Exhibit 4.7
--------------------------------------------------------------------------------
KANSAS CITY SOUTHERN INDUSTRIES, INC.
AND
THE BANK OF NEW YORK,
AS PURCHASE CONTRACT AGENT
----------------------------
PURCHASE CONTRACT AGREEMENT
----------------------------
DATED AS OF [ ], 2001
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATIONS
SECTION 1.01. Definitions
SECTION 1.02. Compliance Certificates and Opinions
SECTION 1.03. Form of Documents Delivered to Agent
SECTION 1.04. Acts of Holders; Record Dates
SECTION 1.05. Notices
SECTION 1.06. Notice to Holders; Waiver
SECTION 1.07. Effect of Headings and Table of Contents
SECTION 1.08. Successors and Assigns
SECTION 1.09. Separability Clause
SECTION 1.10. Benefits of Agreement
SECTION 1.11. Governing Law
SECTION 1.12. Legal Holidays
SECTION 1.13. Counterparts
SECTION 1.14. Inspection of Agreement
ARTICLE II
CERTIFICATE FORMS
SECTION 2.01. Forms of Certificates Generally
SECTION 2.02. Form of Agent's Certificate of Authentication
ARTICLE III
THE SECURITIES
SECTION 3.01. Title and Terms; Denominations
SECTION 3.02. Rights and Obligations Evidenced by the
Certificates
SECTION 3.03. Execution, Authentication, Delivery and
Dating
SECTION 3.04. Temporary Certificates
SECTION 3.05. Registration; Registration of Transfer and
Exchange
SECTION 3.06. Book-Entry Interests
SECTION 3.07. Notices to Holders
SECTION 3.08. Appointment of Successor Clearing Agency
SECTION 3.09. Definitive Certificates
SECTION 3.10. Mutilated, Destroyed, Lost and Stolen
Certificates
SECTION 3.11. Persons Deemed Owners
SECTION 3.12. Cancellation
SECTION 3.13. Establishment of Treasury Units
SECTION 3.14. Reestablishment of Corporate Units
SECTION 3.15. Transfer of Collateral Upon Occurrence of
Termination Event
SECTION 3.16. No Consent to Assumption
SECTION 3.17. CUSIP Numbers
ARTICLE IV
THE NOTES
SECTION 4.01. Payment of Distribution; Rights to
Distributions Preserved; Distribution
SECTION 4.02. Notice and Voting
SECTION 4.03. Tax Event Redemption
SECTION 4.04. CUSIP Numbers
ARTICLE V
THE PURCHASE CONTRACTS
SECTION 5.01. Purchase of Shares of Common Stock
SECTION 5.02. [Reserved}
SECTION 5.03. Initial Remarketing
SECTION 5.04. Payment of Purchase Price; Secondary
Remarketing
SECTION 5.05. Issuance of Shares of Common Stock
SECTION 5.06. Adjustment of Settlement Rate
SECTION 5.07. Notice of Adjustments and Certain Other Events
SECTION 5.08. Termination Event; Notice
SECTION 5.09. Early Settlement
SECTION 5.10. Early Settlement Upon Merger
SECTION 5.11. Fractional Shares
SECTION 5.12. Charges and Taxes
ARTICLE VI
REMEDIES
SECTION 6.01. Unconditional Right of Holders to Purchase
Common Stock
SECTION 6.02. Restoration of Rights and Remedies
SECTION 6.03. Rights and Remedies Cumulative
SECTION 6.04. Delay or Omission Not Waiver
SECTION 6.05. Undertaking for Costs
SECTION 6.06. Waiver of Stay or Extension Laws
ARTICLE VII
THE AGENT
SECTION 7.01. Certain Duties and Responsibilities
SECTION 7.02. Notice of Default
SECTION 7.03. Certain Rights of Agent
SECTION 7.04. Not Responsible for Recitals or Issuance
of Securities
SECTION 7.05. May Hold Securities
SECTION 7.06. Money Held in Custody
SECTION 7.07. Compensation and Reimbursement
SECTION 7.08. Corporate Agent Required; Eligibility
SECTION 7.09. Resignation and Removal; Appointment of Successor
SECTION 7.10. Acceptance of Appointment by Successor
SECTION 7.11. Merger, Conversion, Consolidation or Succession
to Business
SECTION 7.12. Preservation of Information; Communications to
Holders
SECTION 7.13. No Obligations of Agent
SECTION 7.14. Tax Compliance
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
SECTION 8.01. Supplemental Agreements Without Consent of Holders
SECTION 8.02. Supplemental Agreements With Consent of Holders
SECTION 8.03. Execution of Supplemental Agreements
SECTION 8.04. Effect of Supplemental Agreements
SECTION 8.05. Reference to Supplemental Agreements
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions
SECTION 9.02. Rights and Duties of Successor Corporation
SECTION 9.03. Opinion of Counsel Given to Agent
ARTICLE X
COVENANTS
SECTION 10.01. Performance Under Purchase Contracts
SECTION 10.02. Maintenance of Office or Agency
SECTION 10.03. Company to Reserve Common Stock
SECTION 10.04. Covenants as to Common Stock
EXHIBIT A Form of Corporate Units Certificate
EXHIBIT B Form of Treasury Units Certificate
EXHIBIT C Instruction From Purchase Contract Agent to
Collateral Agent
EXHIBIT D Instruction to Purchase Contract Agent
EXHIBIT E Notice to Settle by Separate Cash
PURCHASE CONTRACT AGREEMENT, dated as of , 2001
between KANSAS CITY SOUTHERN INDUSTRIES, INC., a Delaware
corporation (the "COMPANY"), and THE BANK OF NEW YORK, a New
York banking corporation, acting as purchase contract agent
for the Holders of Securities from time to time (the
"AGENT").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Securities.
All things necessary to make the Purchase Contracts, when the Certificates
are executed by the Company and authenticated, executed on behalf of the Holders
and delivered by the Agent, as provided in this Agreement, the valid obligations
of the Company, and to constitute these presents a valid agreement of the
Company, in accordance with its terms, have been done.
W I T N E S S E T H
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS
SECTION 1.01. DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and
nouns and pronouns of the masculine gender include the feminine and neuter
genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States;
(c) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision;
(d) the following terms have the meanings given to them in this
Section 1.0(d).
"ACT" when used with respect to any Holder, has the meaning specified
in Section 1.04.
"AFFILIATE" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1993, as amended, as is in effect on the date hereof.
"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 MARKET VALUE" has the meaning specified in Section 5.01.
"APPLICABLE OWNERSHIP INTEREST" means, with respect to a Corporate
Unit and the Treasury Securities in the Treasury Portfolio, (A) a 1/40, or
2.5%, undivided beneficial ownership interest in a $1,000 principal or
interest amount of a principal or interest strip in a U.S. Treasury
Security included in such Treasury Portfolio which matures on or prior to
August 16, 2004 and (B) for the scheduled interest payment date on the
Notes that occurs on the Purchase Contract Settlement Date, in the case of
a Successful Initial Remarketing, or after the Tax Event Redemption Date
and on or before the Purchase Contract Settlement Date, in the case of a
Tax Event Redemption, a % undivided beneficial ownership interest in a
$1,000 face amount of such U.S. Treasury Security which is a principal or
interest strip maturing on or prior to such interest payment date in an
amount that is sufficient to pay the interest that is due on such date,
assuming the interest rate on the Notes is not reset as described in
Section 4.01.
"APPLICABLE PRINCIPAL AMOUNT " means the aggregate principal amount of
the Notes which are components of Corporate Units on the Initial
Remarketing 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 is currently
anticipated to be The Wall Street Journal.
"BANKRUPTCY CODE" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"BENEFICIAL OWNER" means, with respect to a Book-Entry Interest, a
Person who is the owner of such Book-Entry Interest as reflected on the
books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with
the rules of such Clearing Agency).
"BOARD OF DIRECTORS" means the board of directors of the Company or a
duly authorized committee of that board.
"BOARD RESOLUTION" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification and delivered to the 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 3.06.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or any
other day on which banking institutions in Xxx Xxxx Xxxx (xx xxx Xxxxx xx
Xxx Xxxx) are permitted or required by any applicable law to close.
"CASH SETTLEMENT" has the meaning set forth in Section 5.04(a)(i).
"CERTIFICATE" means a Corporate Units Certificate or a Treasury Units
Certificate.
"CLEARING AGENCY" means an organization registered as a "CLEARING
AGENCY" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the 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 5.01.
"COLLATERAL" has the meaning specified in Section 2.01 of the Pledge
Agreement.
"COLLATERAL AGENT" means The Chase Manhattan Bank, 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.
"COMMON EQUITY SECURITIES" means shares of a class of stock of the
Company that is not entitled to priority over any other class of stock of
the Company in the payment of dividends or with respect to rights upon the
liquidation, dissolution or winding up of the Company.
"COMMON STOCK" means the Common Stock, $0.01 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.
"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.
"CORPORATE UNIT" means the collective rights and obligations of a
Holder of a Corporate Units Certificate in respect of a Note or an
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, subject in each case to the Pledge thereof, and the related
Purchase Contract.
"CORPORATE UNITS CERTIFICATE" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Corporate
Units specified on such certificate.
"CORPORATE UNITS REGISTER" and "CORPORATE UNITS REGISTRAR" have the
respective meanings specified in Section 3.05.
"COUPON RATE" means the percentage rate per annum at which each Note
will bear interest initially.
"CURRENT MARKET PRICE" has the meaning specified in Section
5.06(a)(8).
"DEPOSITARY" means, initially, DTC until another Clearing Agency
becomes its successor.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"EARLY SETTLEMENT" has the meaning specified in Section 5.09(a).
"EARLY SETTLEMENT AMOUNT" has the meaning specified in Section
5.09(a).
"EARLY SETTLEMENT DATE" has the meaning specified in Section 5.09(a).
"EARLY SETTLEMENT RATE" has the meaning specified in Section 5.09(b).
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and
the rules and regulations promulgated thereunder.
"EXPIRATION DATE" has the meaning specified in Section 1.04.
"EXPIRATION TIME" has the meaning specified in Section 5.06(a)(6).
"FAILED INITIAL REMARKETING" has the meaning specified in Section
5.03.
"FAILED SECONDARY REMARKETING" has the meaning specified in Section
5.04(b).
"GLOBAL NOTE CERTIFICATE" means a certificate evidencing the
respective rights and obligations of Holders in respect of the number of
Notes specified on such certificate and which is registered in the name of
a Clearing Agency or a nominee thereof.
"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.
"HOLDER", when used with respect to a Security, means the Person in
whose name the Security evidenced by a Corporate Units Certificate and/or
Treasury Units Certificate is registered in the related Corporate Units
Register and/or Treasury Units Register, as the case may be.
"INDENTURE" means the Indenture dated as of , 2001 between
KCSR, the Note Guarantors and the Indenture Trustee.
"INDENTURE TRUSTEE" means The Bank of New York, a New York banking
corporation, as trustee under the Indenture, or any successor thereto.
"INITIAL REMARKETING" has the meaning specified in Section 5.03.
"INITIAL REMARKETING DATE" means the third business day immediately
preceding May 17, 2004.
"ISSUER ORDER" or "ISSUER REQUEST" means a written order or request
signed in the name of the Company by its Chairman of the Board, its
President or a Vice President and by its Chief Financial Officer, its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Agent.
"KCSR" means The Kansas City Southern Railway Company, a Missouri
corporation.
"MERGER EARLY SETTLEMENT" has the meaning specified in Section 5.10.
"MERGER EARLY SETTLEMENT AMOUNT" has the meaning specified in Section
5.10.
"MERGER EARLY SETTLEMENT DATE" has the meaning specified in Section
5.10.
"NYSE" has the meaning specified in Section 5.01.
"NEW YORK OFFICE" shall have the meaning set forth in Section 10.02
"NOTES" means the series of senior unsecured notes of KCSR designated
the % Senior Notes due August 17, 2007, to be issued under the Indenture
dated as of the date hereof.
"NOTE GUARANTOR" has the meaning set forth in Section 1.01 of the
Indenture.
"OFFICER'S CERTIFICATE" means a certificate of the Company signed on
its behalf by the Chairman of the Board, the President, any Vice President,
the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company and delivered to the Agent.
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company or an
Affiliate and who shall be reasonably acceptable to the Agent.
"OUTSTANDING SECURITIES" with respect to the Corporate Units or
Treasury Units, means, as of the date of determination, all Corporate Units
or Treasury Units, as the case may be, evidenced by Certificates
theretofore authenticated, executed and delivered under this Agreement,
except:
(i) if a Termination Event has occurred, (A) Treasury Units for
which the Stated Amount of Treasury Securities has been theretofore
deposited with the Agent in trust for the Holders of such Treasury
Units and (B) Corporate Units for which the Stated Amount of the
related Notes or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, has been theretofore deposited
with the Agent in trust for the Holders of such Corporate Units;
(ii) Corporate Units or Treasury Units evidenced by Certificates
theretofore canceled by the Agent or delivered to the Agent for
cancelation or deemed canceled pursuant to the provisions of this
Agreement; and
(iii) Corporate Units or Treasury Units evidenced by Certificates
in exchange for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered pursuant
to this Agreement, other than any such Certificate in respect of which
there shall have been presented to the Agent proof satisfactory to it
that such Certificate is held by a bona fide purchaser in whose hands
the Corporate Units or Treasury Units evidenced by such Certificate
are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
number of the Corporate Units or Treasury Units have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Corporate Units or Treasury Units owned by the Company or any Affiliate of
the Company shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Agent shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver, only Corporate Units or Treasury Units which a Responsible Officer
of the Agent knows to be so owned shall be so disregarded. Corporate Units
or Treasury Units 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 Corporate Units or Treasury Units and that the pledgee is not the
Company or any Affiliate of the Company.
"PAYMENT DATE" means each August 17, November 17, February 17 and May
17, commencing August 17, 2001.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company,
limited liability company, trust, unincorporated association or government
or any agency or political subdivision thereof or any other entity of
whatever nature.
"PERMITTED INVESTMENTS" has the meaning set forth in Article I of the
Pledge Agreement.
"PLEDGE" means the pledge under the Pledge Agreement of the Notes or
the appropriate Applicable Ownership Interest of the Treasury Portfolio, as
the case may be, and of the Treasury Securities, in each case constituting
a part of the Securities.
"PLEDGE AGREEMENT" means the Pledge Agreement, dated as of the date
hereof, by and among the Company, the Collateral Agent and the Agent, on
its own behalf and as attorney-in-fact for the Holders from time to time of
the Securities, as the same may hereafter be amended in accordance with the
terms thereof.
"PLEDGED NOTES" has the meaning set forth in the Pledge Agreement.
"PLEDGED TREASURY SECURITIES" has the meaning set forth in the Pledge
Agreement.
"PREDECESSOR CERTIFICATE" means a Predecessor Corporate Units
Certificate or a Predecessor Treasury Units Certificate.
"PREDECESSOR CORPORATE UNITS CERTIFICATE" of any particular Corporate
Units Certificate means every previous Corporate Units Certificate
evidencing all or a portion of the rights and obligations of the Company
and the Holder under the Corporate Units evidenced thereby; and, for the
purposes of this definition, any Corporate Units Certificate authenticated
and delivered under Section 3.10 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Corporate Units Certificate shall be deemed to
evidence the same rights and obligations of the Company and the Holder as
the mutilated, destroyed, lost or stolen Corporate Units Certificate.
"PREDECESSOR TREASURY UNITS CERTIFICATE" of any particular Treasury
Units Certificate means every previous Treasury Units Certificate
evidencing all or a portion of the rights and obligations of the Company
and the Holder under the Treasury Units evidenced thereby; and, for the
purposes of this definition, any Treasury Units Certificate authenticated
and delivered under Section 3.10 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Treasury Units Certificate shall be deemed to
evidence the same rights and obligations of the Company and the Holder as
the mutilated, destroyed, lost or stolen Treasury Units Certificate.
"PRIMARY TREASURY DEALER" means a primary U.S. government securities
dealer in The City of New York.
"PROCEEDS" has the meaning set forth in Article I of the Pledge
Agreement.
"PURCHASE CONTRACT" when used with respect to any Security, means the
contract forming a part of such Security and obligating the Company to (i)
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.
"PURCHASE CONTRACT SETTLEMENT DATE" means August 17, 2004.
"PURCHASE CONTRACT SETTLEMENT FUND" has the meaning specified in
Section 5.05.
"PURCHASE PRICE" has the meaning specified in Section 5.01.
"PURCHASED SHARES" has the meaning specified in Section 5.06(a)(6).
"QUOTATION AGENT" means (i) X.X. Xxxxxx Securities Inc. and its
respective successors; PROVIDED, HOWEVER, that if the foregoing shall cease
to be a Primary Treasury Dealer, the Company shall substitute therefor
another Primary Treasury Dealer or (ii) any other Primary Treasury Dealer
selected by the Company.
"RECORD DATE" for the distribution payable in respect of the Notes or
the Applicable Ownership Percentage of the Treasury Portfolio payable on
any Payment Date means the first day of the month in which the relevant
Payment Date occurs.
"REDEMPTION AMOUNT" means, for each Note, (a) prior to May 17, 2004
or, in the event of a Failed Initial Remarketing, prior to the Purchase
Contract Settlement Date, the product of (i) the principal amount of such
Note and (ii) a fraction whose numerator is the applicable Treasury
Portfolio Purchase Price and whose denominator is the applicable Tax Event
Redemption Principal Amount and (b) on or after May 17, 2004, or in the
event of a Failed Initial Remarketing, on or after the Purchase Contract
Settlement Date, the aggregate principal amount of such Note.
"REDEMPTION PRICE" means the redemption price per Note equal to the
Redemption Amount plus any accrued and unpaid interest on such Note to the
date of redemption.
"REGISTER" means the Corporate Units Register and the Treasury Units
Register.
"REGISTRAR" means the Corporate Units Registrar and the Treasury Units
Registrar.
"REMARKETING AGENT" has the meaning specified in Section 5.03.
"REMARKETING AGREEMENT" means the Remarketing Agreement dated as of ,
2001 by and among the Company, the Remarketing Agent and the Purchase
Contract Agent.
"REMARKETING FEE" has the meaning specified in Section 5.03.
"REORGANIZATION EVENT" has the meaning specified in Section 5.06(c).
"RESET AGENT" means a nationally recognized investment banking firm
chosen by the Company to determine the Reset Rate. It is currently
anticipated that X.X. Xxxxxx Securities Inc. will act in such capacity.
"RESET ANNOUNCEMENT DATE" means, in the case of the Reset Rate to be
determined on the Initial Remarketing Date, the tenth Business Day
immediately preceding May 17, 2004 and, in the case of the Reset Rate to be
determined on the Secondary Remarketing Date, the tenth Business Day
immediately preceding the Purchase Contract Settlement Date.
"RESET RATE" means the interest rate per annum (to be determined by
the Reset Agent), equal to the sum of (X) the Reset Spread and (Y) the rate
of interest on (1) in the case of the Reset Rate to be determined on the
Initial Remarketing Date, the Three and One-Quarter Year Benchmark Treasury
in effect on the Initial Remarketing Date or (2) in the case of the Reset
Rate to be determined on the Secondary Remarketing Date, the Three-Year
Benchmark Treasury in effect on the Secondary Remarketing Date.
"RESET SPREAD" means (a) in the case of the Reset Rate to be
determined on the Initial Remarketing Date, a spread amount to be
determined by the Reset Agent on the applicable Reset Announcement Date as
the appropriate spread so that the Reset Rate will be the interest rate
that the Notes should bear in order for the Applicable Principal Amount of
Notes to have an approximate aggregate market value of 100.25% of the
Treasury Portfolio Purchase Price on the Initial Remarketing Date and (b)
in the case of the Reset Rate to be determined on the Secondary Remarketing
Date, a spread amount determined by the Reset Agent on the applicable Reset
Announcement Date as the appropriate spread so that the Reset Rate will be
the interest rate that the Notes should bear in order for the Notes to have
an approximate market value of 100.25% of their principal amount on the
Secondary Remarketing Date, PROVIDED that the Reset Spread shall not,
without the Company's consent, exceed the Reset Spread Cap.
"RESET SPREAD CAP" will equal (1)if KCSR's 9 1/2% senior notes due
2008 (the "Existing Senior Notes") are outstanding at such time, the amount
by which the yield to maturity of the Existing Senior Notes, as determined
by the Reset Agent, is greater than such applicable benchmark Treasury rate
on the business day such Treasury rate is determined or (2) if no Existing
Senior Notes are outstanding at such time, the spread referenced in the
JPMorgan Dollar Global Bond Index for comparably rated companies, adjusted
for the appropriate maturity, in each case plus (a) 125 basis points
(1.25%)and (b) for purposes of determining the reset spread cap on the
third business day preceding May 17,2004 only, an additional spread
sufficient to provide amounts to pay the interest due on the Notes on
August 17, 2004 to the holders of the Notes participating in the
remarketing, PROVIDED that such additional spread shall not exceed 50 basis
points (.50%).
"RESPONSIBLE OFFICER", when used with respect to the Agent, means any
officer of the Agent assigned by the Agent to administer its corporate
trust matters.
"SECONDARY REMARKETING" has the meaning specified in Section 5.04(b).
"SECONDARY REMARKETING DATE" means the third business day immediately
preceding the Purchase Contract Settlement Date.
"SECURITY" means a Corporate Unit or a Treasury Unit.
"SETTLEMENT RATE" has the meaning specified in Section 5.01.
"STATED AMOUNT" means $25.
"SUCCESSFUL INITIAL REMARKETING" has the meaning specified in Section
5.03.
"SUCCESSFUL SECONDARY REMARKETING" has the meaning specified in
Section 5.04(b).
"TAX EVENT" means the receipt by the Company of an opinion of
Sonnenschein, Nath & Xxxxxxxxx or other nationally recognized independent
tax counsel experienced in such matters to the effect that, as a result of
(a) any amendment to, or change (including any announced proposed change)
in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting
taxation, (b) any amendment to or change in an interpretation or
application of such laws or regulations by any legislative body, court,
governmental agency or regulatory authority or (c) any interpretation or
pronouncement that provides for a position with respect to such laws or
regulations that differs from the generally accepted position on the date
the Notes are issued, which amendment, change or proposed change is
effective or which interpretation or pronouncement is announced on or after
the date of the first issuance of Notes under the Indenture, there is more
than an insubstantial risk that interest payable by the Company on the
Notes is not, or within 90 days of such opinion would not, be deductible,
in whole or in part, by the Company for United States Federal income tax
purposes.
"TAX EVENT REDEMPTION" means, if a Tax Event shall occur and be
continuing, the redemption of the Notes, at the option of the Company, in
whole but not in part, on not less than 30 days' nor more than 60 days'
notice.
"TAX EVENT REDEMPTION PRINCIPAL AMOUNT" means either (i) if the Tax
Event Redemption Date occurs prior to May 17, 2004 or, in the event of a
Failed Initial Remarketing, prior to the Purchase Contract Settlement Date,
the aggregate principal amount of the Notes which are components of
Corporate Units on the Tax Event Redemption Date or (ii) if the Tax Event
Redemption Date occurs on or after May 17, 2004, or in the event of a
Failed Initial Remarketing, on or after the Purchase Contract Settlement
Date, the aggregate principal amount of the Notes outstanding on such Tax
Event Redemption Date.
"TAX EVENT REDEMPTION DATE" means the date upon which a Tax Event
Redemption is to occur.
"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 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 or any other similar applicable Federal or State
law, and, unless such judgment, decree or order shall have been entered
within 60 days prior to the Purchase Contract Settlement Date, such decree
or order shall have continued undischarged and unstayed for a period of 60
days; or (ii) at any time on or prior to the Purchase Contract Settlement
Date, a judgment, decree or court order for the appointment of a receiver
or liquidator or trustee or assignee in bankruptcy or insolvency of the
Company or of its property, or for the winding up or liquidation of its
affairs, shall have been entered, and, unless such judgment, decree or
order shall have been entered within 60 days prior to the Purchase Contract
Settlement Date, such judgment, decree or order shall have continued
undischarged and unstayed for a period of 60 days, or (iii) at any time on
or prior to the Purchase Contract Settlement Date the Company shall file a
petition for relief under the Bankruptcy Code, or shall consent to the
filing of a bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization or liquidation 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.
"THREE-YEAR BENCHMARK TREASURY" means direct obligations of the United
States (which may be obligations traded on a when-issued basis only) having
a maturity comparable to the remaining term to maturity of the Notes, as
agreed upon by the Company and the Reset Agent. The rate for the Three-Year
Benchmark Treasury will be the bid side rate displayed at 10:00 a.m., New
York City time, on the third Business Day immediately preceding the
Purchase Contract Settlement Date in the Telerate system (or if the
Telerate system is (a) no longer available on the Secondary Remarketing
Date or (b) in the opinion of the Reset Agent (after consultation with the
Company) no longer an appropriate system from which to obtain such rate,
such other nationally recognized quotation system as, in the opinion of the
Reset Agent (after consultation with the Company) is appropriate). If such
rate is not so displayed, the rate for the Three-Year Benchmark Treasury
shall be, as calculated by the Reset Agent, the yield to maturity for the
Three-Year Benchmark Treasury, expressed as a bond equivalent on the basis
of a year of 365 or 366 days, as applicable, and applied on a daily basis,
and computed by taking the arithmetic mean of the secondary market bid
rates, as of 10:30 a.m., New York City time, on the Secondary Remarketing
Date of three leading United States government securities dealers selected
by the Reset Agent (after consultation with the Company) (which may include
the Reset Agent or an Affiliate thereof).
"THREE AND ONE-QUARTER YEAR BENCHMARK TREASURY" means direct
obligations of the United States (which may be obligations traded on a
when-issued basis only) having a maturity comparable to the remaining term
to maturity of the Notes, as agreed upon by the Company and the Reset
Agent. The rate for the Three and One-Quarter Year Benchmark Treasury will
be the bid side rate displayed at 10:00 a.m., New York City time, on the
Initial Remarketing Date in the Telerate system (or if the Telerate system
is (a) no longer available on the Initial Remarketing Date or (b) in the
opinion of the Reset Agent (after consultation with the Company) no longer
an appropriate system from which to obtain such rate, such other nationally
recognized quotation system as, in the opinion of the Reset Agent (after
consultation with the Company) is appropriate). If such rate is not so
displayed, the rate for the Three and One-Quarter Year Benchmark Treasury
shall be, as calculated by the Reset Agent, the yield to maturity for the
Three and One-Quarter Year Benchmark Treasury, expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis, and computed by taking the arithmetic mean of the
secondary market bid rates, as of 10:30 a.m., New York City time, on the
Initial Remarketing Date of three leading United States government
securities dealers selected by the Reset Agent (after consultation with the
Company) (which may include the Reset Agent or an Affiliate thereof).
"THRESHOLD APPRECIATION PRICE " has the meaning specified in Section
5.01.
"TIA" means the Trust Indenture Act of 1939, as amended, or any
successor statute.
"TRADING DAY" has the meaning specified in Section 5.01.
"TREASURY PORTFOLIO" means (1) in connection with the Initial
Remarketing, a portfolio of zero coupon U.S. Treasury Securities consisting
of (a) principal or interest strips of U.S. Treasury Securities which
mature on or prior to August 16, 2004 in an aggregate amount equal to the
Applicable Principal Amount and (b) with respect to the scheduled interest
payment date on the Notes that occurs on the Purchase Contract Settlement
Date, principal or interest strips of U.S. Treasury Securities which mature
on or prior to August 16, 2004 in an aggregate amount equal to the
aggregate interest payment that would be due on the Applicable Principal
Amount of the Notes on such date if the applicable Coupon Rate on the Notes
were not reset to the Reset Rate as described in Section 4.01 and (2) in
connection with a Tax Event Redemption, if the Tax Event Redemption Date
occurs prior to May 17, 2004 or, in the event of a Failed Initial
Remarketing, prior to the Purchase Contract Settlement Date, a portfolio of
zero coupon U.S. Treasury Securities consisting of (i) principal or
interest strips of U.S. Treasury Securities which mature on or prior to
August 16, 2004 in an aggregate amount equal to the applicable Tax Event
Redemption Principal Amount and (ii) with respect to each scheduled
interest payment date on the Notes that occurs after the Tax Event
Redemption Date and on or before the Purchase Contract Settlement Date,
principal or interest strips of U.S. Treasury Securities which mature on or
prior to such date in an aggregate amount equal to the aggregate interest
payment that would be due on the applicable Tax Event Redemption Principal
Amount of the Notes on such date.
"TREASURY PORTFOLIO PURCHASE PRICE" means the lowest aggregate price
quoted by the Primary Treasury Dealer to the Quotation Agent (a) in the
case of a Tax Event Redemption, on the third Business Day immediately
preceding the Tax Event Redemption Date for the purchase of the applicable
Treasury Portfolio for settlement on the Tax Event Redemption Date and (b)
in the case of the Initial Remarketing, on the Initial Remarketing Date for
the purchase of the applicable Treasury Portfolio for settlement on or
prior to August 17, 2004.
"TREASURY SECURITY" means zero-coupon U.S. Treasury Securities (CUSIP
Number 000000XX0) which are the principal strip of the U.S. Treasury
Securities which mature on or prior to August 16, 2004.
"TREASURY UNIT" means the collective rights and obligations of a
Holder of a Treasury Units Certificate in respect of the Treasury
Securities, subject to the Pledge thereof, and the related Purchase
Contract.
"TREASURY UNITS CERTIFICATE" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Treasury Units
specified on such certificate.
"TREASURY UNITS REGISTER" and "TREASURY UNITS REGISTRAR" have the
respective meanings specified in Section 3.05.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement dated , 2001
among the Company, X.X. Xxxxxx Securities Inc., Xxxxxx Xxxxxxx & Co.
Incorporated and Deutsche Banc Alex. Xxxxx Inc.
"VICE PRESIDENT" means any vice president, whether or not designated
by a number or a word or words added before or after the title "vice
president".
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS. Except as otherwise
expressly provided by this Agreement, upon any application or request by the
Company to the Agent to take any action under any provision of this Agreement,
the Company shall furnish to the Agent an 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 reasonably 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.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement shall include:
(1) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, he or she or
it has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO AGENT. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless the Company knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, the
Company stating that the information with respect to such factual matters is in
the possession of the Company unless the Person giving such certificate or
Opinion of Counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. 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 agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Agent and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "ACT" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Agreement and (subject to
Section 7.01) conclusive in favor of the Agent and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Agent deems
sufficient.
(c) The ownership of Securities shall be proved by the Corporate Units
Register or the Treasury Units Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or suffered to be done
by the Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Agreement to be given, made
or taken by Holders of Securities. If any record date is set pursuant to
this paragraph, the Holders of the Outstanding Corporate Units and the
Outstanding Treasury Units, as the case may be, on such record date, and no
other Holders, shall be entitled to take the relevant action with respect
to the Corporate Units or the Treasury Units, as the case may be, whether
or not such Holders remain Holders after such record date; PROVIDED that no
such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite number of
Outstanding Securities on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite number of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Agent in writing and to each Holder of Securities
in the manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "EXPIRATION DATE" and from time to
time may change the Expiration Date to any earlier or later day; PROVIDED
that no such change shall be effective unless notice of the proposed new
Expiration Date is given to the Agent in writing, and to each Holder of
Securities in the manner set forth in Section 1.06, on or prior to the
existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the Company shall
be deemed to have initially designated the 180th day after such record date
as the Expiration Date with respect thereto, subject to its right to change
the Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
SECTION 1.05. NOTICES. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document provided or
permitted by this Agreement to be made upon, given or furnished to, or filed
with,
(1) the Agent by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and personally
delivered or mailed, first class postage prepaid, to the Agent at , or
at any other address previously furnished in writing by the Agent to
the Holders and the Company; 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
Kansas City Southern Industries, Inc., 000 Xxxx 00xx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000, Attention: Chief Financial Officer, or at any
other address previously furnished in writing to the Agent by the
Company; or
(3) the Collateral Agent by the Agent, the Company or any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if made, given, furnished or filed in
writing and personally delivered or mailed, first class postage
prepaid, addressed to the Collateral Agent at , or at any other
address previously furnished in writing by the Collateral Agent to the
Agent, the Company and the Holders; or
(4) the Indenture Trustee by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided)
if made, given, furnished or filed in writing and personally delivered
or mailed, first class postage prepaid, addressed to the Indenture
Trustee at , or at any other address previously furnished in writing
by the Indenture Trustee to the Company.
SECTION 1.06. NOTICE TO HOLDERS; WAIVER. Where this Agreement provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first class
postage prepaid, to each Holder affected by such event, at its address as it
appears in the applicable Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Agent, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Agent shall constitute a
sufficient notification for every purpose hereunder.
SECTION 1.07. 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 1.08. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.09. SEPARABILITY CLAUSE. In case any provision in this Agreement
or in the Securities shall be invalid, illegal or unenforceable, then, to the
extent permitted by law, the validity, legality and enforceability of the
remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
SECTION 1.10. BENEFITS OF AGREEMENT. Nothing 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 applicable terms and conditions
hereof and of the Securities evidenced by their Certificates by their acceptance
of delivery of such Certificates.
SECTION 1.11. GOVERNING LAW. THIS AGREEMENT AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 1.12. LEGAL HOLIDAYS. In any case where any Purchase Contract
Settlement Date shall not be a Business Day, then (notwithstanding any other
provision of this Agreement, the Corporate Units Certificates or the Treasury
Units Certificates), the Purchase Contracts shall not be performed on such date,
but the Purchase Contracts shall be performed on the immediately following
Business Day with the same force and effect as if performed on the Purchase
Contract Settlement Date.
SECTION 1.13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts by the parties hereto on separate counterparts, each of which, when
so executed and delivered, shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
SECTION 1.14. INSPECTION OF AGREEMENT. A copy of this Agreement shall be
available at all reasonable times during normal business hours at the Corporate
Trust Office for inspection by any Holder.
ARTICLE II
CERTIFICATE FORMS
SECTION 2.01. FORMS OF CERTIFICATES GENERALLY. The Corporate Units
Certificates (including the form of Purchase Contract forming part of the
Corporate Units evidenced thereby) shall be in substantially the form set forth
in Exhibit A hereto, with such letters, numbers or other marks of identification
or designation and such legends or endorsements printed, lithographed or
engraved thereon as may be required by the rules of any securities exchange on
which the Corporate Units are listed or any depositary therefor, or as may,
consistently herewith, be determined by the officers of the Company executing
such Corporate Units Certificates, as evidenced by their execution of the
Corporate Units Certificates.
The definitive Corporate Units Certificates shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing such Corporate Units
Certificates, consistent with the provisions of this Agreement, as evidenced by
their execution thereof.
The Treasury Units Certificates (including the form of Purchase Contract
forming part of the Treasury Units evidenced thereby) shall be in substantially
the form set forth in Exhibit B hereto, with such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Treasury Units are listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Treasury Units Certificates, as evidenced by their
execution of the Treasury Units Certificates.
The definitive Treasury Units Certificates shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers of the Company executing such Treasury Units
Certificates, consistent with the provisions of this Agreement, as evidenced by
their execution thereof.
Every Global Certificate authenticated, executed on behalf of the Holders
and delivered hereunder shall bear a legend in substantially the following form:
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED
IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF. THIS
CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE
REGISTERED, AND NO TRANSFER OF THIS CERTIFICATE IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH CLEARING
AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
SECTION 2.02. FORM OF AGENT'S CERTIFICATE OF AUTHENTICATION. The form of
the Agent's certificate of authentication of the Corporate Units shall be in
substantially the form set forth on the form of the Corporate Units
Certificates.
The form of the Agent's certificate of authentication of the Treasury Units
shall be in substantially the form set forth on the form of the Treasury Units
Certificates.
ARTICLE III
THE SECURITIES
SECTION 3.01. TITLE AND TERMS; DENOMINATIONS. The aggregate number of
Corporate Units and Treasury Units evidenced by Certificates authenticated,
executed on behalf of the Holders and delivered hereunder is limited to
$115,000,000 (or $132,250,000 if the Underwriters' overallotment option 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 3.04, 3.05, 3.09, 3.10, 3.13, 3.14, 5.09 or
8.05.
The Certificates shall be issuable only in registered form and only in
denominations of a single Corporate Unit or Treasury Unit and any integral
multiple thereof.
SECTION 3.02. RIGHTS AND OBLIGATIONS EVIDENCED BY THE CERTIFICATES. Each
Corporate Units Certificate shall evidence the number of Corporate Units
specified therein, with each such Corporate Unit representing the ownership by
the Holder thereof of a beneficial interest in a Note or the Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, subject to the
Pledge of such Note or the Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, by such Holder pursuant to the Pledge Agreement,
and the rights and obligations of the Holder thereof and the Company under one
Purchase Contract. The Agent as attorney-in-fact for, and on behalf of, the
Holder of each Corporate Unit shall pledge, pursuant to the Pledge Agreement,
the Note or the Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, forming a part of such Corporate Unit, to the Collateral Agent and
grant to the Collateral Agent a security interest in the right, title, and
interest of such Holder in such Note or the Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, for the benefit of the Company, to
secure the obligation of the Holder under each Purchase Contract to purchase the
Common Stock of the Company.
Each Treasury Units Certificate shall evidence the number of Treasury Units
specified therein, with each such Treasury Unit representing the ownership by
the Holder thereof of a 1/40, or 2.5%, undivided beneficial interest in a
Treasury Security with 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 the rights and obligations of the Holder thereof and the Company
under one Purchase Contract. The Agent as attorney-in-fact for, and on behalf
of, the Holder of each Treasury Unit shall pledge, pursuant to the Pledge
Agreement, the Treasury Security to the Collateral Agent and grant to the
Collateral Agent a security interest in the right, title and interest of such
Holder in such Treasury Security, for the benefit of the Company, to secure the
obligation of the Holder under each Purchase Contract to purchase the Common
Stock of the Company.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. Subject to
the provisions of Sections 3.13 and 3.14 hereof, upon the execution and delivery
of this Agreement, and at any time and from time to time thereafter, the Company
may deliver Certificates executed by the Company to the Agent for
authentication, execution on behalf of the Holders and delivery, together with
its Issuer Order for authentication of such Certificates, and the Agent in
accordance with such Issuer Order shall authenticate, execute on behalf of the
Holders and deliver such Certificates.
The Certificates shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents and its Treasurer or
one of its Assistant Treasurers or its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Certificates may be
manual or facsimile.
Certificates bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid until such
Certificate has been executed on behalf of the Holder by the manual signature of
an authorized signatory of the Agent, as such Holder's attorney-in-fact. Such
signature by an authorized signatory of the Agent shall be conclusive evidence
that the Holder of such Certificate has entered into the Purchase Contracts
evidenced by such Certificate.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this Agreement or be
valid or obligatory for any purpose unless there appears on such Certificate a
certificate of authentication substantially in the form provided for herein
executed by an authorized signatory of the Agent by manual signature, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder.
SECTION 3.04. TEMPORARY CERTIFICATES. Pending the preparation of definitive
Certificates, the Company shall execute and deliver to the Agent, and the Agent
shall authenticate, execute on behalf of the Holders, and deliver, in lieu of
such definitive Certificates, temporary Certificates which are in substantially
the form set forth in Exhibit A or Exhibit B hereto, as the case may be, with
such letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the Corporate Units or
Treasury Units are listed, or as may, consistently herewith, be determined by
the officers of the Company executing such Certificates, as evidenced by their
execution of the Certificates.
If temporary Certificates are issued, the Company will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation of
definitive Certificates, the temporary Certificates shall be exchangeable for
definitive Certificates upon surrender of the temporary Certificates at the
Corporate Trust Office or the New York Office, at the expense of the Company and
without charge to the Holder. Upon surrender for cancelation of any one or more
temporary Certificates, the Company shall execute and deliver to the Agent, and
the Agent shall authenticate, execute on behalf of the Holder, and deliver in
exchange therefor, one or more definitive Certificates of like tenor and
denominations and evidencing a like number of Corporate Units or Treasury Units,
as the case may be, as the temporary Certificate or Certificates so surrendered.
Until so exchanged, the temporary Certificates shall in all respects evidence
the same benefits and the same obligations with respect to the Corporate Units
or Treasury Units, as the case may be, evidenced thereby as definitive
Certificates.
SECTION 3.05. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The
Agent shall keep at the Corporate Trust Office a Register (the "CORPORATE UNITS
REGISTER") in which, subject to such reasonable regulations as it may prescribe,
the Agent shall provide for the registration of Corporate Units Certificates and
of transfers of Corporate Units Certificates (the Agent, in such capacity, the
"CORPORATE UNITS REGISTRAR") and a Register (the "TREASURY UNITS REGISTER") in
which, subject to such reasonable regulations as it may prescribe, the Agent
shall provide for the registration of Treasury Units Certificates and of
transfers of Treasury Units Certificates (the Agent, in such capacity, the
"TREASURY UNITS REGISTRAR").
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office or the New York Office, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf of the
designated transferee or transferees, and deliver, 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 Corporate Units or
Treasury Units, as the case may be.
At the option of the Holder, Certificates may be exchanged for other
Certificates, of any authorized denominations and evidencing a like number of
Corporate Units or Treasury Units, as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office or the New York
Office. Whenever any Certificates are so surrendered for exchange, the Company
shall execute and deliver to the Agent, and the Agent shall authenticate,
execute on behalf of the Holder, and deliver the Certificates which the Holder
making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or exchange of a
Certificate shall evidence the ownership of the same number of Corporate Units
or Treasury Units, as the case may be, and be entitled to the same benefits and
subject to the same obligations, under this Agreement as the Corporate Units or
Treasury Units, as the case may be, evidenced by the Certificate surrendered
upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of transfer or
for exchange shall (if so required by the Agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Agent duly executed, by the Holder thereof or its attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Company and the Agent may require payment
from the Holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates, other than any exchanges pursuant to Sections 3.04,
3.06, 3.09 and 8.05 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder and deliver, any Certificate
presented or surrendered for registration of transfer or for exchange on or
after the Business Day immediately preceding the earlier of the Purchase
Contract Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Agent shall (i) if the Purchase Contract Settlement Date
has occurred, deliver the shares of Common Stock issuable in respect of the
Purchase Contracts forming a part of the Securities evidenced by such
Certificate (together with any cash or other property to which the Holder is
entitled), or (ii) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Notes, the appropriate
Applicable Ownership Interest of the Treasury Portfolio or the Treasury
Securities, as the case may be, evidenced thereby, in each case subject to the
applicable conditions and in accordance with the applicable provisions of
Article V hereof.
SECTION 3.06. BOOK-ENTRY INTERESTS. The Certificates, on original issuance,
will be issued in the form of one or more fully registered Global Certificates,
to be delivered to the Depositary by, or on behalf of, the Company. Such Global
Certificate shall initially be registered on the books and records of the
Company in the name of Cede & Co., the nominee of the Depositary, and no
Beneficial Owner will receive a definitive Certificate representing such
Beneficial Owner's interest in such Global Certificate, except as provided in
Section 3.09. The Agent shall enter into an agreement with the Depositary if so
requested by the Company. Unless and until definitive, fully registered
Certificates have been issued to Beneficial Owners pursuant to Section 3.09:
(a) the provisions of this Section 3.06 shall be in full force and
effect;
(b) the Company shall be entitled to deal with the Clearing Agency for
all purposes of this Agreement (including receiving approvals, votes or
consents hereunder) as the Holder of the Securities and the sole holder of
the Global Certificate(s) and shall have no obligation to the Beneficial
Owners;
(c) to the extent that the provisions of this Section 3.06 conflict
with any other provisions of this Agreement, the provisions of this Section
3.06 shall control; and
(d) the rights of the Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Beneficial Owners and the Clearing Agency
and/or the Clearing Agency Participants. The Clearing Agency will make
book-entry transfers among Clearing Agency Participants.
SECTION 3.07. NOTICES TO HOLDERS. Whenever a notice or other communication
to the Holders is required to be given under this Agreement, the Company or the
Company's agent shall give such notices and communications to the Holders and,
with respect to any Securities registered in the name of a Clearing Agency or
the nominee of a Clearing Agency, the Company or the Company's agent shall,
except as set forth herein, have no obligations to the Beneficial Owners.
SECTION 3.08. APPOINTMENT OF SUCCESSOR CLEARING AGENCY. If any Clearing
Agency elects to discontinue its services as securities depositary with respect
to the Securities, the Company may, in its sole discretion, appoint a successor
Clearing Agency with respect to the Securities.
SECTION 3.09. DEFINITIVE CERTIFICATES. If (i) a Clearing Agency elects to
discontinue its services as securities depositary with respect to the Securities
and a successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 3.08, (ii) the Company elects to terminate
the book-entry system through the Clearing Agency 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 Purchase Contracts,
or one or more Notes, then upon surrender of the Global Certificates
representing the Book-Entry Interests with respect to the Securities by the
Clearing Agency, accompanied by registration instructions, the Company shall
cause definitive Certificates to be delivered to Beneficial Owners in accordance
with the instructions of the Clearing Agency. The Company shall not be liable
for any delay in delivery of such instructions and may conclusively rely on and
shall be protected in relying on, such instructions.
SECTION 3.10. MUTILATED, DESTROYED, LOST AND STOLEN CERTIFICATES. If any
mutilated Certificate is surrendered to the Agent, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf of the
Holder, and deliver in exchange therefor, a new Certificate at the cost of the
Holder, evidencing the same number of Corporate Units or Treasury Units, as the
case may be, and bearing a Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the 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 Company or the Agent that such Certificate has been
acquired by a bona fide purchaser, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or stolen
Certificate, a new Certificate, evidencing the same number of Corporate Units or
Treasury Units, as the case may be, and bearing a Certificate number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder, and deliver to the Holder, a
Certificate on or after the Business Day immediately preceding the earlier of
the 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 Purchase
Contract Settlement Date has occurred, deliver the shares of Common Stock
issuable in respect of the Purchase Contracts forming a part of the Securities
evidenced by such Certificate (together with any cash or other property to which
the Holder is entitled), or (ii) if a Termination Event shall have occurred
prior to the Purchase Contract Settlement Date, transfer the Notes, the
appropriate Applicable Ownership Interest of the Treasury Portfolio or the
Treasury Securities, as the case may be, evidenced thereby, in each case subject
to the applicable conditions and in accordance with the applicable provisions of
Article V hereof.
Upon the issuance of any new Certificate under this Section, the Company
and the Agent may require the payment by the Holder of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the reasonable fees and expenses of the Agent)
connected therewith.
Every new Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Certificate shall constitute an original additional
contractual obligation of the Company and of the Holder in respect of the
Security evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Securities evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of this Agreement equally and proportionately with any
and all other Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 3.11. PERSONS DEEMED OWNERS. Prior to due presentment of a
Certificate for registration of transfer, the Company and the Agent, and any
agent of the Company or the Agent, may treat the Person in whose name such
Certificate is registered as the owner of the Corporate Units or Treasury Units
evidenced thereby, for the purpose of receiving interest on the Notes or on the
maturing quarterly interest strips of the Treasury Portfolio, as applicable,
performance of the Purchase Contracts and for all other purposes whatsoever,
whether or not any interest on the Notes shall be overdue and notwithstanding
any notice to the contrary, and neither the Company nor the Agent, nor any agent
of the Company or the Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Certificate,
nothing herein shall prevent the Company, the Agent or any agent of the Company
or the Agent, from giving effect to any written certification, proxy or other
authorization furnished by any Clearing Agency (or its nominee), as a Holder,
with respect to such Global Certificate or impair, as between such Clearing
Agency and owners of beneficial interests in such Global Certificate, the
operation of customary practices governing the exercise of rights of such
Clearing Agency (or its nominee) as Holder of such Global Certificate.
SECTION 3.12. CANCELATION. All Certificates surrendered for delivery of
shares of Common Stock on or after the Purchase Contract Settlement Date, upon
the transfer of Notes, the appropriate Applicable Ownership Interest 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 a Corporate Unit or Treasury Unit shall,
if surrendered to any Person other than the Agent, be delivered to the Agent
and, if not already canceled, shall be promptly canceled by it. The Company may
at any time deliver to the Agent for cancelation any Certificates previously
authenticated, executed and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Certificates so delivered shall, upon
Issuer Order, be promptly canceled 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 canceled as provided in this Section, except as
expressly permitted by this Agreement. All canceled Certificates held by the
Agent shall upon written request be returned to the Company.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancelation of such
Certificate unless and until such Certificate is delivered to the Agent canceled
or for cancelation.
SECTION 3.13. ESTABLISHMENT OF TREASURY UNITS. Unless the Treasury
Portfolio has replaced the Notes as a component of the Corporate Units as the
result of a successful Initial Remarketing or a Tax Event Redemption, a Holder
may separate the Notes from the related Purchase Contracts in respect of a
Corporate Unit by substituting for such Notes Treasury Securities in an
aggregate principal amount equal to the aggregate principal amount of such Notes
(a "COLLATERAL SUBSTITUTION"), at any time from and after the date of this
Agreement and on or prior to the fifth Business Day immediately preceding the
Purchase Contract Settlement Date by (a) depositing with the Collateral Agent
Treasury Securities having an aggregate principal amount equal to the aggregate
principal amount of the Notes comprising part of such Corporate Units and (b)
transferring the related Corporate Units to the Agent accompanied by a notice to
the Agent, substantially in the form of Exhibit D hereto, stating that the
Holder has transferred the relevant amount of Treasury Securities to the
Collateral Agent and requesting that the Agent instruct the Collateral Agent to
release the Notes underlying such Corporate Units, whereupon the Agent shall
promptly give such instruction to the Collateral Agent, substantially in the
form of Exhibit C hereto. Upon receipt of the Treasury Securities described in
clause (a) above and the instruction described in clause (b) above, in
accordance with the terms of the Pledge Agreement, the Collateral Agent will
release to the Agent, on behalf of the Holder, Notes having the appropriate
aggregate principal amount from the Pledge, free and clear of the Company's
security interest therein, and upon receipt thereof the Agent shall promptly:
(i) cancel the related Corporate Units;
(ii) transfer the Notes to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver a
Treasury Units Certificate executed by the Company in accordance with
Section 3.03 evidencing the same number of Purchase Contracts as were
evidenced by the canceled Corporate Units.
Holders who elect to separate the Notes from the related Purchase Contract
and to substitute Treasury Securities for such Notes shall be responsible for
any fees or expenses payable to the Collateral Agent for its services as
Collateral Agent in respect of the substitution, and the Company shall not be
responsible for any such fees or expenses.
Holders may make Collateral Substitutions only in integral multiples of 40
Corporate Units.
In the event a Holder making a Collateral Substitution pursuant to this
Section 3.13 fails to effect a book-entry transfer of the Corporate Units or
fails to deliver a Corporate Units Certificate(s) to the Agent after depositing
Treasury Securities with the Collateral Agent, the Notes constituting a part of
such Corporate Units, and any interest on such Notes shall be held in the name
of the Agent or its nominee in trust for the benefit of such Holder, until such
Corporate Units are so transferred or the Corporate Units Certificate is so
delivered, as the case may be, or, with respect to a Corporate Units
Certificate, such Holder provides evidence satisfactory to the Company and the
Agent that such Corporate Units Certificate has been destroyed, lost or stolen,
together with any indemnity that may be required by the Agent and the Company.
Except as described in this Section 3.13, for so long as the Purchase
Contract underlying a Corporate Unit remains in effect, such Corporate Unit
shall not be separable into its constituent parts, and the rights and
obligations of the Holder in respect of the Notes or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, and Purchase
Contract comprising such Corporate Unit may be acquired, and may be transferred
and exchanged, only as a Corporate Unit.
SECTION 3.14. REESTABLISHMENT OF CORPORATE UNITS. Unless the Treasury
Portfolio has replaced the Notes as a component of the Corporate Units as the
result of a successful Initial Remarketing or a Tax Event Redemption, a Holder
of a Treasury Unit may recreate Corporate Units at any time on or prior to the
fifth Business Day immediately preceding the Purchase Contract Settlement Date
by (a) depositing with the Collateral Agent Notes having an aggregate principal
amount equal to the aggregate principal amount of the Treasury Securities
comprising part of the Treasury Units and (b) transferring the related Treasury
Units to the Agent accompanied by a notice to the Agent, substantially in the
form of Exhibit D hereto, stating that the Holder has transferred the relevant
amount of Notes to the Collateral Agent and requesting that the Agent instruct
the Collateral Agent to release the Treasury Securities underlying such Treasury
Units, whereupon the Agent shall promptly give such instruction to the
Collateral Agent, substantially in the form of Exhibit C hereto. Upon receipt of
the Notes described in clause (a) above and the instruction described in clause
(b) above, in accordance with the terms of the Pledge Agreement, the Collateral
Agent will release to the Agent, on behalf of the Holder, the Treasury
Securities having a corresponding aggregate principal amount from the Pledge,
free and clear of the Company's security interest therein, and upon receipt
thereof the Agent shall promptly:
(i) cancel the related Treasury Units;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver a
Corporate Units Certificate executed by the Company in accordance with
Section 3.03 evidencing the same number of Purchase Contracts as were
evidenced by the canceled Treasury Units.
Holders of Treasury Units may reestablish Corporate Units only in integral
multiples of 40 Treasury Units for 40 Corporate Units.
In the event a Holder reestablishing Corporate Units pursuant to this
Section 3.14 fails to effect a book-entry transfer of the Treasury Units or
fails to deliver a Treasury Units Certificate(s) to the Agent after depositing
Notes with the Collateral Agent, the Treasury Securities constituting a part of
such Treasury Units shall be held in the name of the Agent or its nominee in
trust for the benefit of such Holder, until such Treasury Units are so
transferred or the Treasury Units Certificate is so delivered, as the case may
be, or, with respect to a Treasury Units Certificate, such Holder provides
evidence satisfactory to the Company and the Agent that such Treasury Units
Certificate has been destroyed, lost or stolen, together with any indemnity that
may be required by the Agent and the Company.
Except as provided in this Section 3.14, for so long as the Purchase
Contract underlying a Treasury Unit remains in effect, such Treasury Unit shall
not be separable into its constituent parts and the rights and obligations of
the Holder of such Treasury Unit in respect of the Treasury Security and
Purchase Contract comprising such Treasury Unit may be acquired, and may be
transferred and exchanged, only as a Treasury Unit.
SECTION 3.15. TRANSFER OF COLLATERAL UPON OCCURRENCE OF TERMINATION EVENT.
Upon the occurrence of a Termination Event and the transfer to the Agent of the
Notes, the appropriate Applicable Ownership Interest of the Treasury Portfolio
or the Treasury Securities, as the case may be, underlying the Corporate Units
and the Treasury Units pursuant to the terms of the Pledge Agreement, the Agent
shall request transfer instructions with respect to such Notes or the
appropriate Applicable Ownership Interest of the Treasury Portfolio or Treasury
Securities, as the case may be, from each Holder by written request mailed to
such Holder at its address as it appears in the Corporate Units Register or the
Treasury Units Register, as the case may be. Upon book-entry transfer of the
Corporate Units or Treasury Units or delivery of a Corporate Units Certificate
or Treasury Units Certificate to the Agent with such transfer instructions, the
Agent shall transfer the Notes, the Applicable Ownership Interest of the
Treasury Portfolio or Treasury Securities, as the case may be, underlying such
Corporate Units or Treasury Units, as the case may be, to such Holder by
book-entry transfer, or other appropriate procedures, in accordance with such
instructions; PROVIDED, HOWEVER, that, to the extent that a Holder of Corporate
Units or Treasury Units 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 instructions. In the event a Holder of Corporate Units or Treasury
Units fails to effect such transfer or delivery, the Notes, the appropriate
Applicable Ownership Interest of the Treasury Portfolio or Treasury Securities,
as the case may be, underlying such Corporate Units or Treasury Units, as the
case may be, and any distributions thereon, shall be held in the name of the
Agent or its nominee in trust for the benefit of such Holder, until such
Corporate Units or Treasury Units are transferred or the Corporate Units
Certificate or Treasury Units Certificate is surrendered or such Holder provides
satisfactory evidence that such Corporate Units Certificate or Treasury Units
Certificate has been destroyed, lost or stolen, together with any indemnity that
may be required by the Agent and the Company.
SECTION 3.16. NO CONSENT TO ASSUMPTION. Each Holder of a Security, by
acceptance thereof, shall be deemed expressly to have withheld any consent to
the assumption under Section 365 of the Bankruptcy Code or otherwise, of the
Purchase Contract by the Company, receiver, liquidator or a person or entity
performing similar functions, its trustee in the event that the Company becomes
the debtor under the Bankruptcy Code or subject to other similar state or
Federal law providing for reorganization or liquidation.
SECTION 3.17. CUSIP NUMBERS. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Agent shall use
"CUSIP" numbers in notices of redemption 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 Company will
promptly notify the Agent of any changes in the "CUSIP" numbers.
ARTICLE IV
THE NOTES
SECTION 4.01. PAYMENT OF DISTRIBUTION; RIGHTS TO DISTRIBUTIONS PRESERVED;
DISTRIBUTION RATE RESET, NOTICE. A distribution on any Note or on the
appropriate Applicable Ownership Interest in 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 Corporate Units Certificate
(or one or more Predecessor Corporate Units Certificates) of which such Note or
the appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, is a part is registered at the close of business on the Record Date
for such Payment Date.
Each Corporate Units Certificate evidencing Notes delivered under this
Agreement upon registration of transfer of or in exchange for or in lieu of any
other Corporate Units Certificate shall carry the rights to distributions
accrued and unpaid, and distributions to accrue, which were or will be carried
by the Notes underlying such other Corporate Units Certificate.
In the case of any Corporate Units with respect to which Cash Settlement of
the underlying Purchase Contract is effected on the Business Day immediately
preceding the Purchase Contract Settlement Date pursuant to prior notice, or
with respect to which Early Settlement of the underlying Purchase Contract is
effected on an Early Settlement Date, or with respect to which Merger Early
Settlement of the underlying Purchase Contract is effected on a Merger Early
Settlement Date or with respect to which a Collateral Substitution is effected,
in each case on a date that is after any Record Date and on or prior to the next
succeeding Payment Date, interest on the Notes or distributions on the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the case
may be, underlying such Corporate Units otherwise payable on such Payment Date
shall be payable on such Payment Date notwithstanding such Cash Settlement,
Early Settlement, Merger 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 Corporate Units 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 Corporate Units with respect to which Cash Settlement, Early
Settlement or Merger Early Settlement of the underlying Purchase Contract is
effected on the Business Day immediately preceding the Purchase Contract
Settlement Date or an Early Settlement Date or a Merger Early Settlement Date,
as the case may be, or with respect to which a Collateral Substitution has been
effected, distributions on the related Notes or on the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, that would
otherwise be payable after the Purchase Contract Settlement Date or Early
Settlement Date shall not be payable hereunder to the Holder of such Corporate
Units; PROVIDED, HOWEVER, that to the extent that such Holder continues to hold
the separated Notes that formerly comprised a part of such Holder's Corporate
Units, such Holder shall be entitled to receive the distributions on such
separated Notes.
The applicable Coupon Rate on the Notes on and after May 17, 2004 will be
reset on the Initial Remarketing Date to the applicable Reset Rate (such Reset
Rate to be in effect on and after May 17, 2004), except in the event of a Failed
Initial Remarketing. In the event of a Failed Initial Remarketing, the
applicable Coupon Rate on the Notes outstanding on and after the Purchase
Contract Settlement Date will be reset on the Secondary Remarketing Date to the
applicable Reset Rate (such Reset Rate to be in effect on and after the Purchase
Contract Settlement Date). On the applicable Reset Announcement Date the Reset
Spread and the Three-Year Benchmark Treasury or Three and One-Quarter Benchmark
Treasury, as applicable, to be used to determine the Reset Rate will be
announced by the Company. On the Business Day immediately following the Reset
Announcement Date, the Note Holders will be notified of such Reset Spread and
Three-Year Benchmark Treasury or Three and One-Quarter Benchmark Treasury, as
applicable, by the Company. Such notice shall be sufficiently given to Holders
of Notes if published in an Authorized Newspaper in The City of New York.
Not later than seven calendar days nor more than 15 calendar days prior to
the Reset Announcement Date, the Company will notify the 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
Corporate Units or Treasury Units of such Reset Announcement Date and, in the
case of a Secondary Remarketing, the procedures to be followed by Holders of
Corporate Units who intend to settle their obligation under the Purchase
Contract with separate cash pursuant to Section 5.04(a) hereof.
SECTION 4.02. NOTICE AND VOTING. Under the terms of the Pledge Agreement,
the Agent will be entitled to exercise the voting and any other consensual
rights pertaining to the Notes pledged with the Collateral Agent but only to the
extent instructed by the Holders as described below. Upon receipt of notice of
any meeting at which holders of Notes are entitled to vote or upon any
solicitation of consents, waivers or proxies of holders of Notes, the Agent
shall, as soon as practicable thereafter, mail to the Holders of Corporate Units
a notice (a) containing such information as is contained in the notice or
solicitation, (b) stating that each Holder on the record date set by the Agent
therefor (which, to the extent possible, shall be the same date as the record
date for determining the holders of Notes entitled to vote) shall be entitled to
instruct the Agent as to the exercise of the voting rights pertaining to the
Notes underlying their Corporate Units and (c) stating the manner in which such
instructions may be given. Upon the written request of the Holders of Corporate
Units on such record date, the Agent shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the instructions set forth in such
requests, the maximum number of Notes as to which any particular voting
instructions are received. In the absence of specific instructions from the
Holder of a Corporate Unit, the Agent shall abstain from voting the Notes
underlying such Corporate Units. The Company hereby agrees, if applicable, to
solicit Holders of Corporate Units to timely instruct the Agent in order to
enable the Agent to vote such Notes.
SECTION 4.03. TAX EVENT REDEMPTION. Upon the occurrence of a Tax Event
Redemption prior to May 17, 2004, or in the event of a Failed Initial
Remarketing, prior to the Purchase Contract Settlement Date, pursuant to the
terms of the Pledge Agreement, the Collateral Agent will apply, out of the
aggregate Redemption Price for the Notes that are components of Corporate Units,
an amount equal to the aggregate Redemption Amount for the Notes that are
components of Corporate Units to purchase on behalf of the Holders of Corporate
Units the Treasury Portfolio and promptly remit the remaining portion of such
Redemption Price to the Agent for payment to the Holders of such Corporate
Units. The Treasury Portfolio will be substituted for the pledged Notes, and
will be held by the Collateral Agent in accordance with the terms of the Pledge
Agreement to secure the obligation of each Holder of a Corporate Unit to
purchase the Common Stock of the Company under the Purchase Contract
constituting a part of such Corporate Units. Following the occurrence of a Tax
Event Redemption prior to May 17, 2004, or, in the event of a Failed Initial
Remarketing, prior to the Purchase Contract Settlement Date, the Holders of
Corporate Units and the Collateral Agent shall have such security interests,
rights and obligations with respect to the Treasury Portfolio as the Holder of
Corporate Units and the Collateral Agent had in respect of the Notes, as the
case may be, subject to the Pledge thereof as provided in Sections 2, 3, 4, 5
and 6 of the Pledge Agreement, and any reference herein or in the Certificates
to the Note shall be deemed to be a reference to such Treasury Portfolio and any
reference herein or in the Certificates to interest on the Notes shall be deemed
to be a reference to corresponding distributions on the Treasury Portfolio. The
Company may cause to be made in any Corporate Units Certificates thereafter to
be issued such change in phraseology and form (but not in substance) as may be
appropriate to reflect the substitution of the Treasury Portfolio for Notes as
collateral.
SECTION 4.04. CUSIP NUMBERS. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Indenture Trustee
shall use "CUSIP" numbers in notices of redemption 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 Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Indenture Trustee and the Agent of any changes in the
"CUSIP" numbers.
ARTICLE V
THE PURCHASE CONTRACTS
SECTION 5.01. PURCHASE OF SHARES OF COMMON STOCK. Each Purchase Contract
shall, unless an Early Settlement has occurred in accordance with Section 5.09
hereof, or a Merger Early Settlement has occurred in accordance with Section
5.10 hereof, obligate the Holder of the related Security to purchase, and the
Company to sell, on the Purchase Contract Settlement Date at a price equal to
the Stated Amount (the "PURCHASE PRICE"), a number of newly issued shares of
Common Stock equal to the Settlement Rate unless, on or prior to the Purchase
Contract Settlement Date, there shall have occurred a Termination Event with
respect to the Security of which such Purchase Contract is a part. The
"SETTLEMENT RATE" is equal to (a) if the Applicable Market Value (as defined
below) is equal to or greater than $ (the "THRESHOLD APPRECIATION Price"),
shares of Common Stock per Purchase Contract, (b) if the Applicable Market Value
is less than the Threshold Appreciation Price but is greater than $ , the number
of shares of Common Stock per Purchase Contract equal to the Stated Amount
divided by the Applicable Market Value and (c) if the Applicable Market Value is
less than or equal to $ , shares of Common Stock per Purchase Contract, in each
case subject to adjustment as provided in Section 5.06 (and in each case rounded
upward or downward to the nearest 1/10,000th of a share). As provided in Section
5.11, fractional shares of Common Stock may, at the Company's discretion, be
issued upon settlement of Purchase Contracts.
The "APPLICABLE MARKET VALUE" means the average of the Closing Price per
share of Common Stock on each of the 20 consecutive Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date
or, for purposes of determining cash payable in lieu of fractional shares in
connection with an Early Settlement, the third Trading Day immediately preceding
the relevant Early Settlement Date. The "CLOSING PRICE" of the Common Stock on
any date of determination means the closing sale price (or, if no closing price
is reported, the last reported sale price) of the Common Stock on The New York
Stock Exchange, Inc. (the "NYSE") on such date or, if the Common Stock is not
listed for trading on the NYSE on any such date, as reported in the composite
transactions for the principal national or regional United States securities
exchange on which the Common Stock is so listed, or if the Common Stock is not
so listed on a United States national or regional securities exchange, as
reported by the Nasdaq National Market or, if the Common Stock is not so
reported, the last quoted bid price for the Common Stock in the over-the-counter
market as reported by the National Quotation Bureau or similar organization, or,
if such bid price is not available, the market value of the Common Stock on such
date as determined by a nationally recognized independent investment banking
firm retained for this purpose by the Company. A "TRADING DAY" means a day on
which the Common Stock (A) is not suspended from trading on any national or
regional securities exchange or association or over-the-counter market at the
close of business and (B) has traded at least once on the national or regional
securities exchange or association or over-the-counter market that is the
primary market for the trading of the Common Stock.
Each Holder of a Corporate Unit or a Treasury Unit, by its acceptance
thereof, irrevocably authorizes the Agent to enter into and perform the related
Purchase Contract on its behalf as its attorney-in-fact (including the execution
of Certificates on behalf of such Holder), agrees to be bound by the terms and
provisions thereof, covenants and agrees to perform its obligations under such
Purchase Contracts, and consents to the provisions hereof, irrevocably
authorizes the Agent as its attorney-in-fact to enter into and perform the
Pledge Agreement on its behalf as its attorney-in-fact, and consents to and
agrees to be bound by the Pledge of the Notes, the Treasury Portfolio or the
Treasury Securities pursuant to the Pledge Agreement; PROVIDED that upon a
Termination Event, the rights of the Holder of such Security under the Purchase
Contract may be enforced without regard to any other rights or obligations. Each
Holder of a Corporate Unit or Treasury Unit, by its acceptance thereof, further
covenants and agrees, that, to the extent and in the manner provided in Section
5.04 and the Pledge Agreement, but subject to the terms thereof, Proceeds of the
Treasury Securities, the Notes or the Treasury Portfolio, as applicable, on the
Purchase Contract Settlement Date shall be paid by the Collateral Agent to the
Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
Proceeds.
Upon registration of transfer of a Certificate, the transferee shall be
bound (without the necessity of any other action on the part of such
transferee), under the terms of this Agreement, the Purchase Contracts
underlying such Certificate and the Pledge Agreement and the transferor shall be
released from the obligations under this Agreement, the Purchase Contracts
underlying the Certificates so transferred and the Pledge Agreement. The Company
covenants and agrees, and each Holder of a Certificate, by its acceptance
thereof, likewise, covenants and agrees, to be bound by the provisions of this
paragraph.
SECTION 5.02. [Reserved]
SECTION 5.03. INITIAL REMARKETING. Unless a Tax Event Redemption has
occurred, the Company shall engage a nationally recognized investment bank (the
"REMARKETING AGENT") pursuant to the Remarketing Agreement to sell the Notes of
Corporate Unit Holders (the "INITIAL REMARKETING") on the third Business Day
immediately preceding May 17, 2004 (the "INITIAL REMARKETING DATE"). 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 Initial Remarketing Date,
the Remarketing Agent of the aggregate principal amount of Notes to be
remarketed. Concurrently, the Collateral Agent, pursuant to the terms of the
Pledge Agreement, will present for remarketing such Notes to the Remarketing
Agent. Upon receipt of such notice from the Agent and such Notes from the
Collateral Agent, the Remarketing Agent will, on the Initial Remarketing Date,
use its commercially reasonable best efforts to remarket such Notes on such date
at a price of approximately 100.25% (but not less than 100%) of the Treasury
Portfolio Purchase Price. If the Remarketing Agent is able to remarket the Notes
at a price equal to or greater than 100% of the Treasury Portfolio Purchase
Price (a "SUCCESSFUL INITIAL REMARKETING"), the portion of the proceeds from
such Successful Initial Remarketing equal to the Treasury Portfolio Purchase
Price will be applied to purchase the Treasury Portfolio. In addition, the
Remarketing Agent may deduct as a remarketing fee ("REMARKETING Fee") an amount
not exceeding 25 basis points (0.25%) of the Treasury Portfolio Purchase Price
from any amount of such proceeds in excess of the Treasury Portfolio Purchase
Price. Any proceeds in excess of those required to pay the Treasury Portfolio
Purchase Price and the Remarketing Fee will be remitted to the Agent for payment
to the Holders of the related Corporate Units. Corporate Units Holders whose
Notes are so remarketed will not otherwise be responsible for the payment of any
Remarketing Fee in connection therewith. The Treasury Portfolio will be
substituted for the Notes of Corporate Unit Holders and will be pledged to the
Collateral Agent to secure the Corporate Unit Holders' obligation to pay the
Purchase Price for the Common Stock under the related Purchase Contracts on the
Purchase Contract Settlement Date. Following the occurrence of a Successful
Initial Remarketing, the Holders of Corporate Units and the Collateral Agent
shall have such security interests, rights and obligations with respect to the
Treasury Portfolio as the Holder of Corporate Units and the Collateral Agent had
in respect of the Notes, as the case may be, subject to the Pledge thereof as
provided in Sections 2, 3, 4, 5 and 6 of the Pledge Agreement, and any reference
herein or in the Corporate Units Certificates to the Note shall be deemed to be
a reference to such Treasury Portfolio and any reference herein or in the
Corporate Units Certificates to interest on the Notes shall be deemed to be a
reference to corresponding distributions on the Treasury Portfolio. The Company
may cause to be made in any Corporate Units Certificates thereafter to be issued
such change in phraseology and form (but not in substance) as may be appropriate
to reflect the substitution of the Treasury Portfolio for Notes as collateral.
If, in spite of using its reasonable efforts, the Remarketing Agent cannot
remarket the related Notes (other than to the Company) of such Holders of
Corporate Units at a price equal to or greater than 100% of the Treasury
Portfolio Purchase Price, the remarketing will be deemed to have failed (a
"FAILED INITIAL REMARKETING"). The Company will cause a notice of a Failed
Initial Remarketing to be published on the second Business Day immediately
preceding May 17, 2004 in a daily newspaper in the English language of general
circulation in The City of New York, which is expected to be The Wall Street
Journal.
SECTION 5.04. PAYMENT OF PURCHASE PRICE; SECONDARY REMARKETING. (a) (i)
Unless a Tax Event Redemption, Successful Initial Remarketing, Termination
Event, Early Settlement or Merger Early Settlement has occurred, each Holder of
a Corporate Unit may pay in cash ("CASH SETTLEMENT") the Purchase Price for the
shares of Common Stock to be purchased pursuant to a Purchase Contract if such
Holder notifies the Agent by use of a notice in substantially the form of
Exhibit E hereto of its intention to make a Cash Settlement. Such notice shall
be made on or prior to 5:00 p.m., New York City time, on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date. The Agent shall
promptly notify the Collateral Agent of the receipt of such a notice from a
Holder intending to make a Cash Settlement.
(ii) A Holder of a Corporate Unit who has so notified the Agent
of its intention to make a Cash Settlement is required to pay the
Purchase Price to the Collateral Agent prior to 11:00 a.m., New York
City time, on the Business Day immediately preceding the 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
Company. Any cash received by the Collateral Agent will be invested
promptly by the Collateral Agent in Permitted Investments and paid to
the Company on the Purchase Contract Settlement Date in settlement of
the Purchase Contract in accordance with the terms of this Agreement
and the Pledge Agreement. Any funds received by the 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 Holder.
(iii) If a Holder of a Corporate Unit fails to notify the Agent
of its intention to make a Cash Settlement in accordance with
paragraph (a)(i) above, such failure shall constitute an event of
default and the Holder shall be deemed to have consented to the
disposition of the Pledged Notes pursuant to the Secondary Remarketing
as described in paragraph (b) below. If a Holder of a Corporate Unit
does notify the Agent as provided in paragraph (a)(i) above of its
intention to pay the Purchase Price in cash, but fails to make such
payment as required by paragraph (a)(ii) above, such failure shall
also constitute a default; however, the Notes of such a Holder will
not be remarketed but instead the Collateral Agent, for the benefit of
the Company, will exercise its rights as a secured party with respect
to such Notes, including but not limited to those rights specified in
paragraph (c) below.
(b) Unless a Tax Event Redemption or a Successful Initial Remarketing
has occurred, the Notes of Corporate Unit Holders who have not notified the
agent of their intention to effect a Cash Settlement as provided in
paragraph (a)(i) above will be sold by the Remarketing Agent (the
"SECONDARY REMARKETING") on the third Business Day immediately preceding
the Purchase Contract Settlement Date (the "SECONDARY REMARKETING DATE").
The Agent shall notify, by 10:00 a.m., New York City time, on the Business
Day immediately preceding the Secondary Remarketing Date, the Remarketing
Agent of the aggregate principal amount of Notes to be remarketed.
Concurrently, the Collateral Agent, pursuant to the terms of the Pledge
Agreement, will present for remarketing such Notes to the Remarketing
Agent. Upon receipt of such notice from the Agent and such Notes from the
Collateral Agent, the Remarketing Agent will, on the Secondary Remarketing
Date, use its commercially reasonable best efforts to remarket such Notes
on such date at a price of approximately 100.25% (but not less than 100%)
of the aggregate principal amount of such Notes. If the Remarketing Agent
is able to remarket the Notes at a price equal to or greater than 100% of
the aggregate principal amount of Notes (a "SUCCESSFUL SECONDARY
REMARKETING"), the Remarketing Agent will remit the entire amount of the
proceeds from such Successful Secondary Remarketing to the Collateral
Agent; PROVIDED, HOWEVER, that the Remarketing Agent may deduct as the
Remarketing Fee an amount not exceeding 25 basis points (0.25%) of the
aggregate principal amount of the remarketed Notes from any amount of the
proceeds of a Successful Secondary Remarketing in excess of the aggregate
principal amount of the remarketed Notes. The portion of the proceeds equal
to the aggregate principal amount of Notes will automatically be applied by
the Collateral Agent, in accordance with the Pledge Agreement, to satisfy
in full such Corporate Units holders' obligations to pay the Purchase Price
for the Common Stock under the related Purchase Contracts on the Purchase
Contract Settlement Date. Any proceeds in excess of those required to pay
the Purchase Price and the Remarketing Fee will be remitted to the Agent
for payment to the Holders of the related Corporate Units. Corporate Units
Holders whose Notes are so remarketed will not otherwise be responsible for
the payment of any Remarketing Fee in connection therewith. If, in spite of
using its commercially reasonable best efforts, the Remarketing Agent
cannot remarket the related Notes (other than to the Company) of such
Holders of Corporate Units at a price not less than 100% of the aggregate
principal amount of the Notes, the remarketing will be deemed to have
failed (a "FAILED SECONDARY REMARKETING") and 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 Notes,
including those actions specified in paragraph (c) below. The Company will
cause a notice of such Failed Secondary Remarketing to be published on the
second Business Day immediately preceding the Purchase Contract Settlement
Date in a daily newspaper in the English language of general circulation in
The City of New York, which is expected to be The Wall Street Journal.
(c) With respect to any Notes beneficially owned by Holders who have
elected Cash Settlement but failed to deliver cash as required in (a)(ii)
above, or with respect to Notes which are subject to a Failed Secondary
Remarketing, the Collateral Agent for the benefit of the Company reserves
all of its rights as a secured party with respect thereto and, subject to
applicable law and paragraph (h) below, may, among other things, (i) retain
the Notes in full satisfaction of the Holders obligations under the
Purchase Contracts or (ii) sell the Notes in one or more public or private
sales.
(d) Unless a Termination Event, Early Settlement or Merger Early
Settlement has occurred, the Purchase Contract underlying each Treasury
Unit and, if a Tax Event Redemption or a Successful Initial Remarketing has
occurred, each Corporate Unit will be settled with the Proceeds at maturity
of the Treasury Security or the Applicable Ownership Interest (as defined
in clause (A) of the definition of such term) of the Treasury Portfolio, as
applicable. Upon receipt of such Proceeds, the Collateral Agent will invest
the Proceeds promptly in Permitted Investments and pay the Proceeds to the
Company on the 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 Holder.
(e) Any distribution to Holders of excess funds and interest described
above, shall be payable at the New York Office maintained for that purpose
or, at the option of the Holder, by check mailed to the address of the
Person entitled thereto at such address as it appears on the Register.
(f) Unless a Holder settles the underlying Purchase Contract through
the Early Settlement in the manner described in Section 5.09, the Company
shall not be obligated to issue any shares of Common Stock in respect of a
Purchase Contract or deliver any certificate therefor to the Holder unless
it shall have received payment in full of the Purchase Price for the shares
of Common Stock to be purchased thereunder in the manner set forth in this
Section 5.04.
(g) Upon Cash Settlement of any Purchase Contract, (i) the Collateral
Agent will in accordance with the terms of the Pledge Agreement cause the
pledged Notes 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 instructions provided
by the Holder thereof, transfer such Notes (or, if no such instructions are
given to the Agent by the Holder, the Agent shall hold such Notes and any
distributions thereon in the name of the Agent or its nominee in trust for
the benefit of such Holder).
(h) The obligations of the Holders to pay the Purchase Price are
nonrecourse obligations and except to the extent paid by Early Settlement
or Merger Early Settlement are payable solely out of any Cash Settlement or
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 Collateral and the Purchase Price.
SECTION 5.05. ISSUANCE OF SHARES OF COMMON STOCK. Unless a Termination
Event, an Early Settlement or a Merger Early Settlement shall have occurred, on
the Purchase Contract Settlement Date, upon its receipt of payment in full of
the Purchase Price for the shares of Common Stock purchased by the Holders
pursuant to the foregoing provisions of this Article and subject to Section
5.06(c), 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 shares of Common
Stock, together with any dividends or distributions for which both a record date
and payment date for such dividend or distribution has occurred on or after the
Purchase Contract Settlement Date, being hereinafter referred to as the
"PURCHASE CONTRACT SETTLEMENT Fund") to which the Holders are entitled
hereunder. Subject to the foregoing, upon surrender of a Certificate to the
Agent on or after the Purchase Contract Settlement Date, together with
settlement instructions thereon duly completed and executed, the Holder of such
Certificate shall be entitled to receive in exchange therefor a certificate
representing that number of whole shares of Common Stock which such Holder is
entitled to receive pursuant to the provisions of this Article V (after taking
into account all Securities then held by such Holder) together with fractional
shares of Common Stock or cash in lieu of fractional shares as provided in
Section 5.11 and any dividends or distributions with respect to such shares
constituting part of the Purchase Contract Settlement Fund, but without any
interest thereon, and the Certificate so surrendered shall forthwith be
canceled. Such shares shall be registered in the name of the Holder or the
Holder's designee as specified in the settlement instructions provided by the
Holder to the Agent. If any shares of Common Stock issued in respect of a
Purchase Contract are to be registered to a Person other than the Person in
whose name the Certificate evidencing such Purchase Contract is registered, no
such registration shall be made unless the Person requesting such registration
has paid any transfer and other taxes required by reason of such registration in
a name other than that of the registered Holder of the Certificate evidencing
such Purchase Contract or has established to the satisfaction of the Company
that such tax either has been paid or is not payable.
SECTION 5.06. 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, as in effect at the opening of business on the day following
the date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be increased by dividing such Settlement
Rate by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (1), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
any shares issuable in respect of any scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company will not pay any dividend or
make any distribution on shares of Common Stock held in the treasury of the
Company.
(2) In case the Company shall issue rights, options or warrants
to all holders of its Common Stock (not being available on an
equivalent basis to Holders of the Securities upon settlement of the
Purchase Contracts underlying such Securities) entitling them, for a
period expiring within 45 days after the record date for the
determination of stockholders entitled to receive such rights, options
or warrants, to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price per share of the
Common Stock on the date fixed for the determination of stockholders
entitled to receive such rights, options or warrants (other than
pursuant to a dividend reinvestment plan or share purchase plan), the
Settlement Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by
dividing such Settlement Rate by a fraction of which 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 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 the
denominator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination plus
the number of shares of Common Stock so offered for subscription or
purchase, such increase to become effective immediately after the
opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of
shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include any
shares issuable in respect of any scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company shall not issue any
such rights, options or warrants in respect of shares of Common Stock
held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common Stock,
the Settlement Rate in effect at the opening of business on the day
following the day upon which such subdivision or split becomes
effective shall be proportionately increased, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a
smaller number of shares of Common Stock, the Settlement Rate in
effect at the opening of business on the day following the day upon
which such combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may be, to become
effective immediately after the opening of business on the day
following the day upon which such subdivision, split or combination
becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness, shares of capital stock, securities, cash or other
property (but excluding any rights or warrants referred to in
paragraph (2) of this Section, any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in
paragraph (1) of this Section), the Settlement Rate shall be increased
so that the same shall equal the rate determined by dividing the
Settlement Rate in effect immediately prior to the close of business
on the date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which the numerator shall
be the Current Market Price per share of the 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)
on such date of the portion of the evidences of indebtedness, shares
of capital stock, securities, cash or other property so distributed
applicable to one share of Common Stock and the denominator shall be
such Current Market Price per share of the 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
stockholders entitled to receive such distribution. In any case in
which this paragraph (4) is applicable, paragraph (2) of this Section
shall not be applicable.
(5) In case the Company shall, (I) by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding (i) any
cash that is distributed in a Reorganization Event to which Section
5.06(c) applies or (ii) cash that is distributed 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 and in respect of which no adjustment
pursuant to this paragraph (5) or paragraph (6) of this Section has
been made and (III) the aggregate of any cash plus the fair market
value, as of the expiration of the applicable tender or exchange offer
referred to below (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution), of consideration payable in respect of any tender or
exchange offer (other than consideration payable in respect of any
odd-lot tender offer) by the Company or any of its subsidiaries for
all or any portion of the Common Stock concluded within the 12 months
preceding the date of payment of the distribution described in clause
(I) above and in respect of which no adjustment pursuant to this
paragraph (5) or paragraph (6) of this Section has been made, exceeds
15% 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 times the number of shares
of Common Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date for
determination, the Settlement Rate shall be increased so that the same
shall equal the rate determined by dividing the Settlement Rate in
effect immediately prior to the close of business on the date fixed
for determination of the stockholders entitled to receive such
distribution by a fraction (i) the numerator of which shall be equal
to the Current Market Price per share of the Common Stock on the date
fixed for such determination less an amount equal to the quotient of
(x) the combined amount distributed or payable in the transactions
described in clauses (I), (II) and (III) above and (y) the number of
shares of Common Stock outstanding on such date for determination and
(ii) the denominator of which shall be equal to the Current Market
Price per share of the Common Stock on such date for determination.
(6) In case (I) a tender or exchange offer made by the Company or
any subsidiary of the Company for all or any portion of the Common
Stock shall expire and such tender or exchange offer (as amended upon
the expiration thereof) shall require the payment to stockholders
(based on the acceptance (up to any maximum specified in the terms of
the tender or exchange offer) of Purchased Shares) of an aggregate
consideration having a fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in
a Board Resolution) that combined together with (II) the aggregate of
the cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
Board Resolution), as of the expiration of such tender or exchange
offer, of consideration payable in respect of any other tender or
exchange offer (other than consideration payable in respect of any
odd-lot tender offer) by the Company or any subsidiary of the Company
for all or any portion of the Common Stock expiring within the 12
months preceding the expiration of such tender or exchange offer and
in respect of which no adjustment pursuant to paragraph (5) of this
Section or this paragraph (6) has been made and (III) the aggregate
amount of any distributions to all holders of the Company's 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 or this paragraph
(6) has been made, exceeds 15% of the product of the Current Market
Price per share of the Common Stock as of the last time (the
"EXPIRATION TIME") tenders could have been made pursuant to such
tender or exchange offer (as it may be amended) times the number of
shares of Common Stock outstanding (including any tendered shares) on
the Expiration Time, then, and in each such case, immediately prior to
the opening of business on the day after the date of the Expiration
Time, the Settlement Rate shall be adjusted so that the same shall
equal the rate determined by dividing the Settlement Rate immediately
prior to the close of business as 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 the Common Stock as of the
Expiration Time and (II) the number of shares of Common Stock
outstanding (including any tendered shares) as of the Expiration Time
less (B) the amount of cash plus the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders
based on the transactions described in clauses (I), (II) and (III)
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 the 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 5.06(b)
applies) shall be deemed to involve (a) a distribution of such
securities other than Common Stock to all holders of Common Stock (and
the effective date of such reclassification shall be deemed to be "the
date fixed for the determination of stockholders entitled to receive
such distribution" and the "date fixed for such determination" within
the meaning of paragraph (4) of this Section), and (b) a subdivision,
split or combination, as the case may be, of the number of shares of
Common Stock outstanding immediately prior to such reclassification
into the number of shares of Common Stock outstanding immediately
thereafter (and the effective date of such reclassification shall be
deemed to be "the day upon which such subdivision or split becomes
effective" or "the day upon which such combination becomes effective,"
as the case may be, and "the day upon which such subdivision, split or
combination becomes effective" within the meaning of paragraph (3) of
this Section).
(8) The "CURRENT MARKET PRICE " per share of Common Stock on any
day means the average of the daily Closing Prices for the five
consecutive Trading Days selected by the Company commencing not more
than 30 Trading Days before, and ending not later than, the earlier of
the day in question and the day before the "ex date" with respect to
the issuance or distribution requiring such computation. For purposes
of this paragraph, the term "ex date", when used with respect to any
issuance or distribution, shall mean the first date on which the
Common Stock trades regular way on such exchange or in such market
without the right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate, shall be calculated
to the nearest 1/10,000th of a share of Common Stock (or if there is
not a nearest 1/10,000th of a share to the next lower 1/10,000th of a
share). No adjustment in the Settlement Rate shall be required unless
such adjustment would require an increase or decrease of at least one
percent therein; 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 5.06(a), an
adjustment shall also be made to the Applicable Market Value solely to
determine which of clauses (a), (b) or (c) of the definition of
Settlement Rate in Section 5.01 will apply on the Purchase Contract
Settlement Date. Such adjustment shall be made by multiplying the
Applicable Market Value by a fraction of which the numerator shall be
the Settlement Rate immediately after such adjustment pursuant to
paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section
5.06(a) and the denominator shall be the Settlement Rate immediately
before such adjustment; PROVIDED, HOWEVER, that if such adjustment to
the Settlement Rate is required to be made pursuant to the occurrence
of any of the events contemplated by paragraph (1), (2), (3), (4),
(5), (6), (7) or (10) of this Section 5.06(a) during the period taken
into consideration for determining the Applicable Market Value,
appropriate and customary adjustments shall be made to the Settlement
Rate.
(10) The Company may make such increases in the Settlement Rate,
in addition to those required by this Section, as it considers to be
advisable in order to avoid or diminish any income tax to any holders
of shares of Common Stock resulting from any dividend or distribution
of stock or issuance of rights or warrants to purchase or subscribe
for stock or from any event treated as such for income tax purposes or
for any other reason.
(b) ADJUSTMENT FOR CONSOLIDATION, MERGER OR OTHER REORGANIZATION
EVENT. In the event of (i) any consolidation or merger of the Company with
or into another Person (other than a merger or consolidation in which the
Company is the continuing corporation and in which the 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"), the Settlement Rate will be adjusted to
provide that each Holder of Securities will receive on the Purchase
Contract Settlement Date with respect to each Purchase Contract forming a
part thereof (or upon any Early Settlement), the kind and amount of
securities, cash and other property receivable upon such Reorganization
Event (without any interest thereon, and without any right to dividends or
distribution thereon which have a record date that is prior to the Purchase
Contract Settlement Date) by a Holder of the number of shares of Common
Stock issuable on account of each Purchase Contract if the Purchase
Contract Settlement Date had occurred immediately prior to such
Reorganization Event assuming such Holder of Common Stock is not a Person
with which the Company consolidated or into which the Company merged or
which merged into the Company or to which such sale or transfer was made,
as the case may be (any such Person, a "CONSTITUENT PERSON"), or an
Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Stock held by Affiliates of the
Company and non-affiliates and such Holder failed to exercise its 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 ("nonelecting 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 nonelecting
share shall be deemed to be the kind and amount so receivable per share by
the nonelecting shares). In the event of such a Reorganization Event
described in clauses (i)-(iv) above, the Person formed by such
consolidation, merger or exchange or the Person which acquires or leases
the assets of the Company or, in the event of a liquidation or dissolution
of the Company, the Company or a liquidating trust created in connection
therewith, shall execute and deliver to the Agent an agreement supplemental
hereto providing that the Holders of each Outstanding Security shall have
the rights provided by this Section 5.06. Such supplemental agreement shall
provide for adjustments which, for events subsequent to the effective date
of such supplemental agreement, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section. The above
provisions of this Section shall similarly apply to successive
Reorganization Events.
(c) All calculations and determinations pursuant to this Section 5.06
shall be made by the Company or its agent and the Purchase Contract Agent
shall have no responsibility with respect thereto.
SECTION 5.07. NOTICE OF ADJUSTMENTS AND CERTAIN OTHER EVENTS. (a)
Whenever the Settlement Rate is adjusted as herein provided, the Company
shall:
(i) forthwith compute the Settlement Rate in accordance with
Section 5.06 and prepare and transmit to the Agent, within ten
Business Days following the occurrence of any event that requires an
adjustment to the Settlement Rate pursuant to Section 5.06, an
Officer's 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) within 10 Business Days following the occurrence of an event
that requires an adjustment to the Settlement Rate pursuant to Section
5.06 (or if the Company is not aware of such occurrence, as soon as
practicable after becoming so aware), provide a written notice to the
Holders of the Securities of the occurrence of such event and a
statement in reasonable detail setting forth the method by which the
adjustment to the Settlement Rate was determined and setting forth the
adjusted Settlement Rate.
(b) The 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 shares of Common Stock, or of any securities or property,
which may at the time be issued or delivered with respect to any Purchase
Contract; and the Agent makes no representation with respect thereto. The
Agent shall not be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock pursuant to a Purchase
Contract or to comply with any of the duties, responsibilities or covenants
of the Company contained in this Article.
SECTION 5.08. TERMINATION EVENT; NOTICE. The Purchase Contracts and all
obligations and rights of the Company and the Holders thereunder, including,
without limitation, 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, on or prior to
the Purchase Contract Settlement Date, a Termination Event shall have occurred.
Upon and after the occurrence of a Termination Event, the Securities shall
thereafter represent the right to receive the Notes or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
forming a part of such Securities in the case of Corporate Units, or Treasury
Securities in the case of Treasury Units, in accordance with the provisions of
Section 4.03 of the Pledge Agreement; PROVIDED, HOWEVER, that, to the extent
that a Holder of Corporate Units or Treasury Units 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 instructions. Upon the occurrence of a Termination
Event, the Company shall promptly but in no event later than two Business Days
thereafter give written notice to the Agent, the Collateral Agent and to the
Holders, at their addresses as they appear in the Register.
SECTION 5.09. EARLY SETTLEMENT. (a) Subject to and upon compliance with the
provisions of this Section 5.09 and unless a Tax Event Redemption or a
Successful Initial Remarketing has occurred, at the option of the Holder
thereof, Purchase Contracts underlying Securities having an aggregate Stated
Amount equal to $1,000 or an integral multiple thereof may be settled early
("EARLY SETTLEMENT") in the case of Corporate Units on or prior to the fifth
Business Day immediately preceding the Purchase Contract Settlement Date and in
the case of Treasury Units on or prior to the second Business Day immediately
preceding the Purchase Contract Settlement Date, in each case, as provided
herein. In order to exercise the right to effect Early Settlement with respect
to any Purchase Contracts, the Holder of the Certificate evidencing Securities
shall deliver such Certificate to the Agent at the Corporate Trust Office or the
New York Office duly endorsed for transfer to the Company or in blank with the
form of Election to Settle Early on the reverse thereof duly completed and
accompanied by payment (payable to the Company) in immediately available funds
in an amount (the "EARLY SETTLEMENT AMOUNT") equal to the product of (i) the
Stated Amount times (ii) the number of Purchase Contracts with respect to which
the Holder has elected to effect Early Settlement. No payment or adjustment
shall be made upon Early Settlement of any Purchase Contract on account of any
dividends on the Common Stock issued upon such Early Settlement. If the
foregoing requirements are first satisfied with respect to Purchase Contracts
underlying any Securities at or prior to 5:00 p.m., New York City time, on a
Business Day, such day shall be the "EARLY SETTLEMENT DATE " with respect to
such Securities and if such requirements are first satisfied after 5:00 p.m.,
New York City time, on a Business Day or on a day that is not a Business Day,
the "EARLY SETTLEMENT DATE" with respect to such Securities shall be the next
succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities and payment of any transfer or similar taxes payable by
such Holder in connection with the issuance of the related Common Stock to
any person other than such Holder, the Company shall issue, and the Holder
shall be entitled to receive, shares of newly issued Common Stock on
account of each Purchase Contract as to which Early Settlement is effected
(the "EARLY SETTLEMENT RATE"). The Early Settlement Rate shall be adjusted
in the same manner and at the same time as the Settlement Rate is adjusted.
As promptly as practicable after Early Settlement of Purchase Contracts in
accordance with the provisions of this Section 5.09, 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 (including
fractional shares, if the Company elects to issue such fractional shares,
as provided in Section 5.11) of Common Stock issuable upon such Early
Settlement together with payment in lieu of any fraction of a share, as
provided in Section 5.11.
(c) No later than the third Business Day after the applicable Early
Settlement Date the Company shall cause (i) the shares of Common Stock
issuable upon Early Settlement of Purchase Contracts to be issued and
delivered, and (ii) the related Notes, in the case of Corporate Units, or
the related Treasury Securities, in the case of Treasury Units, to be
released from the Pledge by the Collateral Agent and transferred, in each
case to the Agent for delivery to the Holder thereof or its designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of shares of Common Stock from the Company and the Notes 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 applicable form of Election to Settle Early on
the reverse of the Certificate evidencing the related Securities, (i)
transfer to the Holder the Notes 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 (including
fractional shares, if the Company elects to issue such fractional shares,
as provided in Section 5.11) of Common Stock issuable upon such Early
Settlement together with payment in lieu of any fraction of a share, as
provided in Section 5.11.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the
Agent shall authenticate, countersign and deliver to the Holder thereof, at
the expense of the Company, a Certificate evidencing the Securities as to
which Early Settlement was not effected.
SECTION 5.10. EARLY SETTLEMENT UPON MERGER. (a) In the event of a
merger or consolidation of the Company of the type described in clause (i)
of Section 5.06(b) in which the Common Stock outstanding immediately prior
to such merger or consolidation is exchanged for consideration consisting
of at least 30% cash or cash equivalents (any such event a " CASH MERGER"),
then the Company (or the successor to the Company hereunder) shall be
required to offer the Holder of each Security the right to settle the
Purchase Contract underlying such Security prior to the Purchase Contract
Settlement Date ("MERGER EARLY SETTLEMENT") as provided herein. On or
before the fifth Business Day after the consummation of a Cash Merger, the
Company or, at the request and expense of the Company, the Purchase
Contract Agent, shall give all Holders notice of the occurrence of the Cash
Merger and of the right of Merger Early Settlement arising as a result
thereof. The Company shall also deliver a copy of such notice to the
Purchase Contract Agent and the Collateral Agent. Each such notice shall
contain: (i) the date, which shall be not less than 20 nor more than 30
calendar days after the date of such notice, on which the Merger Early
Settlement will be effected (the "MERGER EARLY SETTLEMENT DATE"); (ii) the
date, which shall be three Business Days prior to the Merger Early
Settlement Date, by which the Merger Early Settlement right must be
exercised; (iii) the Settlement Rate in effect as a result of such Cash
Merger and the kind and amount of securities, cash and other property
receivable by the Holder upon settlement of each Purchase Contract pursuant
to Section 5.06(b), provided that, for purposes of determining the
Settlement Rate in connection with a Merger Early Settlement, "APPLICABLE
MARKET VALUE" shall mean the last reported sale price of the Common Stock
immediately prior to the closing of the related Cash Merger; (iv) a
statement to the effect that all or a portion of the Purchase Price payable
by the Holder to settle the Purchase Contract will be offset against the
amount of cash so receivable upon exercise of Merger Early Settlement, as
applicable; and (v) the instructions a Holder must follow to exercise the
Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall
deliver to the Purchase Contract Agent at the Corporate Trust Office on or
one Business Day before the Merger Settlement Date, at 5:00 p.m., New York
City time the Certificate(s) evidencing the Units with respect to which the
Merger Early Settlement right is being exercised duly endorsed for transfer
to the Company or in blank with the form of Election to Settle Early on the
reverse thereof duly completed and accompanied by payment (payable to the
Company in immediately available funds in an amount equal to the Early
Settlement Amount less the amount of cash that otherwise would be
deliverable by the Company or its successor upon settlement of the Purchase
Contract in lieu of Common Stock pursuant to Section 5.04(b) and as
described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date the Company shall deliver or
cause to be delivered (i) the net cash, securities and other property to be
received by such exercising Holder, equal to the Settlement Rate as
adjusted pursuant to Section 5.06, in respect of the number of Purchase
Contracts for which such Merger Early Settlement right was exercised, and
(ii) the Pledged Notes or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, in the case of Corporate Units,
or Pledged Treasury Securities, in the case of Treasury Units, to be
released from the Pledge by the Collateral Agent and transferred, in each
case, to the Purchase Contract Agent for delivery to the Holder thereof or
its designee. In the event a Merger Early Settlement right shall be
exercised by a Holder in accordance with the terms hereof, all references
herein to Purchase Contract Settlement Date shall be deemed to refer to
such Merger Early Settlement Date.
(d) Upon Merger Early Settlement of any Purchase Contracts, and
subject to receipt of such net cash, securities or other property from the
Company and the Pledged Notes or the appropriate Applicable Ownership
Interest of the Treasury Portfolio or Pledged Treasury Securities, as the
case may be, from the Collateral Agent, as applicable, the Purchase
Contract Agent shall, in accordance with the instructions provided by the
Holder thereof on the applicable form of Election to Settle Early on the
reverse of the Certificate evidencing the related Units, (i) transfer to
the Holder the Pledged Notes, the appropriate Applicable Ownership Interest
of the Treasury Portfolio or the Pledged Treasury Securities, as the case
may be, forming a part of such Securities, and (ii) deliver to the Holder
such net cash, securities or other property issuable upon such Merger Early
Settlement together with payment, if any, in lieu of any fraction of a
share, as provided in Section 5.11.
(e) In the event that Merger Early Settlement is effected with respect
to Purchase Contracts underlying less than all the Units evidenced by a
Certificate, upon such Merger Early Settlement the Company (or the
successor to the Company hereunder) shall execute and the Purchase Contract
Agent shall authenticate, countersign and deliver to the Holder thereof, at
the expense of the Company, a Certificate evidencing the Units as to which
Merger Early Settlement was not effected.
SECTION 5.11. FRACTIONAL SHARES. At the Company's sole discretion,
fractional shares or scrip representing fractional shares of Common Stock may be
issued or delivered upon settlement on the Purchase Contract Settlement Date or
upon Early Settlement of any Purchase Contracts. If Certificates evidencing more
than one Purchase Contract shall be surrendered for settlement at one time by
the same Holder, the number of full shares of Common Stock which shall be
delivered upon settlement shall be computed on the basis of the aggregate number
of Purchase Contracts evidenced by the Certificates so surrendered. Instead of
any fractional share of Common Stock which would otherwise be deliverable upon
settlement of any Purchase Contracts on the Purchase Contract Settlement Date or
upon Early Settlement, the Company, through the Agent, may 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 5.11 in a timely manner.
SECTION 5.12. CHARGES AND TAXES. The Company will pay all stock transfer
and similar taxes attributable to the initial issuance and delivery of the
shares of Common Stock pursuant to the Purchase Contracts; PROVIDED, HOWEVER,
that the Company shall not be required to pay any such tax or taxes which may be
payable in respect of any exchange of or substitution for a Certificate
evidencing a Security or any issuance of a share of Common Stock in a name other
than that of the registered Holder of a Certificate surrendered in respect of
the Securities evidenced thereby, other than in the name of the 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.
ARTICLE VI
REMEDIES
SECTION 6.01. UNCONDITIONAL RIGHT OF HOLDERS TO PURCHASE COMMON STOCK.
Unless a Termination Event shall have occurred, the Holder of any Corporate
Units or Treasury Units shall have the right, which is absolute and
unconditional, to purchase Common Stock pursuant to such Purchase Contract and
to institute suit for the enforcement of such right to purchase Common Stock,
and such right shall not be impaired without the consent of such Holder.
SECTION 6.02. RESTORATION OF RIGHTS AND REMEDIES. If any Holder has
instituted any proceeding to enforce any right or remedy under this Agreement
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company and such Holder shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of such Holder shall continue as though no
such proceeding had been instituted.
SECTION 6.03. 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 6.04. DELAY OR OMISSION NOT WAIVER. No delay or omission of any
Holder to exercise any right or remedy upon a default shall impair any such
right or remedy or constitute a waiver of any such right. Every right and remedy
given by this Article or by law to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by such Holders.
SECTION 6.05. UNDERTAKING FOR COSTS. All parties to this Agreement agree,
and each Holder of Corporate Units or Treasury Units, by its acceptance of such
Corporate Units or Treasury Units shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Agreement, or in any suit against the Agent for any action
taken, suffered or omitted by it as Agent, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; PROVIDED
that the provisions of this Section shall not apply to any suit instituted by
the Company, to any suit instituted by the Agent, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of interest on any Notes on or after the respective Payment Date
therefor in respect of any Security held by such Holder, or for enforcement of
the right to purchase shares of Common Stock under the Purchase Contracts
constituting part of any Security held by such Holder.
SECTION 6.06. WAIVER OF STAY OR EXTENSION LAWS. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Agreement; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the 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 7.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a)(1) The Agent
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
against the Agent; and
(2) 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, but in
the case of any certificates or opinions which by any provision hereof
are specifically required to be furnished to the Agent, the Agent
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Agreement, but need not
confirm or investigate the accuracy of mathematical calculations
stated therein.
(b) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct or bad faith, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that
the Agent was negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of
this Section.
(d) The Agent is authorized to execute and deliver the Pledge
Agreement in its capacity as Agent.
SECTION 7.02. NOTICE OF DEFAULT. Within 30 days after the occurrence of any
default by the Company hereunder of which a Responsible Officer of the Agent has
actual knowledge, the Agent shall transmit by mail to the Company and the
Holders of Securities, as their names and addresses appear in the Register,
notice of such default hereunder, unless such default shall have been cured or
waived.
SECTION 7.03. CERTAIN RIGHTS OF AGENT. Subject to the provisions of Section
7.01:
(a) the Agent may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officer's Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Agent (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an officer's certificate of the Company;
(d) the Agent may consult with counsel of its selection and the advice
of such counsel or any opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Agent, in its discretion, may make reasonable further
inquiry or investigation into such facts or matters related to the
execution, delivery and performance of the Purchase Contracts as it may see
fit, and, if the Agent shall determine to make such further inquiry or
investigation, it shall be given a reasonable opportunity to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(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.
SECTION 7.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The
recitals contained herein and in the Certificates shall be taken as the
statements of the Company and the Agent assumes no responsibility for their
accuracy. The Agent makes no representations as to the validity or sufficiency
of either this Agreement or of the 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 Purchase Contracts.
SECTION 7.05. MAY HOLD SECURITIES. Any Registrar or any other agent of the
Company, or the Agent and its Affiliates, in their individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, the Collateral Agent or any other Person with the same rights
it would have if it were not Registrar or such other agent, or the Agent.
SECTION 7.06. 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
expressly provided herein or as otherwise agreed in writing with the Company.
SECTION 7.07. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) to pay to the Agent from time to time such compensation for all
services rendered by it hereunder as the parties shall agree from time to
time;
(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 (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, wilful
misconduct or bad faith; and
(3) to indemnify the Agent and any predecessor Agent for, and to hold
it harmless against, any loss, liability or expense, including taxes (other
than taxes based upon, measured by or determined by the income of the
Agent) incurred without negligence, wilful misconduct or bad faith on its
part, arising out of or in connection with the acceptance or administration
of its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The provisions of this Section shall survive the termination of this
Agreement.
SECTION 7.08. CORPORATE AGENT REQUIRED; ELIGIBILITY. There shall at all
times be an Agent hereunder which shall be a corporation organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to exercise corporate trust
powers, having (or being a subsidiary 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 an 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. The provisions of
this Section shall survive the termination of this Agreement.
SECTION 7.09. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the Agent and no appointment of a successor Agent
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Agent in accordance with the applicable
requirements of Section 7.10.
(b) The Agent may resign at any time by giving written notice thereof
to the Company 60 days prior to the effective date of such resignation. If
the instrument of acceptance by a successor Agent required by Section 7.10
shall not have been delivered to the Agent within 30 days after the giving
of such notice of resignation, the resigning Agent may petition any court
of competent jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Securities delivered to the Agent and
the Company. If the instrument of acceptance by a successor Agent required
by Section 7.10 shall not have been delivered to the Agent within 30 days
after the giving of such notice of resignation, the resigning Agent may
petition any court of competent jurisdiction for the appointment of a
successor Agent.
(d) If at any time
(1) the Agent fails to comply with Section 310(b) of the TIA, as
if the Agent were an indenture trustee under an indenture qualified
under the TIA, after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(2) the Agent shall cease to be eligible under Section 7.08 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent or of its
property shall be appointed or any public officer shall take charge or
control of the Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company 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 Company, by a Board Resolution, shall promptly appoint a successor
Agent and shall comply with the applicable requirements of Section 7.10. If
no successor Agent shall have been so appointed by the Company and accepted
appointment in the manner required by Section 7.10, any Holder who has been
a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to
give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first class mail, postage prepaid, to all Holders as their names and
addresses appear in the applicable Register. Each notice shall include the
name of the successor Agent and the address of its Corporate Trust Office
and New York office, if any.
SECTION 7.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of the
appointment hereunder of a successor Agent, every such successor Agent so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Agent shall become effective and such
successor Agent, without any further act, deed or conveyance, shall become
vested with all the rights, powers, agencies and duties of the retiring Agent;
but, on the request of the Company or the successor Agent, such retiring Agent
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Agent all the rights, powers and trusts of the
retiring Agent and shall duly assign, transfer and deliver to such successor
Agent all property and money held by such retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the time
of such acceptance such successor Agent shall be qualified and eligible
under this Article.
SECTION 7.11. MERGER, CONVERSION, CONSOLIDATION OF 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 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
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
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
Purchase Contract in respect of the obligations of the Holder of any Security
thereunder. The Company agrees, and each Holder of a Certificate, by his
acceptance thereof, shall be deemed to have agreed, that the Agent's execution
of the Certificates on behalf of the Holders shall be solely as agent and
attorney-in-fact for the Holders, and that the Agent shall have no obligation to
perform such Purchase Contracts on behalf of the Holders, except to the extent
expressly provided in Article V hereof.
SECTION 7.14. TAX COMPLIANCE. (a) The Agent, on its own behalf and on
behalf of the Company, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Securities or
(ii) the issuance, delivery, holding, transfer, redemption or exercise of rights
under the Securities. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of all
amounts required to be withheld to the appropriate taxing authority or its
designated agent.
(b) The Agent shall comply with any written direction received from
the Company with respect to the application of such requirements to
particular payments or Holders or in other particular circumstances, and
may for purposes of this Agreement rely on any such direction in accordance
with the provisions of Section 7.01(a)(2) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available,
on written request, to the Company or its authorized representative within
a reasonable period of time after receipt of such request.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
SECTION 8.01. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF HOLDERS. Without
the consent of any Holders, the Company and the Agent, at any time and from time
to time, may enter into one or more agreements supplemental hereto, in form
satisfactory to the Company and the Agent, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein
and in the Certificates; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent; or
(4) to make provision with respect to the rights of Holders pursuant
to the requirements of Section 5.06(b); or
(5) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein, or to
make any other provisions with respect to such matters or questions arising
under this Agreement, provided such action shall not adversely affect the
interests of the Holders in any material respect.
SECTION 8.02. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority of the Outstanding Purchase
Contracts voting together as one class, by Act of said Holders delivered to the
Company and the Agent, the Company, when authorized by a Board Resolution, and
the Agent may enter into an agreement or agreements supplemental hereto for the
purpose of modifying in any manner the terms of the Purchase Contracts or the
provisions of this Agreement or the rights of the Holders in respect of the
Securities (other than the Notes, which may be modified only in accordance with
the applicable provisions of the Indenture; PROVIDED, HOWEVER, that, except as
contemplated herein, no such supplemental agreement shall, without the consent
of the Holder 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 any Purchase Contract, impair the
right of the Holder of any Purchase Contract to receive distributions on
the related Collateral (except for the rights of Holders of Corporate Units
to substitute the Treasury Securities for the pledged Notes or the rights
of holders of Treasury Units to substitute Notes 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) change the place or currency of payment
(4) impair the right to institute suit for the enforcement of any
Purchase Contract;
(5) reduce the number of shares of Common Stock (or the amount of any
other property) to be purchased pursuant to any Purchase Contract, increase
the price to purchase shares of Common Stock (or any other property) upon
settlement of any Purchase Contract, change the Purchase Contract
Settlement Date or otherwise adversely affect the Holder's rights under any
Purchase Contract; or
(6) reduce the percentage of the outstanding Purchase Contracts the
consent of whose Holders is required for any such supplemental agreement;
PROVIDED, that if any amendment or proposal referred to above would adversely
affect only the Corporate Units or the Treasury Units, then only the affected
class of Holder as of the record date 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.
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 8.03. EXECUTION OF SUPPLEMENTAL AGREEMENTS. In executing, or
accepting the additional agencies created by, any supplemental agreement
permitted by this Article or the modifications thereby of the agencies created
by this Agreement, the Agent shall be entitled to receive and (subject to
Section 7.01) shall be fully protected in relying upon, an opinion of Counsel
stating that the execution of such supplemental agreement is authorized or
permitted by this Agreement. The 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 8.04. EFFECT OF SUPPLEMENTAL AGREEMENTS. Upon the execution of any
supplemental agreement under this Article, this Agreement and the Securities
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 8.05. REFERENCE TO SUPPLEMENTAL AGREEMENTS. Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any supplemental agreement pursuant to this Article may, and shall
if required by the Agent, bear a notation in form approved by the Agent as to
any matter provided for in such supplemental agreement. If the Company shall so
determine, new Certificates so modified as to conform, in the opinion of the
Agent and the Company, to any such supplemental agreement may be prepared and
executed by the Company and authenticated, executed on behalf of the Holders and
delivered by the Agent in exchange for Outstanding Certificates.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY PROPERTY
EXCEPT UNDER CERTAIN CONDITIONS. The Company covenants that it will not merge or
consolidate with any other Person or sell, assign, transfer, lease or convey all
or substantially all of its properties and assets to any Person or group of
affiliated Persons in one transaction or a series of related transactions,
unless (i) either the Company shall be the continuing corporation, or the
successor (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof or
the District of Columbia and such corporation shall expressly assume all the
obligations of the Company under the Purchase Contracts, this Agreement, the
Notes, the Indenture, the Remarketing Agreement and the Pledge Agreement by one
or more supplemental agreements in form reasonably satisfactory to the Agent and
the Collateral Agent, executed and delivered to the Agent and the Collateral
Agent by such corporation, and (ii) the Company or such successor corporation,
as the case may be, shall not, immediately after such merger or consolidation,
or such sale, assignment, transfer, lease or conveyance, be in default of its
payment obligations under this Agreement or the Notes, or in default of its
obligations to deliver Common Stock (or other property) on the Purchase Contract
Settlement Date or any Early Settlement Date, or in material default in the
performance of any other covenant hereunder or under the Notes, the Indenture,
the Remarketing Agreement, the Purchase Contracts or the Pledge Agreement.
SECTION 9.02. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. 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
9.01, such successor corporation shall succeed to and be substituted for the
Company with the same effect as if it had been named herein as the Company, and
its predecessor shall, except in the case of a lease, be released from its
obligations under this Agreement. Such successor corporation thereupon may cause
to be signed, and may issue either in its own name or in the name of Kansas City
Southern Industries, Inc. any or all of the Certificates evidencing Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Agent; and, upon the order of such successor corporation,
instead of the Company, and subject to all the terms, conditions and limitations
in this Agreement prescribed, the Agent shall authenticate and execute on behalf
of the Holders and deliver any Certificates which previously shall have been
signed and delivered by the officers of the Company to the Agent for
authentication 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.
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 9.03. OPINION OF COUNSEL GIVEN TO AGENT. The Agent, subject to
Sections 7.01 and 7.03, shall receive an 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 hereunder to the consummation of any
such consolidation, merger, sale, assignment, transfer, lease or conveyance have
been met.
ARTICLE X
COVENANTS
SECTION 10.01. PERFORMANCE UNDER PURCHASE CONTRACTS. The Company covenants
and agrees for the benefit of the Holders from time to time of the Securities
that it will duly and punctually perform its obligations under the Purchase
Contracts in accordance with the terms of the Purchase Contracts and this
Agreement.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY. The Company will maintain
or cause to be maintained in the Borough of Manhattan, The City of New York an
office or agency (a "New York Office"). Certificates may be presented or
surrendered for payment and for acquisition of shares of Common Stock (or other
property) upon settlement of the Purchase Contracts on the Purchase Contract
Settlement Date or Early Settlement and for transfer of Collateral upon
occurrence of a Termination Event, where Certificates may be surrendered for
registration of transfer or exchange, for a Collateral Substitution or
reestablishment of a Corporate Unit and where notices and demands to or upon the
Company in respect of the Securities and this Agreement may be served. The
Company will give prompt written notice to the Agent of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Agent with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Company hereby appoints the Agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where Certificates may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Agent of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Borough of Manhattan, the City of New
York, as the places of payment for the Securities, and hereby appoints the
Agent, acting through its Corporate Trust Office in , as the registrar, paying
agent and transfer agent for the Corporate Units and the Treasury Units and for
the other purposes contemplated by this Section 10.02.
SECTION 10.03. COMPANY TO RESERVE COMMON STOCK. The Company shall at all
times prior to the Purchase Contract Settlement Date reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common Stock the
full number of shares of Common Stock issuable against tender of payment in
respect of all Purchase Contracts constituting a part of the Securities
evidenced by Outstanding Certificates.
SECTION 10.04. COVENANTS AS TO COMMON STOCK. The Company covenants that all
shares of Common Stock which may be issued against tender of payment in respect
of any Purchase Contract constituting a part of the Outstanding Securities will,
upon issuance, be duly authorized, validly issued, fully paid and nonassessable.
The Company shall comply with all applicable securities laws regulating the
offer, issuance and delivery of shares of Common Stock upon settlement of
Purchase Contracts and will endeavor to list such shares on each national
securities exchange or automated quotation system on which the Common Stock is
then listed.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
KANSAS CITY SOUTHERN INDUSTRIES, INC.,
by
------------------------------
Name:
Title:
as Purchase Contract Agent
by
------------------------------
Name:
Title:
EXHIBIT A
(Form of Face of Corporate Units Certificate)
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE
CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN THE NAME OF THE
CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS
CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH-OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
No. CUSIP No.
Number of Corporate Units
% Corporate Units
This Corporate Units Certificate certifies that is the registered
Holder of the number of Corporate Units set forth above. Each Corporate Unit
represents (i) either (a) beneficial ownership by the Holder of $25 principal
amount of % Senior Notes of The Kansas City Southern Railway Company due August
17, 2007 (the "NOTE"), subject to the Pledge of such Note by such Holder
pursuant to the Pledge Agreement or (b) upon (1) the occurrence of a Tax Event
Redemption prior to May 17, 2004, or, in the event of a Failed Initial
Remarketing, the Purchase Contract Settlement Date, or (2) a Successful Initial
Remarketing, the appropriate Applicable Ownership Interest of the Treasury
Portfolio, subject to the Pledge of such Applicable Ownership Interest of the
Treasury Portfolio by such Holder pursuant to the Pledge Agreement, and (ii) the
rights and obligations of the Holder under one Purchase Contract with Kansas
City Southern Industries, Inc., a Delaware corporation (the "COMPANY", which
term, as used herein, includes its successors pursuant to the Purchase Contract
Agreement). All capitalized terms used herein which are defined in the Purchase
Contract Agreement have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Notes or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, constituting
part of each Corporate Unit evidenced hereby have been pledged to the Collateral
Agent, for the benefit of the Company, to secure the obligations of the Holder
under the Purchase Contract comprising a portion of such Corporate Unit.
The Pledge Agreement provides that all payments of principal on the Pledged
Notes 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, or interest payments on any Pledged Notes (as defined in the Pledge
Agreement) or 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, constituting part of the Corporate Units 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) interest payments with respect to Pledged Notes or 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, and (B)
any payments of principal or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such terms) of the Treasury
Portfolio, as the case may be, with respect to any Notes or the appropriate
Applicable Ownership Interest 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
(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 payments
of principal on any Pledged Notes or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio that has not been released from the Pledge pursuant to the
Pledge Agreement, as the case may be, to the Company on the Purchase Contract
Settlement Date (as defined herein) in accordance with the terms of the Pledge
Agreement, in full satisfaction of the respective obligations of the Holders of
the Corporate Units of which such Pledged Notes or the Treasury Portfolio, as
the case may be, are a part under the Purchase Contracts forming a part of such
Corporate Units. Interest on any Notes or 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 a
Corporate Unit evidenced hereby which are payable quarterly in arrears on August
17, November 17, February 17 and May 17, each year, commencing August 17, 2001
(a "PAYMENT DATE"), shall, subject to receipt thereof by the Agent from the
Collateral Agent, be paid to the Person in whose name this Corporate Units
Certificate (or a Predecessor Corporate Units Certificate) is registered at the
close of business on the Record Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate Units Certificate to purchase, and the Company to sell, on August 17,
2004 (the "PURCHASE CONTRACT SETTLEMENT DATE"), at a price equal to $25 (the
"STATED AMOUNT"), a number of newly issued shares of Common Stock, $0.01 par
value per share ("COMMON Stock"), of the Company equal to the Settlement Rate,
unless on or prior to the Purchase Contract Settlement Date there shall have
occurred a Termination Event or an Early Settlement or a Merger Early Settlement
with respect to the Corporate Units of which such Purchase Contract is a part,
all as provided in the Purchase Contract Agreement and more fully described on
the reverse hereof. The purchase price (the "PURCHASE PRICE") for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby, if
not paid earlier, shall be paid on the Purchase Contract Settlement Date by
application of payment received in respect of the Notes 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, pledged to secure the
obligations under such Purchase Contract of the Holder of the Corporate Units of
which such Purchase Contract is a part.
Interest on the Notes or 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, 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 Corporate Units Register.
Reference is hereby made to the further provisions set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Agent by manual signature, this Corporate Units Certificate shall not be
entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
KANSAS CITY SOUTHERN INDUSTRIES, INC.,
by
----------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts evidenced hereby)
by , not individually
but solely as attorney-in-fact of
such Holder
by
---------------------------
Name:
Title:
Dated:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate Units Certificates referred to in the within
mentioned Purchase Contract Agreement.
by ,
----------------------------
as Purchase Contract Agent
by
----------------------------
Authorized Signatory
Dated:
(Form of Reverse of Corporate Units Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of , 2001 (as may be supplemented from time to time, the
"PURCHASE CONTRACT AGREEMENT"), between the Company and The Bank of New York, as
Purchase Contract Agent (including its successors thereunder, herein called the
"AGENT"), to which Purchase Contract Agreement and supplemental agreements
thereto reference is hereby made for a description of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Agent, the Company and the Holders and of the terms upon which the Corporate
Units Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate Units Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Purchase Price, a
number of newly issued shares of Common Stock of the Company equal to the
Settlement Rate, unless, on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event or an Early Settlement or Merger
Early Settlement with respect to the Security of which such Purchase Contract is
a part. The "Settlement Rate" is equal to (a) if the Applicable Market Value (as
defined below) is equal to or greater than $ (the "THRESHOLD APPRECIATION
PRICE"), shares of Common Stock per Purchase Contract, (b) if the Applicable
Market Value is less than the Threshold Appreciation Price but is greater than $
, the number of shares of Common Stock per Purchase Contract equal to the Stated
Amount divided by the Applicable Market Value and (c) if the Applicable Market
Amount is less than or equal to $ , shares of Common Stock per Purchase
Contract, in each case subject to adjustment as provided in the Purchase
Contract Agreement. As provided in the Purchase Contract Agreement, fractional
shares of Common Stock may, at the Company's discretion, be issued upon
settlement of Purchase Contracts.
Each Purchase Contract evidenced hereby which is settled either through
Early Settlement or Cash Settlement shall obligate the Holder of the related
Corporate Units to purchase at the Purchase Price, and the Company to sell, a
number of newly issued shares of Common Stock equal to the Early Settlement Rate
or the Settlement Rate, as applicable.
The "APPLICABLE MARKET VALUE" means the average of the Closing Price per
share of Common Stock on each of the 20 consecutive Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date
or, for purposes of determining cash payable in lieu of factional shares in
connection with an Early Settlement, the third Trading Day immediately preceding
the relevant Early Settlement Date.
The "CLOSING PRICE" of the Common Stock on any date of determination means
the closing sale price (or, if no closing price is reported, the last reported
sale price) of the Common Stock on The New York Stock Exchange, Inc. (the
"NYSE") on such date or, if the Common Stock is not listed for trading on the
NYSE on any such date, as reported in the composite transactions for the
principal national or regional United States securities exchange on which the
Common Stock is so listed, or if the Common Stock is not so listed on a United
States national or regional securities exchange, as reported by the Nasdaq
National Market, or, if the Common Stock is not so reported, the last quoted bid
price for the Common Stock in the over-the-counter market as reported by the
National Quotation Bureau or similar organization, or, if such bid price is not
available, the market value of the Common Stock on such date as determined by a
nationally recognized independent investment banking firm retained for this
purpose by the Company.
A "TRADING DAY" means a day on which the Common Stock (A) is not suspended
from trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (B) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of the Common
Stock.
Each Purchase Contract evidenced hereby may be settled prior to the
Purchase Contract Settlement Date through Early Settlement or Merger Early
Settlement, in accordance with the terms of the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement, the Holder
of this Corporate Units Certificate shall pay the Purchase Price for the shares
of Common Stock purchased pursuant to each Purchase Contract evidenced hereby by
effecting a Cash Settlement, an Early Settlement or a Merger Early Settlement or
from the Proceeds of a remarketing of the related Pledged Notes of such holders.
Unless a Tax Event Redemption or a Successful Initial Remarketing has occurred,
a Holder of Corporate Units who does not make an effective Cash Settlement,
Early Settlement or Merger Early Settlement, shall pay the Purchase Price for
the shares of Common Stock to be issued under the related Purchase Contract from
the Proceeds of the sale of the related Pledged Notes held by the Collateral
Agent. Unless a Tax Event Redemption or a Successful Initial Remarketing has
occurred, such sale will be made by the Remarketing Agent pursuant to the terms
of the Supplemental Remarketing Agreement and the Remarketing Agreement on the
third Business Day immediately preceding the Purchase Contract Settlement Date.
If a Tax Event Redemption or a Successful Initial Remarketing has occurred, a
Holder of Corporate Units shall pay the Purchase Price 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.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment in full of the aggregate Purchase
Price for the shares of Common Stock to be purchased thereunder in the manner
herein set forth.
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
Notes. Upon receipt of notice of any meeting at which holders of Notes are
entitled to vote or upon the solicitation of consents, waivers or proxies of
holders of Notes, the Agent shall, as soon as practicable thereafter, mail to
the Corporate Units holders a notice (a) containing such information as is
contained in the notice or solicitation, (b) stating that each Corporate Units
holder on the record date set by the Agent therefor (which, to the extent
possible, shall be the same date as the record date for determining the holders
of Notes entitled to vote) shall be entitled to instruct the Agent as to the
exercise of the voting rights pertaining to the Notes constituting a part of
such holder's Corporate Units and (c) stating the manner in which such
instructions may be given. Upon the written request of the Corporate Units
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 Notes as to which any particular voting
instructions are received. In the absence of specific instructions from the
Holder of a Corporate Unit, the Agent shall abstain from voting the Notes
evidenced by such Corporate Units.
Upon the occurrence of a Tax Event Redemption prior to May 17, 2004, or, in
the event of a Failed Initial Remarketing, prior to the Purchase Contract
Settlement Date, pursuant to the terms of the Pledge Agreement, the Collateral
Agent will apply, out of the aggregate Redemption Price for the Notes that are
components of Corporate Units, an amount equal to the aggregate Redemption
Amount for the Notes that are components of Corporate Units to purchase on
behalf of the Holders of Corporate Units, the Treasury Portfolio and, after
deducting the Remarketing Fee to the extent permitted under the terms of the
Remarketing Agreement, promptly remit the remaining portion of such Redemption
Price to the Agent for payment to the Holders of such Corporate Units.
Upon the occurrence of a Successful Initial Remarketing, pursuant to the
terms of the Remarketing Agreement, the Remarketing Agent will apply an amount
equal to the Treasury Portfolio Purchase Price to purchase on behalf of the
Holders of Corporate Units, the Treasury Portfolio, 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 Initial Remarketing to the Agent for payment to the Holders of such
Corporate Units.
Following the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date or a Successful Initial Remarketing, the Holders of
Corporate Units and the Collateral Agent shall have such security interests
rights and obligations with respect to the Treasury Portfolio as the Holder of
Corporate Units and the Collateral Agent had in respect of the Notes, as the
case may be, subject to the Pledge thereof as provided in Sections 2, 3, 4, 5
and 6 of the Pledge Agreement and any reference herein to the Note shall be
deemed to be a reference to such Treasury Portfolio and any reference herein or
in the Certificates to interest on the Notes shall be deemed to be a reference
to corresponding distributions on the Treasury Portfolio.
The Corporate Units Certificates are issuable only in registered form and
only in denominations of a single Corporate Unit and any integral multiple
thereof. The transfer of any Corporate Units Certificate will be registered and
Corporate Units Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Corporate Units Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, 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 Notes, thereby creating Treasury Units, shall
be responsible for any fees or expenses payable in connection therewith. Except
as provided in the Purchase Contract Agreement, for so long as the Purchase
Contract underlying a Corporate Unit remains in effect, such Corporate Unit
shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Corporate Unit in respect of the Note or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the case
may be, and the Purchase Contract constituting such Corporate Unit may be
transferred and exchanged only as a Corporate Unit. A Holder of Corporate Units
may create Treasury Units by delivering to the Collateral Agent Treasury
Securities in an aggregate principal amount equal to the aggregate principal
amount of the Pledged Notes in exchange for the release of such Pledged Notes in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement. From and after such Collateral Substitution, the Security for which
such Pledged Treasury Securities secures the Holder's obligation under the
Purchase Contract shall be referred to as a "Treasury Unit". A Holder may make
such Collateral Substitution only in integral multiples of 40 Corporate Units
for 40 Treasury Units. Such Collateral Substitution may cause the equivalent
aggregate Stated Amount of this Certificate to be increased or decreased;
PROVIDED, HOWEVER, the equivalent aggregate Stated Amount outstanding under this
Corporate Units Certificate shall not exceed $ . All such adjustments to
-------
the equivalent aggregate Stated Amount of this Corporate Units Certificate shall
be duly recorded by placing an appropriate notation on the Schedule attached
hereto.
A Holder of Treasury Units may recreate Corporate Units by delivering to
the Collateral Agent Notes with an aggregate principal amount equal to the
aggregate principal amount of the Pledged Treasury Securities in exchange for
the release of such Pledged Treasury Securities in accordance with the terms of
the Purchase Contract Agreement and the Pledge Agreement. Any such recreation of
a Corporate Unit may be effected only in multiples of 40 Treasury Units for 40
Corporate Units.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, 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, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon the occurrence of
a Termination Event, the Company shall promptly but in no event later than two
Business Days thereafter give written notice to the Agent, the Collateral Agent
and to the Holders, at their addresses as they appear in the Corporate Units
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Notes 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.
Subject to and upon compliance with the provisions of the Purchase Contract
Agreement and unless the Treasury Portfolio has replaced the Notes as a
component of the Corporate Units as the result of a successful Initial
Remarketing or a Tax Event Redemption, at the option of the Holders thereof,
Purchase Contracts underlying Securities having an aggregate Stated Amount equal
to $1,000 or an integral multiple thereof may be settled early ("EARLY
SETTLEMENT") as provided in the Purchase Contract Agreement. In order to
exercise the right to effect Early Settlement with respect to any Purchase
Contracts evidenced by this Corporate Units Certificate, the Holder of this
Corporate Units Certificate shall deliver this Corporate Units Certificate to
the Agent at the Corporate Trust Office or the New York office duly endorsed for
transfer to the Company or in blank with the form of Election to Settle Early
set forth below duly completed and accompanied by payment in the form of
immediately available funds payable to the Company in an amount (the "EARLY
SETTLEMENT AMOUNT") equal to the product of (i) the Stated Amount times (ii) the
number of Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement. Upon Early Settlement of Purchase Contracts by a Holder
of the related Securities, the Pledged Notes or the appropriate Applicable
Ownership Interest of the Treasury Portfolio underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a Corporate Unit as to which Early
Settlement is effected equal to the Early Settlement Rate. The Early Settlement
Rate shall initially be equal to shares of Common Stock and shall be adjusted in
the same manner and at the same time as the Settlement Rate is adjusted as
provided in the Purchase Contract Agreement.
Upon registration of transfer of this Corporate Units Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement) under the terms of the Purchase Contract Agreement,
the Pledge Agreement and the Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Purchase Contract
Agreement, the Pledge Agreement and the Purchase Contracts evidenced by this
Corporate Units Certificate. The Company covenants and agrees, and the Holder,
by its acceptance hereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
The Holder of this Corporate Units Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Corporate Units evidenced hereby on its behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (I.E.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
its obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Pledge Agreement on its behalf as its attorney-in-fact, and consents to the
Pledge of the Notes or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, underlying this Corporate Units
Certificate pursuant to the Pledge Agreement. The Holder further covenants and
agrees, that, to the extent and in the manner provided in the Purchase Contract
Agreement and the Pledge Agreement, but subject to the terms thereof, Proceeds
of the Pledged Notes or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio on the Purchase Contract Settlement Date shall be paid by the
Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such Proceeds.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
The Company, the Agent and its Affiliates and any agent of the Company or
the Agent may treat the Person in whose name this Corporate Units Certificate is
registered as the owner of the Corporate Units evidenced hereby for the purpose
of receiving payments of interest payable quarterly on the Notes or on the
maturing quarterly interest strips of the Treasury Portfolio, as applicable,
performance of the Purchase Contracts and for all other purposes whatsoever,
whether or not any payments in respect thereof be overdue and notwithstanding
any notice to the contrary, and neither the Company, the Agent nor any such
agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof, entitle
the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Agent.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ------------ Custodian------------
(cust) (minor)
Under Uniform Gifts to Minors Act
-----------------------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
-----------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
------------------------------------------------------
-----------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying
Number of Assignee)
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Corporate Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing
-----------------------------------------------------------------------
attorney to transfer said Corporate Units Certificates on the books of Kansas
City Southern Industries, Inc. with full power of substitution in the premises.
Dated:
------------------- -------------------------------
Signature
NOTICE: The signature to this
assignment must correspond
with the name as it appears
upon the face of the within
Corporate Units Certificates
in every particular, without
alteration or enlargement or
any change whatsoever.
Signature Guarantee:
--------------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Corporate Units
evidenced by this Corporate Units Certificate be registered in the name of, and
delivered, together with a check in payment for any fractional share (if the
Company elects not to issue fractional shares), 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)
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other" signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
If shares are to be registered in the name of and delivered to a Person
other than the Holder, please (i) print such Person's name and address
REGISTERED HOLDER and (ii) provide a guarantee of your signature: Please print
name and address of Registered Holder:
--------------------------- -------------------------------
Name Name
--------------------------- -------------------------------
Address Address
--------------------------- -------------------------------
--------------------------- -------------------------------
Social Security or other
Taxpayer Identification
Number, if any -------------------------------
ELECTION TO SETTLE EARLY
The undersigned Holder of this Corporate Units Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Corporate Units evidenced by this Corporate
Units Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Corporate Units
with an aggregate Stated Amount equal to $1,000 or an integral multiple thereof;
PROVIDED, HOWEVER, that if the Treasury Portfolio has replaced the Notes as a
component of the Corporate Units as the result of a successful Initial
Remarketing of the Notes or a Tax Event Redemption, no early settlement may
occur. The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share (if the
Company elects not to issue fractional shares) and any Corporate Units
Certificate representing any Corporate Units evidenced hereby as to which Early
Settlement of the related Purchase Contracts is not effected, to the undersigned
at the address indicated below unless a different name and address have been
indicated below. Pledged Notes deliverable upon such Early Settlement will be
transferred in accordance with the transfer instructions set forth below. If
shares are to be registered in the name of a Person other than the undersigned,
the undersigned will pay any transfer tax payable incident thereto.
Dated:
--------------------- ---------------------------------
Signature
Signature Guarantee
(if assigned to another person):
---------------------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock or Corporate Units Certificates are to be
registered in the name of and delivered to and Pledged Notes are to be
transferred to a Person other than the Holder, please (i) print such Person's
name and address and (ii) provide a guarantee of your signature:
--------------------------------
Name
--------------------------------
Address
--------------------------------
--------------------------------
--------------------------------
REGISTERED HOLDER
Please print name and address of Registered Holder:
--------------------------------
Name
--------------------------------
Address
--------------------------------
--------------------------------
--------------------------------
--------------------------------
Social Security or other
Taxpayer Identification
Number, if any --------------------------------
Transfer Instructions for Pledged Notes Transferable Upon Early Settlement or a
Termination Event:
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been
made:
Date Amount of Amount of Stated Amount of Signature of
decrease in increase in this Global authorized
Stated Amount Stated Amount Certificate signatory of
of the Global of the Global following such Purchase Contract
Certificate Certificate decrease or Agent of
increase Securities
Custodian
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT B
(Form of Face of Treasury Units Certificate)
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE
CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN THE NAME OF THE
CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS
CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
No. CUSIP NO.
Number of Treasury Units
% Treasury Units
This Treasury Units Certificate certifies that is the
registered Holder of the number of Treasury Units set forth above. Each Treasury
Unit represents (i) a 1/40, or 2.5%, 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
Purchase Contract with Kansas City Southern Industries, Inc., a Delaware
corporation (the "COMPANY", which term, as used herein, includes its successors
pursuant to the Purchase Contract Agreement). All capitalized terms used herein
which are defined in the Purchase Contract Agreement have the meaning set forth
therein.
Pursuant to the Pledge Agreement, the Treasury Securities constituting part
of each Treasury Units evidenced hereby have been pledged to the Collateral
Agent, for the benefit of the Company, to secure the obligations of the Holder
under the Purchase Contract comprising a portion of such Treasury Unit.
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 of 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 Treasury Units 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, to the Company on the Purchase Contract Settlement Date (as
defined herein) in accordance with the terms of the Pledge Agreement, in full
satisfaction of the respective obligations of the Holders of the Treasury Units
of which such Pledged Treasury Securities are a part under the Purchase
Contracts forming a part of such Treasury Units.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury Units Certificate to purchase, and the Company to sell, on August 17,
2004 (the "PURCHASE CONTRACT SETTLEMENT DATE"), at a price equal to $25 (the
"STATED AMOUNT"), a number of newly issued shares of Common stock, $0.01 par
value per share ("COMMON STOCK"), of the Company equal to the Settlement Rate,
unless on or prior to the Purchase Contract Settlement Date there shall have
occurred a Termination Event or an Early Settlement or Merger Early Settlement
with respect to the Treasury Units of which such Purchase Contract is a part,
all as provided in the Purchase Contract Agreement and more fully described on
the reverse hereof. The purchase price (the "PURCHASE Price") for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby, if
not paid earlier, shall be paid on the Purchase Contract Settlement Date by
application of the Proceeds from the Treasury Securities pledged to secure the
obligations under such Purchase Contract in accordance with the terms of the
Pledge Agreement.
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 Treasury Units Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Purchase Contract Agreement or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
KANSAS CITY SOUTHERN INDUSTRIES, INC.
by
--------------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under
the Purchase Contracts)
by [ ] not
individually but solely as
attorney-in-fact of such
Holder
by
--------------------------------
Name:
Title:
Dated:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Treasury Units referred to in the within-mentioned
Purchase Contract Agreement.
by
--------------------------------
[ ],
as Purchase Contract Agent
by
--------------------------------
Authorized Signatory
(Form of Reverse of
Treasury Units Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of , 2001 (as may be supplemented from time
to time, the "PURCHASE CONTRACT AGREEMENT"), between the Company and The Bank of
New York, as Purchase Contract Agent (including its successors thereunder,
herein called the "AGENT"), to which the Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Agent, the Company and the Holders and of the terms upon which
the Treasury Units Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury Units Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at the Purchase Price, a number of newly issued shares
of Common Stock of the Company equal to the Settlement Rate, unless, on or prior
to the Purchase Contract Settlement Date, there shall have occurred a
Termination Event or an Early Settlement or a Merger Early Settlement with
respect to the Security of which such Purchase Contract is a part. The
"Settlement Rate" is equal to (a) if the Applicable Market Value (as defined
below) is equal to or greater than $ (the "THRESHOLD APPRECIATION
PRICE"), shares of Common Stock per Purchase Contract, (b) if the Applicable
Market Value is less than the Threshold Appreciation Price but is greater than
$ , the number of shares of Common Stock per Purchase Contract equal
to the Stated Amount divided by the Applicable Market Value and (c) if the
Applicable Market Amount is less than or equal to $ , shares of Common Stock per
Purchase Contract, in each case subject to adjustment as provided in the
Purchase Contract Agreement. As provided in the Purchase Contract Agreement,
fractional shares of Common Stock may, at the Company's discretion, be issued
upon settlement of Purchase Contracts.
Each Purchase Contract evidenced hereby which is settled through Early
Settlement shall obligate the Holder of the related Treasury Units to purchase
at the Purchase Price, and the Company to sell, a number of newly issued shares
of Common Stock equal to the Early Settlement Rate.
The "APPLICABLE MARKET VALUE" means the average of the Closing Price per
share of Common Stock on each of the 20 consecutive Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date
or, for purposes of determining cash payable in lieu of fractional shares in
connection with an Early Settlement, the third Trading Day immediately preceding
the relevant Early Settlement Date.
The "CLOSING PRICE" of the Common Stock on any date of determination means
the closing sale price (or, if no closing price is reported, the last reported
sale price) of the Common Stock on The New York Stock Exchange, Inc. (the
"NYSE") on such date or, if the Common Stock is not listed for trading on the
NYSE on any such date, as reported in the composite transactions for the
principal national or regional United States securities exchange on which the
Common Stock is so listed, or if the Common Stock is not so listed on a United
States national or regional securities exchange, as reported by the Nasdaq
National Market or, if the Common Stock is not so reported, the last quoted bid
price for the Common Stock in the over-the-counter market as reported by the
National Quotation Bureau or similar organization, or, if such bid price is not
available, the market value of the Common Stock on such date as determined by a
nationally recognized independent investment banking firm retained for this
purpose by the Company.
A "TRADING DAY" means a day on which the Common Stock (A) is not suspended
from trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (B) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of the Common
Stock.
Each Purchase Contract evidenced hereby may be settled prior to the
Purchase Contract Settlement Date through Early Settlement or Merger Early
Settlement, in accordance with the terms of the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement, the Holder
of this Treasury Units Certificate shall pay the Purchase Price for the shares
of Common Stock purchased pursuant to each Purchase Contract evidenced hereby by
effecting either an Early Settlement or Merger Early Settlement of each such
Purchase Contract or by applying a principal amount of the Pledged Treasury
Securities underlying such Holder's Treasury Units equal to the Stated Amount to
the purchase of the Common Stock. A Holder of Treasury Units who does not make
an effective Early Settlement or Merger Early Settlement, shall pay the Purchase
Price for the shares of Common Stock to be issued on the related Purchase
Contract by applying a principal amount of the Pledged Treasury Securities as
aforesaid.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment in full of the aggregate Purchase
Price for the shares of Common Stock to be purchased thereunder in the manner
herein set forth.
The Treasury Units Certificates are issuable only in registered form and
only in denominations of a single Treasury Unit and any integral multiple
thereof. The transfer of any Treasury Units Certificate will be registered and
Treasury Units Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Treasury Units Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, 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 Notes for Treasury Securities, thereby recreating Corporate Units,
shall be responsible for any fees or expenses payable in connection therewith.
Except as provided in the Purchase Contract Agreement, for so long as the
Purchase Contract underlying a Treasury Unit remains in effect, such Treasury
Unit shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Treasury Unit in respect of the Treasury
Security and the Purchase Contract constituting such Treasury Unit may be
transferred and exchanged only as a Treasury Unit. Unless the Treasury Portfolio
has replaced the Notes as a component of the Corporate Units as the result of a
Successful Initial Remarketing of the Notes or a Tax Event Redemption, a Holder
of Treasury Units may recreate Corporate Units by delivering to the Collateral
Agent Notes with an aggregate principal amount equal to the aggregate principal
amount of the pledged Treasury Securities in exchange for the release of such
pledged Treasury Securities in accordance with the terms of the Purchase
Contract Agreement and the Pledge Agreement. From and after such substitution,
the Security for which such Pledged Notes secure the Holder's obligation under
the Purchase Contract shall be referred to as a "CORPORATE UNIT". A Holder may
make such a substitution only in integral multiples of 40 Treasury Units for 40
Corporate Units. Such substitution may cause the equivalent aggregate Stated
Amount of this Certificate to be increased or decreased; PROVIDED, HOWEVER, the
equivalent aggregate Stated Amount outstanding under this Treasury Units
Certificate shall not exceed $ . All such adjustments to the equivalent
------
aggregate Stated Amount of this Treasury Units Certificate shall be duly
recorded by placing an appropriate notation on the Schedule attached hereto.
A Holder of a Corporate Unit may create a Treasury Unit by delivering to
the Collateral Agent Treasury Securities in an aggregate principal amount equal
to the aggregate principal amount of the Pledged Notes in exchange for the
release of such Pledged Notes in accordance with the terms of the Purchase
Contract Agreement and the Pledge Agreement. Any such creation of a Treasury
Units may be effected only in multiples of 40 Corporate Units for 40 Treasury
Units.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, 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, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon the occurrence of
a Termination Event, the Company shall promptly but in no event later than two
Business Days thereafter give written notice to the Agent, the Collateral Agent
and to the Holders, at their addresses as they appear in the Treasury Units
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.
Subject to and upon compliance with the provisions of the Purchase Contract
Agreement, at the option of the Holders thereof, Purchase Contracts underlying
Securities having an aggregate Stated Amount equal to $1,000 or an integral
multiple thereof may be settled early ("EARLY SETTLEMENT") as provided in the
Purchase Contract Agreement. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts evidenced by this Treasury
Units Certificate, the Holder of this Treasury Units Certificate shall deliver
this Treasury Units Certificate to the Agent at the Corporate Trust Office or
the New York Office duly endorsed for transfer to the Company or in blank with
the form of Election to Settle Early set forth below duly completed and
accompanied by payment in the form of immediately available funds payable to the
Company in an amount (the "EARLY SETTLEMENT Amount") equal to the product of (i)
the Stated Amount times, (ii) the number of Purchase Contracts with respect to
which the Holder has elected to effect Early Settlement. Upon Early Settlement
of Purchase Contracts by a Holder of the related Securities, the Pledged
Treasury Securities underlying such Securities shall be released from the Pledge
as provided in the Pledge Agreement and the Holder shall be entitled to receive
a number of shares of Common Stock on account of each Purchase Contract forming
part of a Treasury Unit as to which Early Settlement is effected equal to the
Early Settlement Rate. The Early Settlement Rate shall initially be equal to
shares of Common Stock and shall be adjusted in the same manner and at the same
time as the Settlement Rate is adjusted as provided in the Purchase Contract
Agreement.
Upon registration of transfer of this Treasury Units Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement) under the terms of the Purchase Contract Agreement,
the Pledge Agreement and the Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Purchase Contract
Agreement, the Pledge Agreement and the Purchase Contracts evidenced by this
Treasury Units Certificate. The Company covenants and agrees, and the Holder, by
his acceptance hereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
The Holder of this Treasury Units Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Treasury Units evidenced hereby on its behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
its obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Pledge Agreement on its behalf as its attorney-in-fact, and consents to the
Pledge of the Treasury Securities underlying this Treasury Units Certificate
pursuant to the Pledge Agreement. The Holder further covenants and agrees, that,
to the extent and in the manner provided in the Purchase Contract Agreement and
the Pledge Agreement, but subject to the terms thereof, Proceeds of the pledged
Treasury Securities on the Purchase Contract Settlement Date shall be paid by
the Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such Proceeds.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
The Company, the Agent and its Affiliates and any agent of the Company or
the Agent may treat the Person in whose name this Treasury Units Certificate is
registered as the owner of the Treasury Units evidenced hereby for the purpose
of receiving payments on the Treasury Securities and performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not any payments in
respect thereof be overdue and notwithstanding any notice to the contrary, and
neither the Company, the Agent nor any such agent shall be affected by notice to
the contrary.
The Purchase Contracts shall not, prior to the settlement thereof, entitle
the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Agent.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
------------- -------------
(cust) (minor)
Under Uniform Gifts to Minors Act
-----------------------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
-----------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
ASSIGNEE)
--------------------------------------------------------------
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Treasury Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing
-------------------------------
attorney to transfer said Treasury Units Certificates on the books of Kansas
City Southern Industries, Inc. with full power of substitution in the premises.
Dated:
---------------------
------------------------------
Signature
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within Treasury Units
Certificates in every particular,
without alteration or enlargement
or any change whatsoever.
Signature Guarantee:
---------------------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Treasury Units evidenced
by this Treasury Units Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share (if the Company elects
not to issue fractional shares), 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)
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
If shares are to be registered in the name of and delivered to a Person other
than the Holder, please (i) print such Person's name and address and (ii)
provide a guarantee of your signature:
---------------------------------------------------------------------------
Name
---------------------------------------------------------------------------
Address
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Social Security or other
Taxpayer Identification
Number, if any
---------------------------------------------------------
REGISTERED HOLDER
Please print name and address of Registered Holder:
---------------------------------------------------------------------------
Name
---------------------------------------------------------------------------
Address
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury Units Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Treasury Units evidenced by this Treasury
Units Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Treasury Units with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share (if the
Company elects not to issue fractional shares) and any Treasury Units
Certificate representing any Treasury Units evidenced hereby as to which Early
Settlement of the related Purchase Contracts is not effected, to the undersigned
at the address indicated below unless a different name and address have been
indicated below. Pledged Treasury Securities deliverable upon such Early
Settlement will be transferred in accordance with the transfer instructions set
forth below. If shares are to be registered in the name of a Person other than
the undersigned, the undersigned will pay any transfer or similar tax payable
incident thereto.
Dated:
--------------------------------
Signature
------------------------------
Signature Guarantee:
---------------------------------
(if assigned to another person)
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock or Treasury Units Certificates are to be registered in
the name of and delivered to and pledged Treasury Securities are to be
transferred to a Person other than the Holder, please (i) print such Person's
name and address and (ii) provide a guarantee of your signature:
---------------------------------------------------------------------------
Name
---------------------------------------------------------------------------
Address
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Social Security or other
Taxpayer Identification
Number, if any
---------------------------------
Please print name and address of Registered Holder:
---------------------------------------------------------------------------
Name
---------------------------------------------------------------------------
Address
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Transfer Instructions for pledged Treasury Securities
Transferable Upon Settlement or a Termination Event:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global
Certificate have been made:
Date Amount of Amount of Stated Amount of Signature of
decrease in increase in this Global authorized
Stated Amount Stated Amount Certificate signatory of
of the Global of the Global following such Purchase Contract
Certificate Certificate decrease or Agent of
increase Securities
Custodian
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT C
INSTRUCTION FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
[Collateral Agent Address]
Re: Mandatory Convertible Units of Kansas City Southern Industries, Inc.
(the "COMPANY")
We hereby notify you in accordance with Section [4.1] [4.2] of the Pledge
Agreement, dated as of , 2001, (the "PLEDGE AGREEMENT") among the
----------
Company, yourselves, as Collateral Agent, Custodial Agent and Securities
Intermediary and ourselves, as Purchase Contract Agent and as attorney-in-fact
for the holders of [Corporate Units] [Treasury Units] from time to time, that
the holder of the Securities listed below (the "HOLDER") has elected to
substitute [$ aggregate principal amount of Treasury Securities] [$
----- -----
aggregate principal amount of Notes] in exchange for an equal Value of [Pledged
Notes] [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 [Treasury Securities] [Notes] to you, as Collateral Agent. We hereby
instruct you, upon receipt of such [Pledged Treasury Securities] [Pledged
Notes], and upon the payment by such Holder of any applicable fees, to release
the [Notes] [Treasury Securities] related to such [Corporate Units] [Treasury
Units] to us in accordance with the Holder's instructions. Capitalized terms
used herein but not defined shall have the meaning set forth in the Pledge
Agreement.
Date:
------------------ -------------------------------
by
---------------------------
Name:
Title:
Signature Guarantee:
----------
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Notes] for the [Pledged Notes] [Pledged Treasury
Securities]:
-------------------------------- -------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
--------------------------------
Address
--------------------------------
--------------------------------
EXHIBIT D
INSTRUCTION TO PURCHASE CONTRACT AGENT
[Purchase Contract Agent Address]
Re: Mandatory Convertible Units of Kansas City Southern Industries, Inc.
(the "COMPANY")
The undersigned Holder hereby notifies you that it has delivered to
, as Collateral Agent, [$ aggregate principal amount of
-----
Treasury Securities] [$ aggregate principal amount of Notes] in exchange for an
equal Value of [Pledged Notes] [Pledged Treasury Securities] held by the
Collateral Agent, in accordance with Section [4.1], [4.2] of the Pledge
Agreement, dated , 2001 (the "PLEDGE AGREEMENT"), between you, the Company and
--
the Collateral Agent. The undersigned Holder has paid the Collateral Agent all
applicable fees relating to such exchange. The undersigned Holder hereby
instructs you to instruct the Collateral Agent to release to you on behalf of
the undersigned Holder the [Pledged Notes] [Pledged Treasury Securities] related
to such [Corporate Units] [Treasury Units]. Capitalized terms used herein but
not defined shall have the meaning set forth in the Pledge Agreement.
Dated:
----------------------------
Signature
-------------------------
Signature Guarantee:
------------------------------------
Please print name and address of Registered Holder:
--------------------------------- ---------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
---------------------------------
Address
---------------------------------
---------------------------------
EXHIBIT E
NOTICE TO SETTLE BY SEPARATE CASH
[Purchase Contract Agent Address]
Re: Mandatory Convertible Units of Kansas City Southern Industries, Inc.
(the "COMPANY")
The undersigned Holder hereby irrevocably notifies you in accordance with
Section 5.04 of the Purchase Contract Agreement dated as of , 2001
------------
among the Company and yourselves, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts, that such Holder has
elected to pay to the Collateral Agent, on or prior to 11:00 a.m. New York City
time, on the Business Day immediately preceding the Purchase Contract Settlement
Date, (in lawful money of the United States by [certified or cashiers check or]
wire transfer, in each case in immediately available funds), $ as the
--------
Purchase Price for the shares of Common Stock issuable to such Holder by the
Company under the related Purchase Contract on the Purchase Contract Settlement
Date. The undersigned Holder hereby instructs you to notify promptly the
Collateral Agent of the undersigned Holder's election to make such cash
settlement with respect to the Purchase Contracts related to such Holder's
[Corporate Units] [Treasury Units].
Dated:
-----------------------------
Signature
---------------------------
Signature Guarantee:
-------------------------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Please print name and address of Registered Holder:
---------------------------------- ---------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
----------------------------------
Address
----------------------------------
----------------------------------
