group, 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 Income PRIDES Certificates
in every particular, without
alteration or enlargement or any
change whatsoever.
Signature Guarantee:
---------------------------
B-11
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Forward Purchase Contract
Settlement Date of the Forward Purchase Contracts underlying the number of
Income PRIDES evidenced by this Income PRIDES 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 shares are to be registered
in the name of and delivered to REGISTERED HOLDER
a Person other than the Holder,
please print such Person's Please print name and address of
name and address: Registered Holder
---------------------------- ------------------------------------
Name Name
Address Address
---------------------------- ------------------------------------
---------------------------- ------------------------------------
---------------------------- ------------------------------------
Social Security or other
Taxpayer Identification
Number, if any ____________________________________
B-12
ELECTION TO SETTLE EARLY
The undersigned Holder of this Growth PRIDES Certificate hereby
irrevocably exercises the option to effect Early Settlement [following a Cash
Merger] in accordance with the terms of the Forward Purchase Contract Agreement
with respect to the Forward Purchase Contracts underlying the number of Growth
PRIDES evidenced by this Growth PRIDES Certificate specified below. The
undersigned Holder directs that a certificate for 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 Growth PRIDES Certificate
representing any Growth PRIDES evidenced hereby as to which Early Settlement of
the related Forward 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: _________
Dated:
Number of Securities evidenced hereby as to which Early Settlement of the
related Forward Purchase Contracts is being elected:
If Common Stock or Growth REGISTERED HOLDER
PRIDES Certificates are to be registered
in the name of and delivered to and pledged
Treasury Securities are to be transferred Please print name and address of
to a Person other than the Holder, please Registered Holder:
print such Person's name and address:
_____________________________ _________________________________
Name Name
Address Address
_____________________________ _________________________________
_____________________________ _________________________________
_____________________________ _________________________________
Social Security or other Taxpayer Identification Number, if any ________________
Transfer Instructions for Pledged Treasury Securities transferable upon Early
Settlement or a Termination Event:
________________________________________________________________________________
B-13
EXHIBIT C
INSTRUCTION TO FORWARD PURCHASE CONTRACT AGENT
X.X. Xxxxxx Trust Company, National Association
Chase Financial Tower
Suite 220
000 Xxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attention: Institutional Trust Services
Re: PRIDES of Provident Financial Group, Inc. (the "Company")
The undersigned Beneficial Owner hereby notifies you that it has
delivered to X.X. Xxxxxx Trust Company, National Association, as Collateral
Agent, [$ ___________ aggregate Liquidation Preference of Preferred Stock or the
Applicable Ownership Interest of the Treasury Portfolio, as the case may be]
[$_______ aggregate principal amount of Treasury Securities] in exchange for an
equal Value of [Pledged Preferred Stock] [or the Pledged Applicable Ownership
Interest of the Treasury Portfolio, as the case may be] [Pledged Treasury
Securities] held by the Collateral Agent, in accordance with the Pledge
Agreement, dated June 12, 2002 (the "Pledge Agreement"), between you, as Forward
Purchase Contract Agent and Collateral Agent, and the Company. The undersigned
Beneficial Owner has paid the Collateral Agent all applicable fees and expenses
relating to such exchange and has provided all other documents or information
required by the Collateral Agent in connection with such exchange. The
undersigned Beneficial Owner hereby instructs you, as Forward Purchase Contract
Agent to instruct the Collateral Agent to release to you on behalf of the
undersigned Beneficial Owner the [Pledged Preferred Stock][Pledged Applicable
Ownership Interests][Pledged Treasury Securities] related to such [Income
PRIDES] [Growth PRIDES]. Capitalized terms used herein but not defined shall
have the meaning set forth in the Pledge Agreement.
Date:____________________ By:_________________________________
Signature Guarantee:________________
Dated:
Please print name and address of Registered Beneficial Owner:
_________________________ ____________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
_________________________
_________________________
_________________________
C-1
EXHIBIT D
INSTRUCTION FROM FORWARD PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
X.X. Xxxxxx Trust Company, National Association
Chase Financial Tower
Suite 220
000 Xxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attention: Institutional Trust Services
Re: PRIDES of Provident Financial Group, Inc. (the "Company")
We hereby notify you in accordance with Section [4.1] [4.2] of the
Pledge Agreement, dated as of June 12, 2002, (the "Pledge Agreement") among the
Company, yourselves, as Collateral Agent, Custodial Agent and Securities
Intermediary and ourselves, as Forward Purchase Contract Agent and as
attorney-in-fact for the holders of [Income PRIDES] [Growth PRIDES] from time to
time, that the holder of the Securities listed below (the "Holder") has elected
to substitute [$_______ aggregate Liquidation Preference of Preferred Stock or
the Applicable Ownership Interest of the Treasury Portfolio, as the case may be]
[$_____ aggregate principal amount of Treasury Securities] in exchange for an
equal Value of [Pledged Preferred Stock] [Pledged Applicable Ownership Interests
of the Treasury Portfolio] [Pledged Treasury Securities] held by you in
accordance with the Pledge Agreement and has delivered to us a notice stating
that the Holder has Transferred [the Preferred Stock] [the Applicable Ownership
Interest of the Treasury Portfolio] [the Treasury Securities] to you, as
Collateral Agent. We hereby instruct you, upon receipt of such [Pledged
Preferred Stock] [Pledged Applicable Ownership Interests] [Pledged Treasury
Securities] and upon the payment by such Holder of any applicable fees and
expenses, to release the [Preferred Stock] [Applicable Ownership Interest of the
Treasury Portfolio] [Treasury Securities] related to such [Income PRIDES]
[Growth PRIDES] to us in accordance with the Holder's instructions. Capitalized
terms used herein but not defined shall have the meaning set forth in the Pledge
Agreement.
Date:____________________ By:__________________________
Name:
Title:
Signature Guarantee:_________
Dated:
Please print name and address of Registered Holder electing to substitute
[Preferred Stock] [the Applicable Ownership Interest of the Treasury Portfolio]
[Treasury Securities] for the [Pledged Preferred Stock] [Pledged Applicable
Ownership Interest][Pledged Treasury Securities]:
----------------------------- ---------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
____________________________
____________________________
D-1
EXHIBIT E
NOTICE TO SETTLE BY SEPARATE CASH
X.X. Xxxxxx Trust Company, National Association
Chase Financial Tower
Suite 220
000 Xxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attention: Institutional Trust Services
Re: PRIDES of Provident Financial Group, Inc. (the "Company")
The undersigned Holder hereby irrevocably notifies you in accordance
with Section 5.3 of the Forward Purchase Contract Agreement dated as of June 12,
2002 among the Company, PFGI Capital Corporation (the "REIT") and yourselves, as
Forward Purchase Contract Agent and as attorney-in- fact for the Holders of the
Forward Purchase Contracts, that such Holder has elected to pay to the
Collateral Agent, on or prior to 11:00 a.m. (New York City time) on the Business
Day immediately preceding the Forward 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), $_________ as the
Purchase Price for the shares of Common Stock issuable to such Holder by the
Company under the related Forward Purchase Contract on the Forward Purchase
Contract Settlement Date. The undersigned Holder hereby instructs you to notify
promptly the Collateral Agent of the undersigned Holders election to make such
cash settlement with respect to the Forward Purchase Contracts related to such
Holder's [Income PRIDES] [Growth PRIDES].
Date:____________________ By:_______________________________
Signature Guarantee:______________
Dated:
Please print name and address of Registered Holder:
--------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
_________________________
_________________________
_________________________
E-1
EXHIBIT F
NOTICE FROM FORWARD PURCHASE CONTRACT AGENT TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
______________________________
Attention:
Telecopy: __________
Re: [__________ Income PRIDES] [______ Growth PRIDES] of Provident
Financial Group Inc. (the "Company")
Please refer to the Forward Purchase Contract Agreement, dated as of
June 12, 2002 (the "Forward Purchase Contract Agreement") between the Company,
PFGI Capital Corporation, The Provident Bank and the undersigned, as Forward
Purchase Contract Agent and as attorney-in-fact for the holders of Income PRIDES
and Growth PRIDES from time to time.
We hereby notify you that a Termination Event has occurred and that
[the Preferred Stock] [the Applicable Ownership Interests of the Treasury
Portfolio] [the Treasury Securities] underlying your ownership interest in _____
[Income PRIDES] [Growth PRIDES] have been released and are being held by us for
your account pending receipt of transfer instructions with respect to such
[Preferred Stock][Treasury Securities] (the "Released Securities").
Pursuant to Section 3.15 of the Forward 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
[Income PRIDES][Growth PRIDES] effected through book-entry or by delivery to us
of your [Income PRIDES Certificate][Growth PRIDES 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 distributions
thereon, shall be held in our name, or a nominee in trust for your benefit,
until such time as such [Income PRIDES][Growth PRIDES] are transferred or your
[Income PRIDES Certificate] [Growth PRIDES Certificate] is surrendered or
satisfactory evidence is provided that such [Income PRIDES Certificate][Growth
PRIDES Certificate] has been destroyed, lost or stolen, together with any
indemnification that we or the Company may require.
Date: By: X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, as Forward Purchase Contract
Agent
By :
--------------------------------------
Name:
Title: Authorized Signatory
F-1
