Exhibit 4.4
GABELLI ASSET MANAGEMENT INC.
AND
The Bank of New York
as Purchase Contract Agent
PURCHASE CONTRACT AGREEMENT
dated as of February 6, 2002
Table of Contents
Page
Article I Definitions and Other Provisions of General Applications............1
Section 1.1 Definitions.............................................1
Section 1.2 Compliance Certificates and Opinions...................15
Section 1.3 Form of Documents Delivered to Agent...................15
Section 1.4 Acts of Holders; Record Dates..........................16
Section 1.5 Notices................................................17
Section 1.6 Notice to Holders; Waiver..............................18
Section 1.7 Effect of Headings and Table of Contents...............18
Section 1.8 Successors and Assigns.................................18
Section 1.9 Separability Clause....................................18
Section 1.10 Benefits of Agreement..................................19
Section 1.11 Governing Law..........................................19
Section 1.12 Legal Holidays.........................................19
Section 1.13 Counterparts...........................................19
Section 1.14 Inspection of Agreement................................19
Section 1.15 Appointment of Financial Institution as
Agent for the Company..................................19
Section 1.16 No Waiver..............................................20
Article II Certificate Forms.................................................20
Section 2.1 Forms of Certificates Generally.........................20
Section 2.2 Form of Agent's Certificate of Authentication...........21
Article III The Securities...................................................21
Section 3.1 Title and Terms; Denominations.........................21
Section 3.2 Rights and Obligations Evidenced by the Certificates...21
Section 3.3 Execution, Authentication, Delivery and Dating.........22
Section 3.4 Temporary Certificates.................................23
Section 3.5 Registration; Registration of Transfer and Exchange....23
Section 3.6 Book-Entry Interests...................................25
Section 3.7 Notices to Holders.....................................25
Section 3.8 Appointment of Successor Clearing Agency...............25
Section 3.9 Definitive Certificates................................26
Section 3.10 Mutilated, Destroyed, Lost and Stolen Certificates.....26
Section 3.11 Persons Deemed Owners..................................27
Section 3.12 Cancellation...........................................27
Section 3.13 Establishment of Growth PRIDES.........................28
Section 3.14 Reestablishment of Income PRIDES.......................29
Section 3.15 Transfer of Collateral upon Occurrence of
Termination Event......................................31
Section 3.16 No Consent to Assumption...............................31
Section 3.17 CUSIP Numbers..........................................32
Article IV The Notes and Applicable Ownership Interest
in the Treasury Portfolio.........................................32
Section 4.1 Interest and Other Payments; Rights to Payments
Preserved; Rate Reset; Notice..........................32
Section 4.2 Notice and Voting......................................33
Section 4.3 Tax Event Redemption...................................34
Section 4.4 CUSIP Numbers..........................................34
Article V The Purchase Contracts.............................................35
Section 5.1 Purchase of Shares of Common Stock......................35
Section 5.2 Contract Adjustment Payments............................36
Section 5.3 Deferral of Payment Dates For Contract
Adjustment Payments.....................................41
Section 5.4 Initial Remarketing.....................................43
Section 5.5 Payment of Purchase Price...............................45
Section 5.6 Issuance of Shares of Common Stock......................48
Section 5.7 Adjustment of Settlement Rate...........................49
Section 5.8 Notice of Adjustments and Certain Other Events..........55
Section 5.9 Termination Event; Notice...............................55
Section 5.10 Early Settlement.......................................56
Section 5.11 No Fractional Shares...................................58
Section 5.12 Charges and Taxes......................................58
Article VI Remedies..........................................................59
Section 6.1 Unconditional Right of Holders to Purchase Common Stock.59
Section 6.2 Restoration of Rights and Remedies......................59
Section 6.3 Rights and Remedies Cumulative..........................59
Section 6.4 Delay or Omission Not Waiver............................59
Section 6.5 Undertaking for Costs...................................59
Section 6.6 Waiver of Stay or Extension Laws........................60
Article VII The Agent........................................................60
Section 7.1 Certain Duties and Responsibilities....................60
Section 7.2 Notice of Default......................................61
Section 7.3 Certain Rights of Agent................................61
Section 7.4 Not Responsible for Recitals or Issuance of Securities.63
Section 7.5 May Hold Securities....................................63
Section 7.6 Money Held in Custody..................................63
Section 7.7 Compensation and Reimbursement.........................63
Section 7.8 Corporate Agent Required; Eligibility..................64
Section 7.9 Resignation and Removal; Appointment of Successor......64
Section 7.10 Acceptance of Appointment by Successor.................65
Section 7.11 Merger, Conversion, Consolidation or
Succession to Business.................................66
Section 7.12 Preservation of Information; Communications to Holders.66
Section 7.13 No Obligations of Agent................................66
Section 7.14 Tax Compliance.........................................66
Article VIII Supplemental Agreements.........................................67
Section 8.1 Supplemental Agreements Without Consent of Holders......67
Section 8.2 Supplemental Agreements with Consent of Holders.........68
Section 8.3 Execution of Supplemental Agreements....................69
Section 8.4 Effect of Supplemental Agreements.......................69
Section 8.5 Reference to Supplemental Agreements....................69
Article IX Consolidation, Merger, Sale or Conveyance.........................69
Section 9.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions................69
Section 9.2 Rights and Duties of Successor Corporation..............70
Section 9.3 Opinion of Counsel Given to Agent.......................70
Article X Covenants..........................................................71
Section 10.1 Performance Under Purchase Contracts...................71
Section 10.2 Maintenance of Office or Agency........................71
Section 10.3 Company to Reserve Common Stock........................71
Section 10.4 Covenants as to Common Stock...........................72
Section 10.5 Tax Treatment.........................................70
PURCHASE CONTRACT AGREEMENT, dated as of February 6, 2002 between
Gabelli Asset Management Inc., a New York corporation (the "Company"), and
The Bank of New York, a New York banking corporation, acting as purchase
contract agent for the Holders of Securities (as defined herein) 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.
WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
Article I
Definitions and Other Provisions
of General Applications
Section 1.1 Definitions.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular; and
nouns and pronouns of the masculine gender include the feminine and neuter
genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States;
(c) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
(d) the following terms have the meanings given to them in this
Section 1.1(d).
"Act" when used with respect to any Holder, has the meaning
specified in Section 1.4 hereof.
"Affiliate" has the same meaning as given to that term in
Rule 405 promulgated under 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 5.1 hereof.
"Applicable Ownership Interest" means, with respect to an
Income PRIDES 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 February 15, 2005
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 for 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, in the case of a Tax Event Redemption, a .0375% 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 the Treasury Portfolio that matures on or
prior to that interest payment date.
"Applicable Principal Amount" means the aggregate principal
amount of the Notes which are components of Income PRIDES 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 3.6 hereof.
"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
5.5(a)(i) hereof.
"Certificate" means an Income PRIDES Certificate or a
Growth PRIDES Certificate.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that
is acting as a depositary for the Securities and in whose name, or
in the name of a nominee of that organization, shall be registered
a Global Certificate and which shall undertake to effect book
entry transfers and pledges of the Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to
time the Clearing Agency effects book entry transfers and pledges
of securities deposited with the Clearing Agency.
"Closing Price" has the meaning specified in Section 5.1
hereof.
"Collateral" has the meaning specified in Section 2.1 of
the Pledge Agreement.
"Collateral Agent" means JPMorgan Chase 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 hereof.
"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 class A Common Stock, $.001 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 provisions of this
Agreement, and thereafter "Company" shall mean such successor.
"Constituent Person" has the meaning specified in Section
5.7(b).
"Contract Adjustment Payments" means the amount payable by
the Company in respect of each Purchase Contract constituting a
part of an Income PRIDES or a Growth PRIDES equal to .95% of the
Stated Amount per year, in each case computed on the basis of a
360-day year of twelve 30-day months, plus any Deferred Contract
Adjustment Payments accrued pursuant to Section 5.2 or 5.3 hereof.
Contract Adjustment Payments will accrue from February 6, 2002 and
will be payable quarterly in arrears on any Payment Date,
commencing on May 17, 2002.
"Corporate Trust Office" means the principal corporate
trust office of the Agent at which, at any particular time, its
corporate trust business shall be principally administered, which
office at the date hereof is located at 0 Xxxx Xxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000.
"Coupon Rate" means the percentage rate per year at which
each Note will bear interest initially.
"Current Market Price" has the meaning specified in Section
5.7(a)(8) hereof.
"Deferred Contract Adjustment Payments" has the meaning
specified in Section 5.3 hereof.
"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
5.10(a) hereof.
"Early Settlement Amount" has the meaning specified in
Section 5.10(a) hereof.
"Early Settlement Date" has the meaning specified in
Section 5.10(a) hereof.
"Early Settlement Rate" has the meaning specified in
Section 5.10(c) hereof.
"Exchange Act" means the Securities Exchange Act of 1934
and any statute successor thereto, in each case as amended from
time to time, and the rules and regulations promulgated
thereunder.
"Expiration Date" has the meaning specified in Section 1.4
hereof.
"Expiration Time" has the meaning specified in Section
5.7(a)(6) hereof.
"Failed Initial Remarketing" has the meaning specified in
Section 5.4 hereof.
"Failed Secondary Remarketing" has the meaning specified in
Section 5.5(b).
"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.
"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.
"Growth PRIDES" means the collective rights and obligations
of a Holder of a Growth PRIDES Certificate in respect of the
Treasury Securities, subject to the Pledge thereof, and the
related Purchase Contract.
"Growth PRIDES Certificate" means a certificate evidencing
the rights and obligations of a Holder in respect of the number of
Growth PRIDES specified on such certificate.
"Growth PRIDES Register" and "Growth PRIDES Registrar" have
the respective meanings specified in Section 3.5 hereof.
"Holder", when used with respect to a Security, means the
Person in whose name the Security evidenced by an Income PRIDES
Certificate and/or a Growth PRIDES Certificate is registered in
the related Income PRIDES Register and/or Growth PRIDES Register,
as the case may be.
"Income PRIDES" means the collective rights and obligations
of a Holder of an Income PRIDES 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.
"Income PRIDES Certificate" means a certificate evidencing
the rights and obligations of a Holder in respect of the number of
Income PRIDES specified on such certificate.
"Income PRIDES Register" and "Income PRIDES Registrar" have
the respective meanings specified in Section 3.5 hereof.
"Indenture" means the Indenture dated as of February 6,
2002 between the Company and the Indenture Trustee, as amended and
supplemented by the First Supplemental Indenture dated as of
February 6, 2002 between the Company and the Indenture Trustee.
"Indenture Trustee" means The Bank of New York, as trustee
under the Indenture, or any successor thereto.
"Initial Remarketing" has the meaning specified in Section
5.4 hereof.
"Initial Remarketing Date" has the meaning specified in
Section 5.4 hereof.
"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.
"New York Office" shall have the meaning set forth in
Section 10.2 hereof.
"Notes" means the series of senior notes of the Company
designated the senior notes due February 17, 2007, to be issued
under the Indenture as of the date hereof.
"NYSE" has the meaning specified in Section 5.1 hereof.
"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 Income PRIDES
or Growth PRIDES, means, as of the date of determination, all
Income PRIDES or Growth PRIDES, 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) Growth
PRIDES for which the Stated Amount of Treasury Securities
has been theretofore deposited with the Agent in trust for
the Holders of such Growth PRIDES and (B) Income PRIDES 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
Income PRIDES;
(ii) Income PRIDES or Growth PRIDES evidenced by
Certificates theretofore cancelled by the Agent or
delivered to the Agent for cancellation or deemed cancelled
pursuant to the provisions of this Agreement; and
(iii) Income PRIDES or Growth PRIDES evidenced by
Certificates in exchange for or in lieu of which other
Certificates have been authenticated, executed on behalf of
the Holder and delivered pursuant to this Agreement, other
than any such Certificate in respect of which there shall
have been presented to the Agent proof satisfactory to it
that such Certificate is held by a protected purchaser in
whose hands the Income PRIDES or Growth PRIDES evidenced by
such Certificate are valid obligations of the Company;
provided, however, that in determining whether the Holders
of the requisite number of the Income PRIDES or Growth
PRIDES have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Income
PRIDES or Growth PRIDES owned by 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 Income PRIDES or Growth PRIDES which a
Responsible Officer of the Agent actually knows to be so
owned shall be so disregarded. Income PRIDES or Growth
PRIDES so owned which have been pledged in good faith may
be regarded as Outstanding Securities if the pledgee
establishes to the satisfaction of the Agent the pledgee's
right so to act with respect to such Income PRIDES or
Growth PRIDES and that the pledgee is not the Company or
any Affiliate of the Company.
"Payment Date" means each February 17, May 17, August 17
and November 17, commencing May 17, 2002.
"Permitted Investments" has the meaning set forth in
Article1 of the Pledge Agreement.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint-stock company, limited liability company, trust,
unincorporated association or government or any agency or
political subdivision thereof or any other entity of whatever
nature.
"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
February 6, 2002, 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.
"Predecessor Certificate" means a Predecessor Income PRIDES
Certificate or a Predecessor Growth PRIDES Certificate.
"Predecessor Income PRIDES Certificate" of any particular
Income PRIDES Certificate means every previous Income PRIDES
Certificate evidencing all or a portion of the rights and
obligations of the Company and the Holder under the Income PRIDES
evidenced thereby; and, for the purposes of this definition, any
Income PRIDES Certificate authenticated and delivered under
Section 3.10 hereof in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Income PRIDES Certificate shall be
deemed to evidence the same rights and obligations of the Company
and the Holder as the mutilated, destroyed, lost or stolen Income
PRIDES Certificate.
"Predecessor Growth PRIDES Certificate" of any particular
Growth PRIDES Certificate means every previous Growth PRIDES
Certificate evidencing all or a portion of the rights and
obligations of the Company and the Holder under the Growth PRIDES
evidenced thereby; and, for the purposes of this definition, any
Growth PRIDES Certificate authenticated and delivered under
Section 3.10 hereof in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Growth PRIDES Certificate shall be
deemed to evidence the same rights and obligations of the Company
and the Holder as the mutilated, destroyed, lost or stolen Growth
PRIDES 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 1 of the
Pledge Agreement.
"Purchase Agreement" means the Purchase Agreement dated
January 31, 2002 between the Company, Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Gabelli & Company,
Inc. as underwriters.
"Purchase Contract", when used with respect to any
Security, means the contract forming a part of such Security and
obligating the Company to sell and the Holder of such Security to
purchase Common Stock on the terms and subject to the conditions
set forth in Article Five hereof.
"Purchase Contract Settlement Date" means February 17, 2005.
"Purchase Contract Settlement Fund" has the meaning
specified in Section 5.6 hereof.
"Purchase Price" has the meaning specified in Section 5.1
hereof.
"Purchased Shares" has the meaning specified in Section
5.7(a)(6) hereof.
"Quotation Agent" means (i) Xxxxxxx Xxxxx Government
Securities, Inc. and its respective successors or (ii) any other
primary U.S. government securities dealer in New York City
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, 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.
"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 Income PRIDES Register and the Growth
PRIDES Register.
"Registrar" means the Income PRIDES Registrar and the
Growth PRIDES Registrar.
"Remarketing Agent" has the meaning specified in Section
5.4 hereof.
"Remarketing Agreement" means the Remarketing Agreement
dated as of February 6, 2002 by and among the Company, the
Remarketing Agent and the Purchase Contract Agent.
"Remarketing Fee" has the meaning specified in Section 5.4
hereof.
"Remarketing Per Note Price" means the Treasury Portfolio
Purchase price divided by the number of Notes held as components
of Income PRIDES and remarketed in the Initial Remarketing.
"Reorganization Event" has the meaning specified in Section
5.7(b) hereof.
"Reset Agent" means a nationally recognized investment
banking firm chosen by the Company to determine the Reset Rate. It
is currently anticipated that Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated 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 November 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 year (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
Two 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 Two-Year
Benchmark Treasury in effect on the Secondary Remarketing Date;
provided, however, that the Reset Rate shall not exceed the
maximum rate permitted by applicable law.
"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 100.5% 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 100.5% of their principal amount on the Secondary
Remarketing Date.
"Responsible Officer", when used with respect to the Agent,
means any officer of the Agent assigned by the Agent with primary
responsibility to administer its duties and responsibilities
hereunder and under the Pledge Agreement.
"Secondary Remarketing" has the meaning specified in
Section 5.5(b) hereof.
"Secondary Remarketing Date" has the meaning specified in
Section 5.5(b) hereof.
"Security" means an Income PRIDES or a Growth PRIDES.
"Senior Indebtedness" means indebtedness of any kind of the
Company unless the instrument under which such indebtedness is
incurred expressly provides that it is on a parity in right of
payment with or subordinate in right of payment to the Contract
Adjustment Payments.
"Separate Notes" means Notes that are no longer a component
of Income PRIDES.
"Separate Notes Purchase Price" means the amount in cash
equal to the product of the Remarketing per Note Price multiplied
by the Number of Separate Notes remarketed in the Initial
Remarketing.
"Settlement Rate" has the meaning specified in Section 5.1
hereof.
"Stated Amount" means $25.
"Subsidiary" means (i) a corporation, a majority of whose
capital stock with voting power, under ordinary circumstances, to
elect directors is, at the date of determination, directly or
indirectly owned by the Company, by one or more Subsidiaries of
the Company or by the Company and one or more Subsidiaries of the
Company, (ii) a partnership in which the Company or a Subsidiary
of the Company holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than
a corporation) in which the Company, a Subsidiary of the Company
or the Company and one or more Subsidiaries of the Company,
directly or indirectly, at the date of determination, has (x) at
least a majority ownership interest or (y) the power to elect or
direct the election of a majority of the directors or other
governing body of such person.
"Successful Initial Remarketing" has the meaning specified
in Section 5.4 hereof.
"Successful Secondary Remarketing" has the meaning
specified in Section 5.5(b) hereof.
"Tax Event" means the receipt by the Company of an opinion
of a 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 February 6, 2002,
which amendment, change or proposed change is effective or which
interpretation or pronouncement is announced on or after Januarys
31, 2002, there is more than an insubstantial risk that interest
or original issue discount on the Notes 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' written notice.
"Tax Event Redemption Date" means the date upon which a Tax
Event Redemption is to occur.
"Tax Event Redemption Principal Amount" means for each Note
either (i) if the Tax Event Redemption Date occurs prior to
November 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
Income PRIDES on the Tax Event Redemption Date or (ii) if the Tax
Event Redemption Date occurs on or after November 17, 2004 or, in
the event of a Failed Initial Remarketing, on or after the
Purchase Contract Settlement Date, the Treasury Portfolio Purchase
Price and whose denominator is the aggregate principal amount of
the Notes outstanding on such Tax Event Redemption Date.
"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 under the Bankruptcy Code 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.
"Threshold Appreciation Price" has the meaning specified in
Section 5.1 hereof.
"TIA" means the Trust Indenture Act of 1939, as amended, or
any successor statute.
"Trading Day" has the meaning specified in Section 5.1
hereof.
"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 that mature on or prior to February 15, 2005
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 that
mature on or prior to such date 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 4.1 hereof and (2) in connection with a Tax
Event Redemption, (a) if the Tax Event Redemption Date occurs
prior to November 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 February 15, 2005 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 that 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, and (b) if
the Tax Event Redemption Date occurs on or after November 17, 2004
or, in the event of a Failed Initial Remarketing, on or after 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 February
15, 2005 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, principal or interest strips of such
U.S. Treasury Securities that 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
November 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 that mature on February 15, 2005.
"Two-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 Two-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 Two-Year Benchmark Treasury
shall be, as calculated by the Reset Agent, the yield to maturity
for the Two-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).
"Two 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 Two 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 Two and
One-Quarter Year Benchmark Treasury shall be, as calculated by the
Reset Agent, the yield to maturity for the Two 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).
"Vice President" means any vice president, whether or not
designated by a number or a word or words added before or after
the title "vice president".
Section 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement,
upon any application or request by the Company to the Agent to
take any action under any provision of this Agreement, the Company
shall furnish to the Agent an 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 addressed
to the Agent 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 1.3 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 1.4 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Agent and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Agreement and (subject to
Section 7.1) conclusive in favor of the Agent and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Agent deems
sufficient.
(c) The ownership of Securities shall be proved by the Income
PRIDES Register or the Growth PRIDES 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 Income PRIDES and the
outstanding Growth PRIDES, as the case may be, on such record date, and no
other Holders, shall be entitled to take the relevant action with respect
to the Income PRIDES or the Growth PRIDES, as the case may be, whether or
not such Holders remain Holders after such record date; provided that no
such action shall be effective hereunder unless taken 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 cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite number of Outstanding 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 1.6.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to
time may change the Expiration Date to any earlier or later day; provided
that no such change shall be effective unless notice of the proposed new
Expiration Date is given to the Agent in writing, and to each Holder of
Securities in the manner set forth in Section 1.6, on or prior to the
existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the Company shall
be deemed to have initially designated the 180th day after such record date
as the Expiration Date with respect thereto, subject to its right to change
the Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
Section 1.5 Notices.
Any request, demand, authorization, direction, instruction,
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
(which may be via facsimile) and personally delivered or mailed,
first-class postage prepaid, to the Agent at 0 Xxxx Xxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, Attention: Corporate Trust Administration, with a
copy to the Agent, 0 Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, 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 Xxx Xxxxxxxxx Xxxxxx, Xxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxxxx, 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 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Institutional Trust Services, 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 0 Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
Corporate Trust Administration, with a copy to the Agent, or at any
other address previously furnished in writing by the Indenture Trustee
to the Company.
Section 1.6 Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at its address as it appears in the
applicable Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Agreement provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the 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 1.7 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.8 Successors and Assigns.
All covenants and agreements in this Agreement by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.9 Separability Clause.
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 ANY CONFLICT OF LAW PROVISION THAT WOULD REQUIRE THE APPLICATION
OF THE LAW OF ANY OTHER JURISDICTION.
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 Income PRIDES Certificates or the Growth PRIDES
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, provided that no interest shall accrue or be
payable by the Company or to any Holder for the period from and after any
such Payment Date unless there shall be a default in the payment due on
such next succeeding Business Day, except that, if such next succeeding
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day with the same force and
effect as if made on the applicable Payment 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.
Section 1.15 Appointment of Financial Institution as Agent for the
Company.
The Company may appoint a financial institution (which may be the
Collateral Agent) to act as its agent in performing its obligations and in
accepting and enforcing performance of the obligations of the Agent and the
holders, under this Agreement and the Purchase Contracts, by giving notice
of such appointment in the manner provided in Section 1.5 hereof. Any such
appointment shall not relieve the Company in any way from its obligation
hereunder.
Section 1.16 No Waiver.
No failure on the part of the Company, the Agent, the Collateral
Agent, the Securities Intermediary or any of their respective agents to
exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Company, the
Agent, the Collateral Agent, the Securities Intermediary or any of their
respective agents of any right, power or remedy hereunder preclude any
further exercise thereof or the exercise of any right, power or remedy. The
remedies herein are cumulative and are not exclusive of any remedies
provided by law.
Article II
Certificate Forms
Section 2.1 Forms of Certificates Generally.
The Income PRIDES Certificates (including the form of Purchase
Contract forming part of the Income PRIDES 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 Income PRIDES are
listed or any depositary therefor, or as may, consistently herewith, be
determined by the officers of the Company executing such Income PRIDES
Certificates, as evidenced by their execution of the Income PRIDES
Certificates.
The definitive Income PRIDES Certificates may 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 Income PRIDES Certificates, consistent with the provisions
of this Agreement, as evidenced by their execution thereof.
The Growth PRIDES Certificates (including the form of Purchase
Contract forming part of the Growth PRIDES 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 Growth PRIDES are
listed or any depositary therefor, or as may, consistently herewith, be
determined by the officers of the Company executing such Growth PRIDES
Certificates, as evidenced by their execution of the Growth PRIDES
Certificates.
The definitive Growth PRIDES Certificates may 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 Growth PRIDES 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 2.2 Form of Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the
Income PRIDES shall be in substantially the form set forth on the form of
the Income PRIDES Certificates.
The form of the Agent's certificate of authentication of the
Growth PRIDES shall be in substantially the form set forth on the form of
the Growth PRIDES Certificates.
Article III
The Securities
Section 3.1 Title and Terms; Denominations.
The aggregate number of Income PRIDES and Growth PRIDES evidenced
by Certificates authenticated, executed on behalf of the Holders and
delivered hereunder is limited to 3,600,000 (or 3,800,000 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 3.4, 3.5, 3.9, 3.10, 3.13, 3.14, 5.10 or 8.5 hereof.
The Certificates shall be issuable only in registered form and
only in denominations of a single Income PRIDES or Growth PRIDES and any
integral multiple thereof.
Section 3.2 Rights and Obligations Evidenced by the Certificates.
Each Income PRIDES Certificate shall evidence the number of Income
PRIDES specified therein, with each such Income PRIDES 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 Income PRIDES 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 Income PRIDES, to the Collateral Agent and grant to the Collateral
Agent a security interest in the right, title, and interest of such Holder
in such 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
shares of Common Stock.
Each Growth PRIDES Certificate shall evidence the number of Growth
PRIDES specified therein, with each such Growth PRIDES representing the
ownership by the Holder thereof of a 1/40, or 2.5%, undivided beneficial
ownership 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 Growth PRIDES 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.
Prior to the purchase of shares of Common Stock under each
Purchase Contract, such Purchase Contract shall not entitle the older of a
Security to any rights of a holder of shares of Common Stock, including,
without limitation, the right to vote or receive any dividends or other
payments or to consent or to receive notice as a shareholder in respect of
the meetings of shareholders or for the election of directors of the
Company or for any other matter, or any other rights whatsoever as a
shareholder of the Company.
Section 3.3 Execution, Authentication, Delivery and Dating.
Subject to the provisions of Sections 3.13 and 3.14 hereof, upon
the execution and delivery of this Agreement, and at any time and from time
to time thereafter, the Company may deliver Certificates executed by the
Company to the 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 3.4 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 that 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 Income PRIDES
or Growth PRIDES 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 cancellation of any one or more temporary Certificates,
the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, one or more definitive Certificates of like tenor and
denominations and evidencing a like number of Income PRIDES or Growth
PRIDES, 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 Income PRIDES or Growth PRIDES, as the case may be, evidenced
thereby as definitive Certificates. Section 3.5 Registration; Registration
of Transfer and Exchange.
The Agent shall keep at the Corporate Trust Office a Register (the
"Income PRIDES Register") in which, subject to such reasonable regulations
as it may prescribe, the Agent shall provide for the registration of Income
PRIDES Certificates and of transfers of Income PRIDES Certificates (the
Agent, in such capacity, the "Income PRIDES Registrar") and a Register (the
"Growth PRIDES Register") in which, subject to such reasonable regulations
as it may prescribe, the Agent shall provide for the registration of Growth
PRIDES Certificates and of transfers of Growth PRIDES Certificates (the
Agent, in such capacity, the "Growth PRIDES 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 Income PRIDES or Growth PRIDES, 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 Income PRIDES or Growth PRIDES, 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 that 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 Income PRIDES or Growth PRIDES, as the case may be, and be entitled to
the same benefits and subject to the same obligations, under this Agreement
as the Income PRIDES or Growth PRIDES, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
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 3.4, 3.6, 3.9 and 8.5 hereof 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 Five
hereof.
Notwithstanding anything in this Agreement to the contrary, no
transfer by any Holder to any Person other than the Company of any Income
PRIDES, Growth PRIDES or Note may be made or will be recognized unless such
instrument has been surrendered and accepted for registration of transfer
in accordance with the provisions of this Section 3.5, or unless such
transfer is effectuated through the book-entry system described in Section 3.6.
Section 3.6 Book-Entry Interests.
The Certificates, on original issuance, will be issued in the form
of one or more fully registered Global Certificates, to be delivered to the
Depositary by, or on behalf of, the Company. Such Global Certificate shall
initially be registered on the books and records of the Company in the name
of Cede & Co., the nominee of the Depositary, and no Beneficial Owner will
receive a definitive Certificate representing such Beneficial Owner's
interest in such Global Certificate, except as provided in Section 3.9
hereof. 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 3.9
hereof:
(a) the provisions of this Section 3.6 hereof shall be in full
force and effect;
(b) the Company and the Agent shall be entitled to deal with the
Clearing Agency for all purposes of this Agreement (including 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 3.6 hereof
conflict with any other provisions of this Agreement, the provisions of
this Section 3.6 hereof 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 3.7 Notices to Holders.
Whenever a notice or other communication to the Holders is
required to be given under this Agreement, the Company or the 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 Agent shall, except as set forth
herein, have no obligations to the Beneficial Owners.
Section 3.8 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities, the Company may, in
its sole discretion, appoint a successor Clearing Agency with respect to
the Securities.
Section 3.9 Definitive Certificates.
If (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 3.8 hereof or (ii) 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.
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 Income PRIDES or Growth PRIDES, 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 protected purchaser, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver to the Holder,
in lieu of any such destroyed, lost or stolen Certificate, a new
Certificate, evidencing the same number of Income PRIDES or Growth PRIDES,
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 Five
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 Income PRIDES or Growth PRIDES evidenced thereby, for the
purpose of (subject to any applicable Record Date) receiving interest on
the Notes or on the maturing quarterly interest strips of the Treasury
Portfolio, as applicable, receiving payments of Contract Adjustment
Payments (if any), for the 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. None of the Company, the
Agent nor any agent of the Company or the Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global
Certificate or maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Section 3.12 Cancellation.
All Certificates surrendered for delivery of shares of Common
Stock on or after the Purchase Contract Settlement Date, upon the transfer
of 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 re-establishment of an Income PRIDES or Growth PRIDES
shall, if surrendered to any Person other than the Agent, be delivered to
the Agent and, if not already cancelled, shall be promptly cancelled by it.
The Company may at any time deliver to the Agent for cancellation any
Certificates previously authenticated, executed and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all
Certificates so delivered shall, upon Issuer Order, be promptly cancelled
by the Agent. No Certificates shall be authenticated, executed on behalf of
the Holder and delivered in lieu of or in exchange for any Certificates
cancelled as provided in this Section, except as expressly permitted by
this Agreement. All cancelled Certificates held by the Agent shall be
disposed of by the Agent in its customary manner.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Agent
cancelled or for cancellation.
Section 3.13 Establishment of Growth PRIDES.
Subject to the conditions set forth in this Agreement, a Holder
may separate the Notes or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as applicable, from the related Purchase Contracts
in respect of an Income PRIDES by substituting for such Notes or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, Treasury Securities in an aggregate principal amount of such
Notes or the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio, as
applicable (a "Collateral Substitution"), at any time from and after the
date of this Agreement and on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date in the case of
the Notes and on or prior to the second Business Day immediately preceding
the Purchase Contract Settlement Date in the case of the appropriate
Applicable Ownership Interest of the Treasury Portfolio, in each case by
(a) depositing with the Collateral Agent Treasury Securities having an
aggregate principal amount at maturity equal to the aggregate principal
amount of the Notes comprising part of such Income PRIDES or the
appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio comprising part of
such Income PRIDES, as the case may be, and (b) transferring the related
Income PRIDES 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 or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, underlying such Income PRIDES,
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 or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, having the appropriate aggregate
principal amount in the case of such Notes or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, from the
Pledge, free and clear of the Company's security interest therein, and upon
receipt thereof the Agent shall promptly:
(i) cancel the related Income PRIDES;
(ii) transfer the Notes or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, to the Holder;
and
(iii) authenticate, execute on behalf of such Holder and deliver
a Growth PRIDES Certificate executed by the Company in accordance with
Section 3.3 hereof evidencing the same number of Purchase Contracts as
were evidenced by the cancelled Income PRIDES.
Holders who elect to separate the Notes or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, from the related Purchase Contract and to substitute Treasury
Securities for such Notes or the appropriate Applicable Ownership Interest
of the Treasury Portfolio, as the case may be, 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 (i) only in integral
multiples of 40 Income PRIDES if Treasury Securities are being substituted
for by the Notes, or (ii) only in integral multiples of 8,000 Income PRIDES
if Treasury Securities are being substituted for appropriate Applicable
Ownership Interest of the Treasury Portfolio.
In the event a Holder making a Collateral Substitution pursuant to
this Section 3.13 fails to effect a book-entry transfer of the Income
PRIDES or fails to deliver an Income PRIDES Certificate(s) to the Agent
after depositing Treasury Securities with the Collateral Agent, the Notes
or the appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be, constituting a part of such Income PRIDES, and any
interest on such Note or the Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, shall be held in the name of the Agent or
its nominee in trust for the benefit of such Holder, until such Income
PRIDES are so transferred or the Income PRIDES Certificate is so delivered,
as the case may be, or, with respect to an Income PRIDES Certificate, such
Holder provides evidence satisfactory to the Company and the Agent that
such Income PRIDES 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 an Income PRIDES remains in effect, such
Income PRIDES shall not be separable into its constituent parts, and the
rights and obligations of the Holder in respect of the Notes or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, and Purchase Contract comprising such Income PRIDES may be
acquired, and may be transferred and exchanged, only as an Income PRIDES.
Section 3.14 Reestablishment of Income PRIDES.
Subject to the conditions set forth in this Agreement, a Holder of
a Growth PRIDES may recreate Income PRIDES at any time (i) on or prior to
the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, if a Tax Event Redemption or a Successful Initial
Remarketing has not occurred, and (ii) on or prior to the second Business
Day immediately preceding the Purchase Contract Settlement Date, if a Tax
Event Redemption or a Successful Initial Remarketing has occurred and an
Applicable Ownership Interest in the Treasury Portfolio has become a
component of the Income PRIDES, in each case by (a) depositing with the
Collateral Agent Notes or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, having an aggregate principal
amount in the case of the Notes, or an appropriate Applicable Ownership
Interest (as defined in clause (A) of the definition of such term) of the
Treasury Portfolio, as the case may be, equal to the aggregate principal
amount of the Treasury Securities comprising part of the Growth PRIDES and
(b) transferring the related Growth PRIDES 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 or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, to the Collateral Agent and requesting that the Agent instruct
the Collateral Agent to release the Treasury Securities underlying such
Growth PRIDES, 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 or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, 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 Growth PRIDES;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and deliver
an Income PRIDES Certificate executed by the Company in accordance with
Section 3.3 hereof evidencing the same number of Purchase Contracts as were
evidenced by the cancelled Growth PRIDES.
Holders who elect to reestablish Income PRIDES shall be
responsible for any fees or expenses (including, without limitation, fees
and expenses payable to the Collateral Agent for its services as Collateral
Agent) in respect of the reestablishment and the Company shall not be
responsible for any such fees.
Holders of Growth PRIDES may reestablish Income PRIDES in integral
multiples of 40 Growth PRIDES for the same multiple of 40 Income PRIDES if
a Tax Event Redemption or a Successful Initial Remarketing has not
occurred, and in integral multiples of 8,000 Growth PRIDES for 8,000 Income
PRIDES if a Tax Event Redemption or a Successful Initial Remarketing has
occurred.
In the event a Holder re-establishing Income PRIDES pursuant to
this Section 3.14 fails to effect a book-entry transfer of the Growth
PRIDES or fails to deliver a Growth PRIDES Certificate(s) to the Agent
after depositing Notes or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, with the Collateral Agent, the
Treasury Securities constituting a part of such Growth PRIDES shall be held
in the name of the Agent or its nominee in trust for the benefit of such
Holder, until such Growth PRIDES are so transferred or the Growth PRIDES
Certificate is so delivered, as the case may be, or, with respect to a
Growth PRIDES Certificate, such Holder provides evidence satisfactory to
the Company and the Agent that such Growth PRIDES 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 Growth PRIDES remains in effect, such Growth
PRIDES shall not be separable into its constituent parts and the rights and
obligations of the Holder of such Growth PRIDES in respect of the Treasury
Security and Purchase Contract comprising such Growth PRIDES may be
acquired, and may be transferred and exchanged, only as a Growth PRIDES.
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 Income PRIDES and the Growth PRIDES 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 Income PRIDES Register or the Growth PRIDES Register, as the
case may be. Upon book-entry transfer of the Income PRIDES or Growth PRIDES
or delivery of an Income PRIDES Certificate or a Growth PRIDES Certificate
to the Agent with such transfer instructions, the Agent shall transfer the
Notes, the Applicable Ownership Interest of the Treasury Portfolio or
Treasury Securities, as the case may be, underlying such Income PRIDES or
Growth PRIDES, as the case may be, to such Holder by book-entry transfer,
or other appropriate procedures, in accordance with such instructions;
provided, however, that, to the extent that a Holder of Income PRIDES or
Growth PRIDES would otherwise be entitled to receive less than $1,000
principal amount at maturity of the Treasury Portfolio or the Treasury
Securities, the Agent shall dispose of such securities for cash, and
transfer the appropriate amount of such cash to such Holder in accordance
with such Holder's instructions. In the event a Holder of Income PRIDES or
Growth PRIDES fails to effect such transfer or delivery, the Notes, the
appropriate Applicable Ownership Interest of the Treasury Portfolio or
Treasury Securities, as the case may be, underlying such Income PRIDES or
Growth PRIDES, as the case may be, and any distributions thereon, shall be
held in the name of the Agent or its nominee in trust for the benefit of
such Holder, until such Income PRIDES or Growth PRIDES are transferred or
the Income PRIDES Certificate or Growth PRIDES Certificate is surrendered
or such Holder provides satisfactory evidence that such Income PRIDES
Certificate or Growth PRIDES Certificate has been destroyed, lost or
stolen, together with any indemnity that may be required by the Agent and
the 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 and Applicable Ownership Interest in the
Treasury Portfolio
Section 4.1 Interest and Other Payments; Rights to Payments
Preserved; Rate Reset; Notice.
Any distribution on any Note or on the appropriate Applicable
Ownership Interest in the Treasury Portfolio, as the case may be, which is
made on any Payment Date shall, subject to receipt thereof by the Agent
from the Collateral Agent as provided by the terms of the Pledge Agreement,
be paid to the Person in whose name the Income PRIDES Certificate (or one
or more Predecessor Income PRIDES Certificates) of which such 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 Income PRIDES Certificate evidencing Notes or the appropriate
Applicable Ownership interest in the Treasury Portfolio delivered under
this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Income PRIDES Certificate shall carry the rights to
accrued and unpaid distributions, and other amounts that are to accrue,
which were or will be carried by the Notes or the appropriate Applicable
Ownership Interest in the Treasury Portfolio underlying such other Income
PRIDES Certificate.
In the case of any Income PRIDES 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 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 Income PRIDES otherwise payable on such Payment Date shall
be payable on such Payment Date notwithstanding such Cash Settlement or
Early Settlement or Collateral Substitution, and such distributions shall,
subject to receipt thereof by the Agent, be payable to the Person in whose
name the Income PRIDES Certificate (or one or more Predecessor
Certificates) was registered at the close of business on the Record Date.
Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Income PRIDES with respect to which Cash
Settlement or Early Settlement of the underlying Purchase Contract is
effected on the Business Day immediately preceding the Purchase Contract
Settlement Date or an Early Settlement Date, as the case may be, or with
respect to which a Collateral Substitution has been effected, 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 Income PRIDES; provided,
however, that to the extent that such Holder continues to hold the
separated Notes that formerly comprised a part of such Holder's Income
PRIDES, such Holder shall be entitled to receive any payments made on such
separated Notes.
The applicable Coupon Rate on the Notes on and after November 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 November 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
Two-Year Benchmark Treasury or Two 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 Holders of Notes will be notified of such Reset Spread and
Two-Year Benchmark Treasury or Two 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 fifteen calendar
days prior to the Reset Announcement Date, the Company will notify DTC or
its nominee (or any successor Clearing Agency or its nominee) by
first-class mail, postage prepaid, to notify the Beneficial Owners or
Clearing Agency Participants holding Income PRIDES or Growth PRIDES of such
Reset Announcement Date and, in the case of a Secondary Remarketing, the
procedures to be followed by Holders of Income PRIDES who intend to settle
their obligation under the Purchase Contract with separate cash on the
Purchase Contract Settlement Date.
Section 4.2 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 Income
PRIDES 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 Income PRIDES and
(c) stating the manner in which such instructions may be given. Upon the
written request of the Holders of Income PRIDES 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 an
Income PRIDES, the Agent shall abstain from voting the Notes underlying
such Income PRIDES. The Company hereby agrees, if applicable, to solicit
Holders of Income PRIDES to timely instruct the Agent in order to enable
the Agent to vote such Notes.
Section 4.3 Tax Event Redemption.
Upon the occurrence of a Tax Event Redemption prior to November
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 Income PRIDES, an amount equal
to the aggregate Redemption Amount for the Notes that are components of
Income PRIDES to purchase on behalf of the Holders of Income PRIDES the
Treasury Portfolio and promptly remit the remaining portion of such
Redemption Price to the Agent for payment to the Holders of such Income
PRIDES. The 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 an Income
PRIDES to purchase the Common Stock of the Company under the Purchase
Contract constituting a part of such Income PRIDES. Following the
occurrence of a Tax Event Redemption prior to November 17, 2004, or, in the
event of a Failed Initial Remarketing, prior to the Purchase Contract
Settlement Date, the Holders of Income PRIDES and the Collateral Agent
shall have such security interests, rights and obligations with respect to
the Treasury Portfolio as the Holder of Income PRIDES 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 Income PRIDES
Certificates thereafter to be issued such change in phraseology and form
(but not in substance) as may be appropriate to reflect the substitution of
the Treasury Portfolio for Notes as collateral.
Section 4.4 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 5.1 Purchase of Shares of Common Stock.
Each Purchase Contract shall, 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 fraction of a newly issued share of Common Stock equal to the
Settlement Rate unless an Early Settlement has occurred in accordance with
Section 5.10 hereof, or, 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 $46.50 (the "Threshold Appreciation Price"), shares of
common stock per purchase contract .5376, which is equal to the Stated
Amount divided by the Threshold Appreciation Price, (b) if the Applicable
Market Value is less than the Threshold Appreciation Price but is greater
than $39.40, (the "Reference Price"), 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 the Reference Price, .6345 shares of common stock per purchase contract,
in each case subject to adjustment as provided in Section 5.7 (and in each
case rounded upward or downward to the nearest 1/10,000th of a share). As
provided in Section 5.11, no fractional shares of Common Stock will be
issued upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 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 pursuant to
Section 5.11 hereof, 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 sale price is
reported, the last reported sale price) of the Common Stock on The New York
Stock Exchange (the "NYSE") on any such date; or, if the Common Stock is
not listed for trading on the NYSE on any such date, the closing sale price
as reported in the composite transactions for the principal United States
national or regional 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, the last closing sale price of the Common
Stock 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 Closing
Price means the market value of the Common Stock on the date 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 an Income PRIDES or a Growth PRIDES, 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 an Income
PRIDES or a Growth PRIDES, by its acceptance thereof, further covenants and
agrees that, to the extent and in the manner provided in Section 5.5 hereof
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) by the terms of this Agreement, the Purchase Contracts
underlying such Certificate and the Pledge Agreement and the transferor
shall be released from the obligations under this Agreement, the Purchase
Contracts underlying the Certificates so transferred and the Pledge
Agreement. The Company covenants and agrees, and each Holder of a
Certificate, by its acceptance thereof, likewise covenants and agrees, to
be bound by the provisions of this paragraph.
Section 5.2 Contract Adjustment Payments.
(a) Subject to Section 5.3 herein, the Company shall pay, on each
Payment Date, the Contract Adjustment Payments, if any, payable in respect
of each Purchase Contract to the Person in whose name a Certificate (or one
or more Predecessor Certificates) is registered at the close of business on
the Record Date next preceding such Payment Date in such coin or currency
of the United States as at the time of payment shall be legal tender for
payments. The Contract Adjustment Payments, if any, will be payable at the
New York Office maintained for that purpose or, at the option of the
Company, by check mailed to the address of the Person entitled thereto at
such Person's address as it appears on the Income PRIDES Register or the
Growth PRIDES Register or by wire transfer to the account designated by a
prior written notice by such Person.
Upon the occurrence of a Termination Event, the Company's
obligation to pay Contract Adjustment Payments (including any accrued
Deferred Contract Adjustment Payments), if any, shall cease.
Each Certificate delivered under this Agreement upon registration
of transfer of or in exchange for or in lieu of (including as a result of a
Collateral Substitution or the re-establishment of an Income PRIDES) any
other Certificate shall carry the rights to Contract Adjustment Payments,
if any, accrued and unpaid, and to accrue Contract Adjustment Payments, if
any, which were carried by the Purchase Contracts underlying such other
Certificates.
Subject to Section 5.10 hereof, in the case of any Security with
respect to which Early Settlement of the underlying Purchase Contract is
effected on an Early Settlement Date, or in respect of which Cash
Settlement of the underlying Purchase Contract is effected on the Business
Day immediately preceding the Purchase Contract Settlement Date, or with
respect to which a Collateral Substitution or an establishment or
re-establishment of Income PRIDES pursuant to Section 3.14 hereof is
effected, in each case on a date that is after any Record Date and on or
prior to the next succeeding Payment Date, Contract Adjustment Payments on
the Purchase Contracts underlying such Securities otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such
Cash Settlement, Early Settlement, Collateral Substitution or establishment
or re-establishment of Income PRIDES, and such Contract Adjustment Payments
shall be paid to the Person in whose name the Certificate evidencing such
Security (or one or more Predecessor Certificates) is registered at the
close of business on such Record Date.
Except as otherwise expressly provided in the immediately
preceding sentence, in the case of any Security with respect to which Cash
Settlement or Early Settlement of the underlying Purchase Contract is
effected on the Business Day immediately preceding the Purchase Contract
Settlement Date or on an Early Settlement Date, as the case may be, or with
respect to which a Collateral Substitution or an establishment or
re-establishment of Income PRIDES has been effected, Contract Adjustment
Payments, if any, that would otherwise be payable after the Purchase
Contract Settlement Date or Early Settlement Date, Collateral Substitution
or such establishment or reestablishment with respect to such Purchase
Contract shall not be payable.
(b) The Company's obligations with respect to Contract Adjustment
Payments, if any, will be subordinated and junior in right of payment to
the Company's obligations under any Senior Indebtedness.
(c) In the event (x) of any payment by, or distribution of assets
of, the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution, winding-up, liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, or (y) subject
to the provisions of Subsection 5.2(e) below, that (i) a default shall have
occurred and be continuing with respect to the payment of principal,
interest or any other monetary amounts due and payable on any Senior
Indebtedness and such default shall have continued beyond the period of
grace, if any, specified in the instrument evidencing such Senior
Indebtedness (and the Agent shall have received written notice thereof from
the Company or one or more holders of Senior Indebtedness or their
representative or representatives or the trustee or trustees under any
indenture pursuant to which any such Senior Indebtedness may have been
issued), or (ii) the maturity of any Senior Indebtedness shall have been
accelerated because of a default in respect of such Senior Indebtedness
(and the Agent shall have received written notice thereof from the Company
or one or more holders of Senior Indebtedness or their representative or
representatives or the trustee or trustees under any indenture pursuant to
which any such Senior Indebtedness may have been issued), then:
(i) the holders of all Senior Indebtedness shall first be
entitled to receive, in the case of clause (x) above, payment in full
of all amounts due or to become due upon all Senior Indebtedness and,
in the case of subclauses (i) and (ii) of clause (y) above, payment of
all amounts due thereon, or provision shall be made for such payment
in money or money's worth, before the Holders of any of the Securities
are entitled to receive any Contract Adjustment Payments on the
Purchase Contracts underlying the Securities;
(ii) any payment by, or distribution of assets of, the Company
of any kind or character, whether in cash, property or securities, to
which the Holders of any of the Securities would be entitled except
for the provisions of Subsections 5.2(b) through (n), including any
such payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Company being
subordinated to the payment of such Contract Adjustment Payments on
the Purchase Contracts underlying the Securities, shall be paid or
delivered by the Person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of such Senior
Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid after
giving effect to any concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness, before any
payment or distribution is made of such Contract Adjustment Payments
to the Holders of such Securities; and
(iii) in the event that, notwithstanding the foregoing, any
payment by, or distribution of assets of, the Company of any kind or
character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being
subordinated to the payment of Contract Adjustment Payments on the
Purchase Contracts underlying the Securities, shall be received by the
Agent or the Holders of any of the Securities when such payment or
distribution is prohibited pursuant to Subsections 5.2(b) through (n),
such payment or distribution shall be paid over to the holders of such
Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture pursuant to which any
instruments evidencing any such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness.
(d) For purposes of Subsections 5.2(b) through (n), the words
"cash, property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of the
Company or any other Person provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the extent
provided in Subsections 5.2(b) through (n) with respect to such Contract
Adjustment Payments on the Securities to the payment of all Senior
Indebtedness which may at the time be outstanding; provided that (i) the
indebtedness or guarantee of indebtedness, as the case may be, that
constitutes Senior Indebtedness is assumed by the Person, if any, resulting
from any such reorganization or readjustment, and (ii) the rights of the
holders of the Senior Indebtedness are not, without the consent of each
such holder adversely affected thereby, altered by such reorganization or
readjustment.
(e) Any failure by the Company to make any payment on or perform
any other obligation under Senior Indebtedness, other than any indebtedness
incurred by the Company or assumed or guaranteed, directly or indirectly,
by the Company for money borrowed (or any deferral, renewal, extension or
refunding thereof) or any indebtedness or obligation as to which the
provisions of Subsections 5.2(b) through (d) shall have been waived by the
Company in the instrument or instruments by which the Company incurred,
assumed, guaranteed or otherwise created such indebtedness or obligation,
shall not be deemed a default or event of default if (i) the Company shall
be disputing its obligation to make such payment or perform such obligation
and (ii) either (A) no final judgment relating to such dispute shall have
been issued against the Company which is in full force and effect and is
not subject to further review, including a judgment that has become final
by reason of the expiration of the time within which a party may seek
further appeal or review, and (B) in the event a judgment that is subject
to further review or appeal has been issued, the Company shall in good
faith be prosecuting an appeal or other proceeding for review and a stay of
execution shall have been obtained pending such appeal or review.
(f) Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated (equally and ratably with the
holders of all obligations of the Company which by their express terms are
subordinated to Senior Indebtedness of the Company to the same extent as
payment of the Contract Adjustment Payments in respect of the Purchase
Contracts underlying the Securities is subordinated and which are entitled
to like rights of subrogation) to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness until all
such Contract Adjustment Payments owing on the Securities shall be paid in
full, and as between the Company, its creditors other than holders of such
Senior Indebtedness and the Holders, no such payment or distribution made
to the holders of Senior Indebtedness by virtue of Subsections 5.2(b)
through (n) that otherwise would have been made to the Holders shall be
deemed to be a payment by the Company on account of such Senior
Indebtedness, it being understood that the provisions of Subsections 5.2(b)
through (n) are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of Senior
Indebtedness, on the other hand.
(g) Nothing contained in Subsections 5.2(b) through (n) or
elsewhere in this Agreement or in the Securities is intended to or shall
impair, as among the Company, its creditors other than the holders of
Senior Indebtedness and the Holders, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders such Contract
Adjustment Payments on the Securities as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders and creditors of the Company
other than the holders of Senior Indebtedness, nor shall anything herein or
therein prevent the Agent or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this Agreement,
subject to the rights, if any, under these Subsections 5.2(b) through (n),
of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
(h) Upon payment or distribution of assets of the Company referred
to in these Subsections 5.2(b) through (n), the Agent and the Holders shall
be entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending
or upon a certificate of the trustee in bankruptcy, receiver, assignee for
the benefit of creditors, liquidating trustee or agent or other person
making any payment or distribution, delivered to the Agent or to the
Holders, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to these Subsections 5.2(b) through (n).
(i) The Agent shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee or representative on behalf of such holder) to
establish that such notice has been given by a holder of Senior
Indebtedness or a trustee or representative on behalf of any such holder or
holders. In the event that the Agent determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant
to Subsections 5.2(b) through (n), the Agent may request such Person to
furnish evidence to the reasonable satisfaction of the Agent as to the
amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under Subsections 5.2(b)
through (n), and, if such evidence is not furnished, the Agent may defer
payment to such Person pending judicial determination as to the right of
such Person to receive such payment.
(j) Nothing contained in Subsections 5.2(b) through (n) shall
affect the obligations of the Company to make, or prevent the Company from
making, payment of the Contract Adjustment Payments, except as otherwise
provided in these Subsections 5.2(b) through (n).
(k) Each Holder of Securities, by his acceptance thereof,
authorizes and directs the Agent on his, her or its behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in Subsections 5.2(b) through (n) and appoints the Agent his, her
or its attorney-in-fact, as the case may be, for any and all such purposes.
(l) The Company shall give prompt written notice to the Agent of
any fact known to the Company that would prohibit the making of any payment
of moneys to or by the Agent in respect of the Securities pursuant to the
provisions of this Section. Notwithstanding the provisions of Subsections
5.2(b) through (e) or any other provisions of this Agreement, the Agent
shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of moneys to or by the Agent, or
the taking of any other action by the Agent, unless and until the Agent
shall have received written notice thereof mailed or delivered to a
Responsible Officer of the Agent from the Company, any Holder, any paying
agent or the holder or representative of any Senior Indebtedness; provided
that if at least two Business Days prior to the date upon which by the
terms hereof any such moneys may become payable for any purpose, the Agent
shall not have received with respect to such moneys the notice provided for
in this Section, then, anything herein contained to the contrary
notwithstanding, the Agent shall have full power and authority to receive
such moneys and to apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary that may
be received by it within two Business Days prior to or on or after such
date.
(m) The Agent in its individual capacity shall be entitled to all
the rights set forth in this Section with respect to any Senior
Indebtedness at the time held by it, to the same extent as any other holder
of Senior Indebtedness and nothing in this Agreement shall deprive the
Agent of any of its rights as such holder.
(n) No right of any present or future holder of any Senior
Indebtedness to enforce the subordination herein shall at any time or in
any way be prejudiced or impaired by any act or failure to act on the part
of the Company or by any noncompliance by the Company with the terms,
provisions and covenants of this Agreement, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with.
(o) Nothing in this Section 5.2 shall apply to claims of, or
payments to, the Agent under or pursuant to Section 7.7 hereof.
With respect to the holders of Senior Indebtedness, (i) the duties
and obligations of the Agent shall be determined solely by the express
provisions of this Agreement; (ii) the Agent shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement; (iii) no implied covenants or obligations shall be
read into this Agreement against the Agent; and (iv) the Agent shall not be
deemed to be a fiduciary as to such holders.
Section 5.3 Deferral of Payment Dates For Contract Adjustment Payments.
(a) The Company shall have the right, at any time prior to the
Purchase Contract Settlement Date, to defer the payment of any or all of
the Contract Adjustment Payments otherwise payable on any Payment Date, but
only if the Company shall give the Holders and the Agent written notice of
its election to defer such payment (specifying the amount to be deferred)
at least ten Business Days prior to the earlier of (i) the next succeeding
Payment Date or (ii) the date the Company is required to give notice of the
Record Date or Payment Date with respect to payment of such Contract
Adjustment Payments to the NYSE or other applicable self-regulatory
organization or to Holders of the Securities, but in any event not less
than one Business Day prior to such Record Date. Any Contract Adjustment
Payments so deferred shall, to the extent permitted by law, bear additional
Contract Adjustment Payments thereon at the rate of 6.95% per year
(computed on the basis of a 360-day year of twelve-30 day months),
compounded quarterly on each succeeding Payment Date, until paid in full
(such deferred installments of Contract Adjustment Payments, if any,
together with the additional Contract Adjustment Payments accrued thereon,
being referred to herein as the "Deferred Contract Adjustment Payments").
Deferred Contract Adjustment Payments, if any, shall be due on the next
succeeding Payment Date except to the extent that payment is deferred
pursuant to this Section. No Contract Adjustment Payments may be deferred
to a date that is on or after the Purchase Contract Settlement Date and no
such deferral period may end other than on a Payment Date. If the Purchase
Contracts are terminated upon the occurrence of a Termination Event, the
Holder's right to receive Contract Adjustment Payments, if any, and
Deferred Contract Adjustment Payments will terminate.
(b) In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until a Payment Date
prior to the Purchase Contract Settlement Date, then all Deferred Contract
Adjustment Payments, if any, shall be payable to the registered Holders as
of the close of business on the Record Date immediately preceding such
Payment Date.
(c) In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until the Purchase
Contract Settlement Date, each Holder will receive on the Purchase Contract
Settlement Date in lieu of a cash payment a number of shares of Common
Stock (in addition to a number of shares of Common Stock equal to the
Settlement Rate) equal to (x) the aggregate amount of Deferred Contract
Adjustment Payments payable to such Holder divided by (y) the Applicable
Market Value.
(d) No fractional shares of Common Stock will be issued by the
Company with respect to the payment of Deferred Contract Adjustment
Payments on the Purchase Contract Settlement Date. In lieu of fractional
shares otherwise issuable with respect to such payment of Deferred Contract
Adjustment Payments, the Holder will be entitled to receive an amount in
cash equal to the fraction of a share times the Applicable Market Value as
provided in Section 5.11 hereof.
(e) In the event the Company exercises its option to defer the
payment of Contract Adjustment Payments, then, until the Deferred Contract
Adjustment Payments have been paid, the Company shall not, and shall not
permit its Subsidiaries to, declare or pay dividends on, make distributions
with respect to, or redeem, purchase or acquire, or make a liquidation
payment with respect to, any of the Company's capital stock other than:
(i) purchases, redemptions or acquisitions of shares of capital
stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of
employees, officers or directors or a stock purchase or dividend
reinvestment plan, or the satisfaction by the Company of its
obligations pursuant to any contract or security outstanding on the
date the Company exercises its right to defer the Contract Adjustment
Payments;
(ii) as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of the
Company's capital stock for another class or series of the Company's
capital stock;
(iii) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged;
(iv) dividends or distributions in capital stock of the Company
(or rights to acquire capital stock) or repurchases, acquisitions or
redemptions of capital stock in exchange for or out of the net cash
proceeds of the sale of the Company's capital stock (or securities
convertible into or exchangeable for shares of the Company's capital
stock);
(v) redemptions, exchanges or repurchases of any rights
outstanding under a shareholder rights plan or the declaration or
payment thereunder of a dividend or distribution of or with respect to
rights in the future; or
(vi) mandatory sinking fund payments with respect to any series
of preferred stock of the Company; provided that the aggregate stated
value of all such series outstanding at the time of such payment does
not exceed 5% of the aggregate value of (1) the total principal amount
of all then outstanding bonds or other securities representing secured
indebtedness issued or assumed by the Company and (2) the Company's
capital and surplus to be stated on the Company's books of account
after giving effect to such payment; provided however that any moneys
deposited in to any sinking fund and not in violation of this clause
(vi) may thereafter be applied to the purchase or redemption of such
preferred stock in accordance with the terms of such sinking fund
without regard to the foregoing restrictions.
Section 5.4 Initial Remarketing.
(a) 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 (the "Initial
Remarketing") on the third Business Day immediately preceding November 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 that are part of Income PRIDES, or aggregate principal amount of
Separate Notes that are to be remarketed pursuant to clause (b) below, as
the case may be. Concurrently, the Collateral Agent, pursuant to the terms
of the Pledge Agreement, or the Custodial Agent, pursuant to clause (b)
below, 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 or Custodial Agent, the Remarketing Agent will, on the
Initial Remarketing Date, use its reasonable efforts to remarket such Notes
on such date at a price of approximately 100.5% (but not less than 100%) of
the sum of the Treasury Portfolio Purchase Price plus the Separate Notes
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 plus the Separate Notes 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 equal to 25 basis
points (.25%) of the Treasury Portfolio Purchase Price plus the Separate
Notes Purchase Price from any amount of such proceeds in excess of the
Treasury Portfolio Purchase Price plus the Separate Notes Purchase Price.
With respect to Separate Notes, any proceeds of the Initial Remarketing in
excess of the Remarketing or attributable to the Separate Notes will be
remitted to the Custodial Agent for payment to the Holders of separate
Notes. With respect to Notes that are part of Income PRIDES, any proceeds
in excess of those required to pay the Treasury Portfolio Purchase Price
and the Remarketing Fee with respect to such Notes will be remitted to the
Agent for payment to the Holders of the related Income PRIDES. Neither the
Company nor any Income PRIDES Holder 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 Holders of Income PRIDES and will be pledged to the Collateral
Agent to secure the Income PRIDES 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 Income PRIDES and the Collateral Agent
shall have such security interests, rights and obligations with respect to
the Treasury Portfolio as the Holder of Income PRIDES 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 Notes
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 Income PRIDES
Certificates thereafter to be issued such change in phraseology and form
(but not in substance) as may be appropriate to reflect the substitution of
the Treasury Portfolio for Notes as collateral.
If, (i) in spite of using its reasonable efforts, the Remarketing
Agent cannot remarket the related Notes (other than to the Company) at a
price equal to or greater than 100% of the sum of the Treasury Portfolio
Purchase Price plus the Separate Notes Purchase Price, or (ii) the
remarketing has not occurred because of a condition precedent to the
remarketing has not been fulfilled, 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 November 17, 2004 in an Authorized Newspaper. The
Notes will continue to be a component of Income PRIDES, and another
remarketing may be attempted as described in Section 5.5(b).
(b) A Holder of a Note that is no longer part of an Income PRIDES
may elect to have such Note remarketed in the Initial Remarketing. A Holder
making such an election must notify the Custodial Agent and deliver such
Notes to the Custodial Agent prior to 11:00 a.m. (New York City time) on
the second Business Day immediately preceding the Initial Remarketing Date
of the aggregate principal amount of Separate Notes that are to be
remarketed. Any such notice will be irrevocable and may not be conditioned
upon the level at which the Reset Rate is established in the Remarketing.
By 11:00 a.m. (New York City time) on the Business Day immediately
preceding the Initial Remarketing Date, the Custodial Agent shall cause
such Separate Notes to be presented to the Remarketing Agent for
Remarketing.
(c) Not later than seven calendar days nor more than 15 calendar
days prior to the Initial Remarketing Date, the Company shall request that
the Clearing Agency notify the Beneficial Owners or Clearing Agency
participants holding securities of the procedures followed in the Initial
Remarketing.
(d) If required by applicable law, the Company agrees to endeavor
to ensure that a registration statement with regard to the full amount of
the Notes to be remarketed in the Initial remarketing shall be effective
with the Securities and exchange Commission in a form that will enable the
Remarketing Agent to rely on it in connection with the Initial Remarketing.
Section 5.5 Payment of Purchase Price.
(a) (i) Unless a Tax Event Redemption, Successful Initial
Remarketing, Termination Event or Early Settlement has occurred, each
Holder of an Income PRIDES 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 an Income PRIDES 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 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 an Income PRIDES fails to notify the Agent
of its intention to make a Cash Settlement in accordance with
paragraph (a)(i) above, such Holder shall be deemed to have consented
to the disposition of the pledged Notes pursuant to the Secondary
Remarketing as described in paragraph (b) below. If a Holder of an
Income PRIDES 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) (i) Unless a Tax Event Redemption or a Successful Initial
Remarketing has occurred, the Notes of Income PRIDES Holders who have not
notified the Agent of their intention to effect a Cash Settlement as
provided in paragraph (a)(i) above and the Separate Notes that are to be
remarketed pursuant to clause (ii) below 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 that are part
of Income PRIDES to be remarketed or aggregate principal amount of Separate
Notes that are to be remarketed pursuant to clause (ii) below, as the case
may be. Concurrently, the Collateral Agent, pursuant to the terms of the
Pledge Agreement, or the Custodial Agent pursuant to clause (ii) below,
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 or Custodial Agent, the Remarketing Agent will, on the Secondary
Remarketing Date, use its reasonable efforts to remarket such Notes on such
date at a price of approximately 100.5% (but not less than 100%) of the sum
of the aggregate principal amount of such Notes plus the Separate Notes
Purchase Price. 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 plus the Separate Notes Purchase Price (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 equal to 25 basis points (.25%) of the aggregate
principal amount of the remarketed Notes plus the Separate Notes Purchase
Price from any amount of the proceeds of a Successful Secondary Remarketing
in excess of the aggregate principal amount of the remarketed Notes plus
the Separate Notes Purchase Price. The portion of the proceeds equal to the
aggregate principal amount of the remarketed Notes plus the Separate Notes
Purchase Price will automatically be applied by the Collateral Agent, in
accordance with the Pledge Agreement, to satisfy in full such Income PRIDES
holders' obligations to pay the Purchase Price for the Common Stock under
the related Purchase Contracts on the Purchase Contract Settlement Date.
With respect to Separate Notes, any proceeds of the Secondary Remarketing
in excess of the Remarketing or attributable to the Separate Notes will be
remitted to the Custodial Agent for payment to the Holders of Separate
Notes. With respect to Notes that are part of Income PRIDES, 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
Income PRIDES. Neither the Company nor any Income PRIDES Holder whose Notes
are so remarketed will not otherwise be responsible with respect to such
Notes for the payment of any Remarketing Fee in connection therewith. If,
(i) in spite of using its reasonable efforts, the Remarketing Agent cannot
remarket the related Notes (other than to the Company) of such Holders of
Income PRIDES at a price not less than 100% of the aggregate principal
amount of the Notes, or (ii) the remarketing has not occurred because of a
condition precedent to the remarketing has not been fulfilled, 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 an
Authorized Newspaper.
(ii) A Holder of a Note that is no longer part of an Income
PRIDES may elect to have such Note remarketed in the Secondary
Remarketing. A Holder making such an election must notify the
Custodial Agent and deliver such Notes to the Custodial Agent prior to
11:00 a.m. (New York City time) on the second Business Day immediately
preceding the Secondary Remarketing Date of the aggregate principal
amount of Notes that are not part of Income PRIDES to be remarketed.
Any such notice will be irrevocable and may not be conditioned upon
the level at which the Reset Rate is established in the Remarketing.
By 11:00 a.m. (New York City time) on the Business Day immediately
preceding the Secondary Remarketing Date, the Custodial Agent shall
cause such Notes to be presented to the Remarketing Agent for
Remarketing.
(iii) Not later than seven calendar days nor more than 15
calendar days prior to the Secondary Remarketing Date, the Company shall
request that the Clearing Agency notify the Beneficial Owners or Clearing
Agency participants holding securities of the procedures followed in the
Secondary Remarketing.
(iv) If required by applicable law, the Company agrees to
endeavor to ensure that a registration statement with regard to the
full amount of the Notes to be remarketed in the Secondary remarketing
shall be effective with the Securities and exchange Commission in a
form that will enable the Remarketing Agent to rely on it in
connection with the Remarketing.
(b) 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.
(c) Unless a Termination Event or an Early Settlement has
occurred, the Purchase Contract underlying each Growth PRIDES and, if a Tax
Event Redemption or a Successful Initial Remarketing has occurred, each
Income PRIDES 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 Holders.
(d) 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, or, at the option of the Company, by wire transfer to the bank
account designated by such Holders in writing, such payments to be made to
the same Persons entitled to receive Common Stock with respect to the
Purchase Contracts referred to in Subsection (d) above.
(e) Unless a Holder settles the underlying Purchase Contract
through the Early Settlement in the manner described in Section 5.10
hereof, 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 5.5.
(f) 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).
(g) The obligations of the Holders to pay the Purchase Price are
non-recourse obligations and 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 5.6 Issuance of Shares of Common Stock.
Unless a Termination Event or an 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 5.7(b) hereof, 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 Five (after taking into account all Securities then held by such
Holder) together with cash in lieu of fractional shares as provided in
Section 5.11 hereof and any dividends or distributions with respect to such
shares constituting part of the Purchase Contract Settlement Fund, but
without any interest thereon, and the Certificate so surrendered shall
forthwith be cancelled. Such shares shall be registered in the name of the
Holder or the Holder's designee as specified in the settlement instructions
provided by the Holder to the 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 5.7 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 (i) the numerator shall be the
number of shares of Common Stock outstanding at the close of business
on the date fixed for such determination and (ii) the denominator
shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such increase
to become effective immediately after the opening of business on the
day following the date fixed for such determination. For the purposes
of this paragraph (1), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any share
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,
other than pursuant to any dividend reinvestment plan or share
purchase plan, 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 (i) the numerator
shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the number
of shares of Common Stock which the aggregate offering price of the
total number of shares of Common Stock so offered for subscription or
purchase would purchase at such Current Market Price and (ii) the
denominator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination plus
the number of shares of Common Stock so offered for subscription or
purchase, such increase to become effective immediately after the
opening of business on the day following the date fixed for such
determination. For 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 share 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 (i) 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 (ii) 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)
regular quarterly cash distributions, (ii) any cash that is
distributed in a Reorganization Event to which Section 5.7(b) applies
or (iii) 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 (excluding regular quarterly cash distributions) 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 5% 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 (other than regular quarterly cash
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 5% 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 5.7(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 the applicable exchange or in the
applicable 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 5.7(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 5.1 will apply on the Purchase Contract
Settlement Date. Such adjustment shall be made by multiplying the
Applicable Market Value by a fraction of which the numerator shall be
the Settlement Rate immediately after such adjustment pursuant to
paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section
5.7(a) and the denominator shall be the Settlement Rate immediately
before such adjustment; provided, however, that if such adjustment to
the Settlement Rate is required to be made pursuant to the occurrence
of any of the events contemplated by paragraph (1), (2), (3), (4),
(5), (7) or (10) of this Section 5.7(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 capital stock or issuance of rights or warrants to purchase or
subscribe for capital stock or from any event treated as such for
income tax purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization Event.
(1) 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
("non-electing share"), then for the purpose of this Section the kind and
amount of securities, cash and other property receivable upon such
Reorganization Event by each non-electing share shall be deemed to be the
kind and amount so receivable per share by the non-electing shares).
In the event of such a Reorganization Event, the Person formed by
such consolidation, merger or exchange or the Person which acquires 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 5.7. 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.
(2) In the event of a consolidation or merger of the Company with
or into another Person, any merger of another Person into the Company
(other than a merger that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock)
in which 30% or more of the total consideration paid to the Company's
shareholders consists of cash or cash equivalents (a "Cash Merger"), then a
Holder of a Security may settle his Purchase Contract for cash as described
in Section 5.5(a) hereof, as applicable, at the applicable Settlement Rate.
Within five Business Days of the completion of a Cash Merger, the Company
shall provide written notice to Holders of Securities of such completion of
a Cash Merger, which shall specify the deadline for submitting a notice of
Early Settlement pursuant to this Section 5.07(b)(2), the applicable
Purchase Contract Settlement Date, the applicable Settlement Rate and the
amount (per share of Common Stock) of cash, securities and other
consideration receivable by the Holder upon settlement. For the purposes of
this Section 5.07(b)(2), the tenth Business Day after the date the notice
relating to a Cash Merger is provided by the Holders to the Company shall
be deemed to be the Purchase Contract Settlement Date for the purpose of
determining the Applicable Market Value and the deadline for submitting the
notice to settle early and the related cash payment of the Purchase Price
shall be 5:00 p.m. (New York City time) on the ninth Business Day after the
date the notice relating to a Cash Merger is provided to the Holders by the
Company. Growth PRIDES holders may only effect Early Settlement pursuant to
this Section 5.07(b)(2) in integral multiples of 40 Purchase Contracts.
Other than the provisions relating to timing of notice and settlement,
which shall be as set forth above, the provisions of Section 5.01 shall
apply with respect to an Early Settlement following a Cash Merger pursuant
to this Section 5.07(b)(2). Notwithstanding the foregoing, no Early
Settlement will be permitted pursuant to this Section 5.07(b)(2) unless, at
the time such Early Settlement is effected, there is an effective
Registration Statement with respect to the securities to be delivered in
connection with such early settlement, if such a Registration Statement is
required (in the view of counsel, which need not be in the form of a
written opinion, for either the Company or the Purchase Contract Agent)
under the Securities Act. If such a Registration Statement is so required,
the Company covenants and agrees to use its best efforts to (A) have in
effect a Registration Statement covering the securities to be delivered in
respect of the Purchase Contracts being settled and (B) provide a
Prospectus in connection therewith, in each case in a form that the
Purchase Contract Agent may use in connection with such early settlement.
(c) All calculations and determinations pursuant to this Section
5.07 shall be made by the Company or its agent and the Purchase Contract
Agent shall have no responsibility with respect thereto.
Section 5.8 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 5.7 hereof and prepare and transmit to the Agent 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 5.7 hereof (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 5.9 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 Income
PRIDES, or Treasury Securities in the case of Growth PRIDES, in accordance
with the provisions of Section 4.3 of the Pledge Agreement; provided,
however, that, to the extent that a Holder of Income PRIDES or Growth
PRIDES would otherwise be entitled to receive less than $1,000 principal
amount at maturity of the Treasury Portfolio or the Treasury Securities,
the Agent shall dispose of such securities for cash, and transfer the
appropriate amount of such cash to such Holder in accordance with such
Holder's 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 5.10 Early Settlement.
(a) Subject to and upon compliance with the provisions of this
Section 5.10, at the option of the Holder thereof, Purchase Contracts
underlying Securities may effect Early Settlement on or prior to 5:00 p.m.
(New York City time) on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date. Holders of Growth PRIDES may only effect
Early Settlement of the related Purchase Contracts in integral multiples of
40 Growth PRIDES. 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 to the Purchase Contract Agent at the
Corporate Trust Office an "Election to Settle Early" form (on the reverse
side of the Certificate) and any other documents requested by the Purchase
Contract Agent and accompanied by payment (payable to the Company in
immediately available funds) in an amount (the "Early Settlement Amount")
equal to the product of (i) (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement, plus (ii) if such delivery is made with respect to any
Purchase Contracts during the period from the close of business on any
Record Date next preceding any Payment Date to the opening of business on
such Payment Date, an amount equal to the Purchase Contract Payments
payable on such Payment Date with respect to such Purchase Contracts.
Except as provided in the immediately preceding sentence and
subject to Section 5.1 hereof, no payment shall be made upon Early
Settlement of any Purchase Contract on account of any Purchase Contract
Payments accrued on such Purchase Contract or on account of dividends
payable on the Common Stock issued upon such Early Settlement, the record
date for which payment occurs prior to the Early Settlement Date. If the
foregoing requirements are first satisfied with respect to Purchase
Contracts underlying any Securities prior to or at 5:00 p.m. (New York City
time) on a Business Day, such day shall be the "Early Settlement Date" with
respect to such Securities and if such requirements are first satisfied
after 5:00 p.m. (New York City time) on a Business Day or on a day that is
not a Business Day, the "Early Settlement Date" with respect to such
Securities shall be the next succeeding Business Day (so long as such next
succeeding Business Day is not later than the fifth Business Day
immediately preceding the Purchase Contract Settlement Date).
(b) No Early Settlement will be permitted under this Section 5.10
unless, at the time of delivery of the Election to Settle Early form or the
time the Early Settlement is effected, there is an effective Registration
Statement with respect to the shares of Common Stock to be issued and
delivered in connection with such Early Settlement, if such a Registration
Statement is required (in the view of counsel, which need not be in the
form of a written opinion, for either the Company or the Purchase Contract
Agent) under the Securities Act. If such a Registration Statement is so
required, the Company covenants and agrees to use its best efforts to (A)
have in effect a Registration Statement covering the shares of Common Stock
to be delivered in respect of the Purchase Contracts being settled and (B)
provide a Prospectus in connection therewith, in each case in a form that
the Purchase Contract Agent may use in connection with such Early
Settlement.
(c) Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Company shall issue, and the Holder shall be
entitled to receive .5376 shares of Common Stock on account of each
Purchase Contract as to which Early Settlement is effected (the "Early
Settlement Rate"). The Early Settlement Rate shall be adjusted in the same
manner and at the same time as the Settlement Rate is adjusted.
(d) Not 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, together with payment
in lieu of any fraction of a share, as provided in Section 5.11
hereof; and
(ii) the related Notes or the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term)
of the Treasury Portfolio, in the case of Income PRIDES, or the
related Treasury Securities, in the case of Growth PRIDES, to be
released from the Pledge by the Collateral Agent and transferred, in
each case, to the Purchase Contract Agent for delivery to the Holder
thereof or its designee.
(e) Upon Early Settlement of any Purchase Contracts, and subject
to receipt of shares of Common Stock from the Company and the Notes, the
appropriate Applicable Ownership Interest (as specified in clause (A) of
the definition of such term) of the Treasury Portfolio, or Treasury
Securities, as the case may be, from the Securities Intermediary, as
applicable, the Purchase Contract Agent shall, in accordance with the
instructions provided by the Holder thereof on the Election to Settle Early
form (on the reverse of the Certificate evidencing the related Securities):
(i) transfer to the Holder the Notes, the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio or Treasury Securities, as the
case may be, forming a part of such Securities;
(ii) deliver to the Holder a certificate or certificates for the
full number of shares of Common Stock issuable upon such Early
Settlement, together with payment in lieu of any fraction of a share,
as provided in Section 5.11 hereof; and
(iii) if so required under the Securities Act, deliver a
Prospectus for the shares of Common Stock issuable upon such Early
Settlement as contemplated by Section 5.10(c).
(f) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the
Purchase Contract Agent shall authenticate, countersign and deliver to the
Holder thereof, at the expense of the Company, a Certificate evidencing the
Securities as to which Early Settlement was not effected.
(g) A Holder of a Security who effects Early Settlement may elect
to have the Notes no longer a part of an Income PRIDES remarketed. A Holder
making such an election must notify the Indenture Trustee prior to 11:00
a.m. (New York City time) on the fourth Business Day immediately preceding
the Purchase Contract Settlement Date, of the Notes that are not part of
Income PRIDES to be remarketed. Any such notice will be irrevocable and may
not be conditioned upon the level at which the Reset Rate is established in
the Remarketing. Concurrently, the Indenture Trustee shall cause such Notes
to be presented to the Remarketing Agent for Remarketing.
Section 5.11 No Fractional Shares.
No fractional shares or scrip representing fractional shares of
Common Stock shall be issued or delivered upon settlement on the Purchase
Contract Settlement Date or upon Early Settlement of any Purchase
Contracts. If Certificates evidencing more than one Purchase Contract shall
be surrendered for settlement at one time by the same Holder, the number of
full shares of Common Stock which shall be delivered upon settlement shall
be computed on the basis of the aggregate number of Purchase Contracts
evidenced by the Certificates so surrendered. Instead of any fractional
share of Common Stock which would otherwise be deliverable upon settlement
of any Purchase Contracts on the Purchase Contract Settlement Date or upon
Early Settlement, the Company, through the Agent, shall make a cash payment
in respect of such fractional interest in an amount equal to the value of
such fractional shares times the Applicable Market Value. The Company shall
provide the Agent from time to time with sufficient funds to permit the
Agent to make all cash payments required by this Section 5.11 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 and in payment of any Deferred
Contract Adjustment Payments; 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 6.1 Unconditional Right of Holders to Purchase Common Stock.
The Holder of any Income PRIDES or Growth PRIDES shall have the
right, which is absolute and unconditional, (A), subject to the right of
the Company to defer payment thereof pursuant to Section 5.3 hereof, and to
the forfeiture of any Deferred Contract Adjustment Payments upon Early
Settlement pursuant to Section 5.10(c) hereof or upon the occurrence of a
Termination Event, to receive payment of each installment of the Contract
Adjustment Payments, if any, with respect to the Purchase Contract
constituting a part of such Security on the respective Payment Date for
such Security, and (B) to purchase Common Stock pursuant to such Purchase
Contract and, in each such case, to institute suit for the enforcement of
any such payment and right to purchase Common Stock, and such rights shall
not be impaired without the consent of such Holder.
Section 6.2 Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any right
or remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Holder,
then and in every such case, subject to any determination in such
proceeding, the Company and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all rights
and remedies of such Holder shall continue as though no such proceeding had
been instituted.
Section 6.3 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates in the last
paragraph of Section 3.10 hereof, no right or remedy herein conferred upon
or reserved to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 6.4 Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or remedy
upon a default shall impair any such right or remedy or constitute a waiver
of any such right. Every right and remedy given by this Article or by law
to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by such Holders.
Section 6.5 Undertaking for Costs.
All parties to this Agreement agree, and each Holder of Income
PRIDES or Growth PRIDES, by its acceptance of such Income PRIDES or Growth
PRIDES shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Agreement, or in any suit against the Agent for any action taken, suffered
or omitted by it as Agent, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; provided that the provisions of this Section shall not
apply to any suit instituted by the 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 6.6 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Agreement; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Agent or
the Holders, but will suffer and permit the execution of every such power
as though no such law had been enacted.
Article VII
The Agent
Section 7.1 Certain Duties and Responsibilities.
(a) The Agent 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 and Pledge Agreement against
the Agent; and
(1) 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 willful 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.
(4) 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.
(5) The Agent is authorized to execute and deliver the Pledge
Agreement in its capacity as Agent.
Section 7.2 Notice of Default.
Within 30 days after the occurrence of any default by the Company
hereunder of which a Responsible Officer of the Agent has actual knowledge,
the Agent shall transmit by mail to the Company and the Holders of
Securities, as their names and addresses appear in the Register, notice of
such default hereunder, unless such default shall have been cured or
waived.
Section 7.3 Certain Rights of Agent.
Subject to the provisions of Section 7.1 hereof:
(1) the Agent may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by an 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;
(3) 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;
(4) 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;
(5) 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, Note, 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 at the expense of the Company and shall incur
no liability of any kind by reason of such inquiry or investigation;
(6) the Agent may execute any of the powers, perform any duties
hereunder, or delegate any administrative functions either directly
to, by or through its employees, officers, agents or attorneys or an
Affiliate located in any state of the United States 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;
(7) the Agent shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement solely at the
request or direction of any of the Holders pursuant to this Agreement,
unless such Holders shall have offered to the Agent security or
indemnity satisfactory to the Agent against the costs, expenses,
liabilities which might be incurred by it in compliance with such
request or direction;
(8) the Agent shall not be deemed to have notice of any default
unless a Responsible Officer of the Agent has actual knowledge thereof
or unless written notice of any event which is in fact such as default
is received by the Agent at the Corporate Trust Office of the Agent,
and such notice references the Securities and this Agreement.
(9) the rights, privileges, protections, immunities and benefits
given to the Agent, including, without imitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Agent
in each of its capacities hereunder, and to each agent, custodian, and
other Person employed to cat hereunder; and
(10) the Agent may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to
this Agreement, which Officers' Certificate may be signed by any
person authorized to sign an Officer's Certificate, including any
person specified as so authorized in any such Certificate previously
delivered and not superseded.
Section 7.4 Not Responsible for Recitals or Issuance of 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 7.5 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 7.6 Money Held in Custody.
Money held by the Agent in custody hereunder need not be
segregated from the other funds except to the extent required by law or
provided herein. The Agent shall be under no obligation to invest or pay
interest on any money received by it hereunder except as otherwise
expressly provided herein or as otherwise agreed in writing with the
Company.
Section 7.7 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 in writing;
(2) except as otherwise expressly provided herein, to reimburse
the Agent upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Agent in accordance with any
provision of this Agreement (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as shall be determined by a
court of competent jurisdiction to have been caused by its own
negligence, willful misconduct or bad faith; and
(3) to fully indemnify the Agent and any predecessor Agent for,
and to hold it harmless against, any loss, claim, damage, liability or
expense, including taxes (other than taxes based upon, measured by or
determined by the income of the Agent) incurred without negligence,
willful misconduct or bad faith on its part, arising out of or in
connection with the acceptance or administration of its duties
hereunder, including the costs and expenses of counsel selected by the
Agent to defend the Agent 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 and the resignation or removal of the Agent.
Section 7.8 Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be a
corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having (or
being a 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 7.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 7.10 hereof.
(b) The Agent may resign at any time by giving written notice
thereof to the Company 30 days prior to the effective date of such
resignation. If the instrument of acceptance by a successor Agent required
by Section 7.10 hereof shall not have been delivered to the Agent within 30
days after the giving of such notice of resignation, the resigning Agent
may petition at the expense of the Company 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 hereof shall not have been delivered to the Agent
within 30 days after the giving of such notice of resignation, the
resigning Agent may petition at the expense of the Company 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 7.8
hereof 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
hereof. If no successor Agent shall have been so appointed by the Company
and accepted appointment in the manner required by Section 7.10 hereof, 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 or Succession to
Business.
Any corporation into which the Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Agent shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Agent, shall be the successor of the Agent hereunder,
provided 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 or the Notes. Such compliance shall include, without limitation,
(i) preparing, timely filing with the applicable taxing authority, and (to
the extent required under applicable tax laws) timely furnishing Holders
with copies of, all tax reports or statements with respect to payments on,
or redemptions of, the Securities which are required to be prepared, filed,
and furnished under applicable tax laws, (ii) withholding and paying over
to the applicable taxing authorities any tax withholdings that are required
to be made with respect to payments on, or redemptions of, the Securities
under applicable tax laws, and (iii) making reasonable efforts to obtain
from Holders all IRS Forms (and similar forms under applicable state,
local, and foreign tax law) and other documentation required under
applicable tax laws in order to establish exemptions from or reductions in
withholding taxes.
(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 conclusively rely on any such direction
in accordance with the provisions of Section 7.1(a)(2) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, until such time as all applicable
periods of limitation for assessing or collecting any taxes or penalties
for failure to comply fully with such requirements have expired, and shall
make such records available, on written request, to the Company or its
authorized representative within a reasonable period of time after receipt
of such request.
Article VIII
Supplemental Agreements
Section 8.1 Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Agent, at
any time and from time to time, may enter into one or more agreements
supplemental hereto, in form satisfactory to the Company and the Agent, for
any of the following purposes:
(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 5.7(b) hereof; 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 8.2 Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority of the
Outstanding Purchase Contracts voting together as one class, by Act of said
Holders delivered to the Company and the 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 or otherwise adversely affect
the Holder's rights in or to such Collateral or adversely alter the
rights in or to such Collateral;
(3) reduce any Contract Adjustment Payments, if any, or any
Deferred Contract Adjustment Payment, or change any place where, or
the coin or currency in which, any Contract Adjustment Payment is
payable;
(4) impair the right to institute suit for the enforcement of
any Purchase Contract, any Contract Adjustment Payment, if any, or any
Deferred Contract Adjustment Payment, if any;
(5) reduce the number of shares of Common Stock (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 any Early 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 Income PRIDES or the Growth PRIDES, then only the
affected class of Holders as of the record date for the Holders entitled to
vote thereon will be entitled to vote on such amendment or proposal, and
such amendment or proposal shall not be effective except with the consent
of Holders of not less than a majority of such affected class, as
applicable.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
agreement, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 8.3 Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications
thereby of the agencies created by this Agreement, the Agent shall be
entitled to receive and (subject to Section 7.1 hereof) 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 8.4 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 8.5 Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to
this Article may, and shall if required by the Company or the Agent, bear a
notation in form approved by the Company and 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 9.1 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 (including any supplemental 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 (including any
supplemental indenture), the Remarketing Agreement, the Purchase Contracts
or the Pledge Agreement.
Section 9.2 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 9.1 hereof, 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
Gabelli Asset Management 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 9.3 Opinion of Counsel Given to Agent.
The Agent, subject to Sections 7.1 hereof and 7.3 hereof, 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 10.1 Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders
from time to time of the Securities that it will duly and punctually
perform its obligations under the Purchase Contracts in accordance with the
terms of the Purchase Contracts and this Agreement.
Section 10.2 Maintenance of Office or Agency.
The Company will maintain or cause to be maintained in the Borough
of Manhattan, The City of New York an office or agency (a "New York
Office") where 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 re-establishment
of an Income PRIDES 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 at 0 Xxxx
Xxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000xx the registrar, paying agent and
transfer agent for the Income PRIDES and the Growth PRIDES and for the
other purposes contemplated by this Section 10.2.
Section 10.3 Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase Contract
Settlement Date reserve and keep available, free from preemptive rights,
out of its authorized but unissued Common Stock the full number of shares
of Common Stock issuable against tender of payment in respect of all
Purchase Contracts constituting a part of the Securities evidenced by
Outstanding Certificates.
Section 10.4 Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be
issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon issuance, be
duly authorized, validly issued, fully paid and nonassessable. 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.
Section 10.5 Tax Treatment.
The Company covenants and agrees to treat each Holder as the
owner, for United States federal income tax purposes, of the applicable
interest in the Collateral Account, including Notes and Applicable
Ownership Interest of the Treasury Portfolio or the Treasury Securities.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
GABELLI ASSET MANAGEMENT INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
Vice President and Chief
Financial Officer
By: /s/ Xxxxx X. XxXxx
------------------------------------
Xxxxx X. XxXxx
Vice President, General
Counsel and Secretary
THE BANK OF NEW YORK
as Purchase Contract Agent
By: /s/ Xxxxxxx Xxxx
----------------------------------
Xxxxxxx Xxxx
Assistant Vice President
EXHIBIT A
(Form of Face of Income PRIDES 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. 00000X000
Number of Income PRIDES _______
________________
* To be inserted in Global Certificates only.
6.95% Income PRIDES
This Income PRIDES Certificate certifies that ___________ is the
registered Holder of the number of Income PRIDES set forth above. Each
Income PRIDES represents (i) either (a) beneficial ownership by the Holder
of $25 principal amount of senior notes due 2007 (the "Notes") of Gabelli
Asset Management Inc., a New York corporation, subject to the Pledge of
such Note by such Holder pursuant to the Pledge Agreement or (b) upon the
occurrence of a Tax Event Redemption prior to the Purchase Contract
Settlement Date or 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 Gabelli Asset
Management Inc., a New York 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 Income PRIDES evidenced hereby have been
pledged to the Collateral Agent, for the benefit of the Company, to secure
the obligations of the Holder under the Purchase Contract comprising a
portion of such Income PRIDES.
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 Income PRIDES received by the Collateral Agent shall be paid by the
Collateral Agent by wire transfer in same day funds (i) in the case of (A)
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 Income PRIDES 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 Income PRIDES. 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 an Income PRIDES evidenced
hereby which are payable quarterly in arrears on February 17, May 17,
August 17, and November 17, each year, commencing on May17, 2002 (each a
"Payment Date"), shall, subject to receipt thereof from the Collateral
Agent, be paid to the Person in whose name this Income PRIDES Certificate
(or a Predecessor Income PRIDES Certificate) is registered at the close of
business on the Record Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of
this Income PRIDES Certificate to purchase, and the Company to sell, on
February 17, 2005 (the "Purchase Contract Settlement Date"), at a price
equal to $25 (the "Stated Amount"), a fraction of a newly issued share of
class A common stock, $.001 par value ("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 with respect to the Income PRIDES 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 (1) cash received
from a Holder or (2) 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 Income PRIDES 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 Income PRIDES
Register or by wire transfer to the account designated by a prior written
notice from such Person.
The Company shall pay on each Payment Date in respect of each
Purchase Contract forming part of an Income PRIDES evidenced hereby an
amount (the "Contract Adjustment Payments") equal to .95% per year of the
Stated Amount, computed on the basis of a 360-day year of twelve 30-day
months, subject to deferral at the option of the Company as provided in the
Purchase Contract Agreement and more fully described on the reverse hereof.
Such Contract Adjustment Payments, if any, shall be payable to the Person
in whose name this Income PRIDES Certificate (or a Predecessor Income
PRIDES Certificate) is registered at the close of business on the Record
Date for such Payment Date.
Contract Adjustment Payments, if any, 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 Income PRIDES 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 Income PRIDES 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.
GABELLI ASSET MANAGEMENT INC.
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts evidenced hereby)
By: The Bank of New York
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 Income PRIDES Certificates referred to
in the within mentioned Purchase Contract Agreement.
By: The Bank of New York,
as Purchase Contract Agent
By: __________________________________
Authorized Signatory
Dated:
(Form of Reverse of Income PRIDES Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of February 6, 2002 (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 Income PRIDES Certificates are,
and are to be, executed and delivered. In the case of any inconsistency
between this Certificate and the terms of the Purchase Contract Agreement,
the terms of the Purchase Contract Agreement shall prevail.
Each Purchase Contract evidenced hereby obligates the Holder of
this Income PRIDES Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Purchase Price, a
fraction of a newly issued share 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 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 $46.50 (the "Threshold
Appreciation Price"), .5376 shares of Common Stock per Purchase Contract,
(b) if the Applicable Market Value is less than the Threshold Appreciation
Price but is greater than $39.40, (the "Reference Price"), 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 the Reference Price, .6345 shares of Common
Stock per Purchase Contract, in each case subject to adjustment as provided
in the Purchase Contract Agreement. No fractional shares of Common Stock
will be issued upon settlement of Purchase Contracts, as provided in the
Purchase Contract Agreement.
Each Purchase Contract evidenced hereby which is settled either
through Early Settlement or Cash Settlement shall obligate the Holder of
the related Income PRIDES 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 pursuant to Section
5.11 of the Purchase Contract Agreement, 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 sale price is reported, the last reported sale price) of the
Common Stock on The New York Stock Exchange (the "NYSE") on any such date;
or, if the Common Stock is not listed for trading on the NYSE on any such
date, the closing sale price as reported in the composite transactions for
the principal United States national or regional 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, the
last closing sale price of the Common Stock 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 Closing Price means the market value
of the Common Stock on the date 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.
In accordance with the terms of the Purchase Contract Agreement,
the Holder of this Income PRIDES Certificate shall pay the Purchase Price
for the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby by effecting a Cash Settlement or an Early Settlement or
from the Proceeds of a remarketing of the related pledged Notes of such
Holders or of the appropriate Applicable Ownership Interest of the Treasury
Portfolio. Unless a Tax Event Redemption or a Successful Initial
Remarketing has occurred, a Holder of Income PRIDES who does not elect to
make an effective (1) Cash Settlement on or prior to 5:00 p.m., New York
City time, on the fifth Business Day immediately preceding the Purchase
Contract Settlement Date, or (2) Early Settlement on or prior to 5:00 p.m.
New York City time, on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date, 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 Remarketing Agreement and any supplemental
remarketing agreement executed in connection therewith between the parties
thereto, 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 Income PRIDES who does not elect to
make an effective Early Settlement on or prior to 5:00 p.m. New York City
time, on the second Business Day immediately preceding the Purchase
Contract Settlement Date 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.
If, as provided in the Purchase Contract Agreement, (i) upon the
occurrence of a Failed Secondary Remarketing or (ii) if a Holder notifies
the Agent of its intention to effect a Cash Settlement but fails to deliver
the purchase price in cash on or prior to the Business Day immediately
preceding the Purchase Contract Settlement Date, the Collateral Agent, for
the benefit of the Company, exercises its rights as a secured creditor with
respect to the Pledged Notes related to this Income PRIDES Certificate, any
accrued and unpaid interest on such Pledged Notes will become payable by
the Company to the Holder of the Income PRIDES Certificate in the manner
provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment 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 Income PRIDES holders a notice (a)
containing such information as is contained in the notice or solicitation,
(b) stating that each Income PRIDES holder on the record date set by the
Agent therefor (which, to the extent possible, shall be the same date as
the record date for determining the holders of 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 Income
PRIDES and (c) stating the manner in which such instructions may be given.
Upon the written request of the Income PRIDES Holders on such record date,
the Agent shall endeavor insofar as practicable to vote or cause to be
voted, in accordance with the instructions set forth in such requests, the
maximum number of Notes as to which any particular voting instructions are
received. In the absence of specific instructions from the Holder of an
Income PRIDES, the Agent shall abstain from voting the Notes evidenced by
such Income PRIDES.
Upon the occurrence of a Tax Event Redemption 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 Income PRIDES, an amount equal
to the aggregate Redemption Amount for the Notes that are components of
Income PRIDES to purchase on behalf of the Holders of Income PRIDES, 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 Income PRIDES.
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 Income PRIDES, 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 Income PRIDES.
Following the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date or following a Successful Initial
Remarketing, the Holders of Income PRIDES and the Collateral Agent shall
have such security interests, rights and obligations with respect to the
Treasury Portfolio as the Holder of Income PRIDES and the Collateral Agent
had in respect of the Notes, as the case may be, subject to the Pledge
thereof as provided in Articles 2, 3, 4, 5 and 6 of the Pledge Agreement
and any reference herein to the Notes 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 Income PRIDES Certificates are issuable only in registered
form and only in denominations of a single Income PRIDES and any integral
multiple thereof. The transfer of any Income PRIDES Certificate will be
registered and Income PRIDES Certificates may be exchanged as provided in
the Purchase Contract Agreement. The Income PRIDES 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 or the
appropriate Applicable Ownership Interest of the Treasury Portfolio,
thereby creating Growth PRIDES, 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 an Income PRIDES remains in effect, such Income PRIDES shall not
be separable into its constituent parts, and the rights and obligations of
the Holder of such Income PRIDES in respect of Notes or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be, and the Purchase Contract constituting such Income PRIDES may be
transferred and exchanged only as an Income PRIDES. A Holder of an Income
PRIDES may create a Growth PRIDES by delivering to the Collateral Agent
Treasury Securities in an aggregate principal amount equal to the aggregate
principal amount 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, as the case may be, in exchange for the
release of such pledged Notes or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, 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 "Growth PRIDES". A Holder may make such
Collateral Substitution only in integral multiples of 40 Income PRIDES for
the same multiple of 40 Growth PRIDES; provided, however, that if a Tax
Event Redemption or a Successful Initial Remarketing has occurred and the
Treasury Portfolio has become a component of the Income PRIDES, a Holder
may make such Collateral Substitutions only in integral multiples of 8,000
Income PRIDES for the same multiple of 8,000 Growth PRIDES.
A Holder of Growth PRIDES may recreate Income PRIDES by delivering
to the Collateral Agent Notes or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, with an aggregate principal amount, in
the case of such Notes, or with the appropriate Applicable Ownership
Interest (as specified in clause (A) of the definition of such term) of the
Treasury Portfolio, in the case of such appropriate Applicable Ownership
Interest of the Treasury Portfolio, equal to the aggregate principal amount
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 an
Income PRIDES may be effected only in multiples of 40 Growth PRIDES for the
same multiple of 40 Income PRIDES; provided, however, that if a Tax Event
Redemption or a Successful Initial Remarketing has occurred and the
Treasury Portfolio has become a component of the Income PRIDES, a Holder
may make such substitution only in integral multiples of 8,000 Growth
PRIDES for the same multiple of 8,000 Income PRIDES.
Subject to the next succeeding paragraph, the Company shall pay,
on each Payment Date, the Contract Adjustment Payments, if any, payable in
respect of each Purchase Contract to the Person in whose name the Income
PRIDES Certificate evidencing such Purchase Contract is registered at the
close of business on the Record Date for such Payment Date. Contract
Adjustment Payments, if any, will be payable at the Corporate Trust Office
of the Agent and the New York Office or, at the option of the Company, by
check mailed to the address of the Person entitled thereto at such address
as it appears on the Income PRIDES Register or by wire transfer to the
account designated by such Person in writing.
The Company shall have the right, at any time prior to the
Purchase Contract Settlement Date, to defer the payment of any or all of
the Contract Adjustment Payments, if any, otherwise payable on any Payment
Date, but only if the Company shall give the Holders and the Agent written
notice of its election to defer such payment (specifying the amount to be
deferred) as provided in the Purchase Contract Agreement. Any Contract
Adjustment Payments, if any, so deferred shall, to the extent permitted by
law, bear additional Contract Adjustment Payments thereon at the rate of
6.95% per year (computed on the basis of a 360-day year of twelve 30-day
months), compounded quarterly on each succeeding Payment Date, until paid
in full (such deferred installments of Contract Adjustment Payments, if
any, together with the additional Contract Adjustment Payments accrued
thereon, are referred to herein as the "Deferred Contract Adjustment
Payments"). Deferred Contract Adjustment Payments, if any, shall be due on
the next succeeding Payment Date except to the extent that payment is
deferred pursuant to the Purchase Contract Agreement. No Contract
Adjustment Payments, if any, may be deferred to a date that is on or after
the Purchase Contract Settlement Date and no such deferral period may end
other than on a Payment Date.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments, if any, on the Purchase Contracts until a
Payment Date prior to the Purchase Contract Settlement Date, then all
Deferred Contract Adjustment Payments, if any, shall be payable to the
registered Holders as of the close of business on the Record Date
immediately preceding such Payment Date.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments, if any, on the Purchase Contracts until the
Purchase Contract Settlement Date, the Holder of this Income PRIDES
Certificate will receive on the Purchase Contract Settlement Date, in lieu
of a cash payment, a number of shares of Common Stock (in addition to the
number of shares of Common Stock equal to the Settlement Rate) equal to (x)
the aggregate amount of Deferred Contract Adjustment Payments payable to
the Holder of this Income PRIDES Certificate divided by (y) the Applicable
Market Value.
In the event the Company exercises its option to defer the payment
of Contract Adjustment Payments, if any, then, until the Deferred Contract
Adjustment Payments have been paid, the Company shall not declare or pay
dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock other than: (i) purchases, redemptions or acquisitions of shares of
capital stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of
employees, officers or directors or a stock purchase or dividend
reinvestment plan, or the satisfaction by the Company of its obligations
pursuant to any contract or security outstanding on the date of such event;
(ii) as a result of a reclassification of the Company's capital stock or
the exchange or conversion of one class or series of the Company's capital
stock for another class or series of the Company's capital stock; (iii) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged; (iv) dividends or distributions
in capital stock of the Company (or rights to acquire capital stock) or
repurchases, acquisitions or redemptions of capital stock in connection
with the issuance or exchange of capital stock (or securities convertible
into or exchangeable for shares of our capital stock); (v) redemptions,
exchanges or repurchases of any rights outstanding under a shareholder
rights plan or the declaration or payment thereunder of a dividend or
distribution of or with respect to rights in the future; or (vi) mandatory
sinking fund payments with respect to any series of preferred stock of the
Company; provided that the aggregate stated value of all such series
outstanding at the time of such payment does not exceed 5% of the aggregate
of (1) the total principal amount of all then outstanding bonds or other
securities representing secured indebtedness issued or assumed by the
Company and (2) the Company's capital and surplus to be stated on the
Company's books of account after giving effect to such payment; provided
however that any moneys deposited into any sinking fund and not in
violation of this clause (vi) may thereafter be applied to the purchase or
redemption of such preferred stock in accordance with the terms of such
sinking fund without regard to the foregoing restrictions.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the
rights of the Holders to receive and the obligation of the Company to pay
Contract Adjustment Payments, if any, or any Deferred Contract Adjustment
Payments, and the rights and obligations of Holders to purchase Common
Stock, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Agent or the Company, if, 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 Income PRIDES 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, at the option of the Holder thereof, Purchase Contracts
underlying Securities may be settled early ("Early Settlement") as provided
in the Purchase Contract Agreement. In order to exercise the right to
effect Early Settlement with respect to any Purchase Contracts evidenced by
this Income PRIDES Certificate, the Holder of this Income PRIDES
Certificate shall deliver to the Agent at the Corporate Trust Office an
Election to Settle Early form set forth below and any other documents
requested by the Agent duly completed and accompanied by payment in the
form of immediately available funds payable to the order of the Company in
an amount (the "Early Settlement Amount") equal to (i) the product of (A)
$25 times (B) the number of Purchase Contracts with respect to which the
Holder has elected to effect Early Settlement, plus (ii) if such delivery
is made with respect to any Purchase Contracts during the period from the
close of business on any Record Date for any Payment Date to the opening of
business on such Payment Date, an amount equal to the Purchase Contract
Payments payable on such Payment Date with respect to such Purchase
Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the 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, 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 an Income PRIDES as to which
Early Settlement is effected equal to .5376 share of Common Stock per
Purchase Contract (the "Early Settlement Rate"). The Early Settlement Rate
shall be adjusted in the same manner and at the same time as the Settlement
Rate is adjusted as provided in the Purchase Contract Agreement.
Upon registration of transfer of this Income PRIDES Certificate in
accordance with the Purchase Contract Agreement, 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 Income PRIDES Certificate. The Company covenants and
agrees, and the Holder, by its acceptance hereof, likewise covenants and
agrees, to be bound by the provisions of this paragraph.
The Holder of this Income PRIDES Certificate, by its acceptance
hereof, authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Income PRIDES evidenced hereby on his behalf
as his attorney-in-fact, expressly withholds any consent to the assumption
(i.e., affirmance) of the Purchase Contracts by the Company or its trustee
in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform 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 Income PRIDES Certificate pursuant to the
Pledge Agreement and to all other provisions of 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 then outstanding.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Company, the Agent and its Affiliates and any agent of the
Company or the Agent may treat the Person in whose name this Income PRIDES
Certificate is registered as the owner of the Income PRIDES evidenced
hereby for the purpose of receiving payments of interest payable quarterly
on the Notes or on the maturing quarterly interest strips of the Treasury
Portfolio, as applicable, receiving payments of Contract Adjustment
Payments, if any, and any Deferred Contract Adjustment Payments,
performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the
Agent 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 Income PRIDES Certificates and all rights thereunder,
hereby irrevocably constituting and appointing
______________________________________________________________________________
attorney to transfer said Income PRIDES Certificates on the books of
Gabelli Asset Management Inc. with full power of substitution in the
premises.
Dated: _________________ ____________________________________
Signature
NOTICE: The signature
to this assignment
must correspond with
the name as it appears
upon the face of the
within Income PRIDES
Certificates in every
particular, without
alteration or
enlargement or any
change whatsoever.
Signature Guarantee: _________________________________________________________
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 Income
PRIDES evidenced by this Income PRIDES Certificate be registered in the
name of, and delivered, together with a check in payment for any fractional
share, to the undersigned at the address indicated below unless a different
name and address have been indicated below. If shares are to be registered
in the name of a Person other than the undersigned, the undersigned will
pay any transfer tax payable incident thereto.
Dated: _________________ ____________________________________
Signature
Signature Guarantee: ___________
(if assigned to another person)
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 Income PRIDES 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 Income PRIDES evidenced by this
Income PRIDES Certificate specified below. The option to effect Early
Settlement may be exercised only with respect to Purchase Contracts
underlying Income PRIDES with an aggregate Stated Amount equal to $1,000 or
an integral multiple thereof; provided, however, that if a Tax Event
Redemption or a Successful Initial Remarketing has occurred and the
Treasury Portfolio has become a component of the Income PRIDES, Holders may
early settle Income PRIDES only in integral multiples of 40 Income PRIDES.
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon such Early Settlement be registered in the name of,
and delivered, together with a check in payment for any fractional share
and any Income PRIDES Certificate representing any Income PRIDES evidenced
hereby as to which Early Settlement of the related Purchase Contracts is
not effected, to the undersigned at the address indicated below unless a
different name and address have been indicated below. Pledged Notes or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, deliverable upon such Early Settlement will be transferred in
accordance with the transfer instructions set forth below. If shares are to
be registered in the name of a Person other than the undersigned, the
undersigned will pay any transfer tax payable incident thereto.
Dated: _________________ ____________________________________
Signature
Signature Guarantee: ___________
(if assigned to another person)
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 Income PRIDES Certificates
are to be registered in the name of and delivered to and
pledged Notes, or an Applicable Ownership Interest in the
Treasury Portfolio, as the case may be, 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, or the Applicable Ownership
Interest in the Treasury Portfolio, as the case may be, 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:
Signature of authorized
Amount of Amount of Stated Amount of this signatory of Purchase
decrease in Stated increase in Stated Global Certificate Contract Agent or
Amount of the Global Amount of the Global following such decrease Securities Custodian
Date Certificate Certificate or increase Agent
______________________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________________
______________________________________________________________________________________________________________________________
EXHIBIT B
(Form of Face of Growth PRIDES 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. 00000X000
Number of Growth PRIDES _______
-----------
* To be inserted in Global Certificates only.
6.95% Growth PRIDES
This Growth PRIDES Certificate certifies that __________ is the
registered Holder of the number of Growth PRIDES set forth above. Each
Growth PRIDES 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 Gabelli Asset
Management Inc., a New York 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 Growth PRIDES evidenced hereby have been pledged
to the Collateral Agent, for the benefit of the Company, to secure the
obligations of the Holder under the Purchase Contract comprising a portion
of such Growth PRIDES.
The Pledge Agreement provides that all payments of the principal
of any Treasury Securities received by the Collateral Agent shall be paid
by the Collateral Agent by wire transfer in same day funds (i) in the case
of any principal payments with respect to any Treasury Securities that have
been released from the Pledge pursuant to the Pledge Agreement, to the
Holders of the applicable Growth PRIDES to the accounts designated by them
in writing for such purpose no later than 2:00 p.m., New York City time, on
the Business Day such payment is received by the Collateral Agent (provided
that in the event such payment is received by the Collateral Agent on a day
that is not a Business Day or after 12:30 p.m., New York City time, on a
Business Day, then such payment shall be made no later than 10:30 a.m., New
York City time, on the next succeeding Business Day), and (ii) in the case
of the principal of any pledged Treasury Securities, 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 Growth PRIDES of which such pledged
Treasury Securities are a part under the Purchase Contracts forming a part
of such Growth PRIDES.
Each Purchase Contract evidenced hereby obligates the Holder of
this Growth PRIDES Certificate to purchase, and the Company to sell, on
February 17, 2005 (the "Purchase Contract Settlement Date"), at a price
equal to $25 (the "Stated Amount"), a number of newly issued shares of
class A common stock, par value $.001 ("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 with respect to the Growth PRIDES 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.
The Company shall pay on each Payment Date in respect of each
Purchase Contract forming part of a Growth PRIDES evidenced hereby an
amount (the "Contract Adjustment Payments") equal to .95% per year of the
Stated Amount, computed on the basis of a 360-day year of twelve 30 day
months, subject to deferral at the option of the Company as provided in the
Purchase Contract Agreement and more fully described on the reverse hereof.
Such Contract Adjustment Payments, if any, shall be payable to the Person
in whose name this Growth PRIDES Certificate (or a Predecessor Growth
PRIDES Certificate) is registered at the close of business on the Record
Date for such Payment Date.
Contract Adjustment Payments, if any, 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 Growth PRIDES Register or
by wire transfer to the account designated by such Person by prior written
notice.
Reference is hereby made to the further provisions set forth on
the reverse hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Agent by manual signature, this Growth PRIDES Certificate
shall not be entitled to any benefit under the Pledge Agreement or the
Purchase Contract Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
GABELLI ASSET MANAGEMENT INC.
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts)
By: The Bank of New York
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 Growth PRIDES referred to in the
within-mentioned Purchase Contract Agreement.
By: The Bank of New York
as Purchase Contract Agent
By: ___________________________________
Authorized Signatory
(Form of Reverse of
Growth PRIDES Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of February 6, 2002 (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 Growth PRIDES Certificates are,
and are to be, executed and delivered. In the case of any inconsistency
between this Certificate and the terms of the Purchase Contract Agreement,
the terms of the Purchase Contract Agreement shall prevail.
Each Purchase Contract evidenced hereby obligates the Holder of
this Growth PRIDES Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at the Purchase Price, a fraction of a
newly issued share 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 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 $46.50 (the "Threshold Appreciation Price"), .5376
shares of Common Stock per Purchase Contract, (b) if the Applicable Market
Value is less than the Threshold Appreciation Price but is greater than
$39.40, (the "Reference Price"), 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 the Reference Price, .6345 shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement. No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, as provided in the Purchase Contract
Agreement.
Each Purchase Contract evidenced hereby which is settled through
Early Settlement shall obligate the Holder of the related Growth PRIDES 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 pursuant to
section 5.11 of the Purchase Contract Agreement, 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 sale price is reported, the last reported
sale price) of the Common Stock on The New York Stock Exchange (the "NYSE")
on such date or, if the Common Stock is not listed for trading on the NYSE
on any such date, as reported in composite transactions for the principal
United States securities exchange on which the Common Stock is so listed,
or if the Common Stock is not so listed on a United States national or
regional securities exchange, the last closing sales price on and as
reported 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 Closing
Price means the market value of the Common Stock on the date 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.
In accordance with the terms of the Purchase Contract Agreement,
the Holder of this Growth PRIDES Certificate shall pay the Purchase Price
for the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby by effecting either an Early Settlement of each such
Purchase Contract or by applying a principal amount of the pledged Treasury
Securities underlying such Holder's Growth PRIDES equal to the Stated
Amount to the purchase of the Common Stock. A Holder of Growth PRIDES who
does not elect, on or prior to 5:00 p.m., New York City time, on the second
Business Day immediately preceding the Purchase Contract Settlement Date,
to make an 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.
If, as provided in the Purchase Contract Agreement, (i) upon the
occurrence of a Failed Secondary remarketing or (ii) if a Holder notifies
the Agent of its intention to effect a Cash Settlement but fails to deliver
the purchase price in cash on or prior to the Business Day immediately
preceding the Purchase Contract Settlement Date, the Collateral Agent, for
the benefit of the Company, exercises its rights as a secured creditor with
respect to the Pledged Notes related to this Growth PRIDES Certificate, any
accrued and unpaid interest on such Pledged Notes will become payable by
the Company to the Holder of the Growth PRIDES Certificate in the manner
provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment in full of the
aggregate Purchase Price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
The Growth PRIDES Certificates are issuable only in registered
form and only in denominations of a single Growth PRIDES and any integral
multiple thereof. The transfer of any Growth PRIDES Certificate will be
registered and Growth PRIDES Certificates may be exchanged as provided in
the Purchase Contract Agreement. The Growth PRIDES 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 or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, for
Treasury Securities, thereby recreating Income PRIDES, 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 Growth PRIDES remains in effect, such Growth PRIDES
shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Growth PRIDES in respect of the Treasury
Security and the Purchase Contract constituting such Growth PRIDES may be
transferred and exchanged only as a Growth PRIDES. A Holder of Growth
PRIDES may recreate Income PRIDES by delivering to the Collateral Agent
Notes or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, with an aggregate principal amount, in the case of such Notes,
or with the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) of the Treasury Portfolio, in
the case of such appropriate Applicable Ownership Interest of the Treasury
Portfolio, equal to the aggregate principal amount 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 or appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, secures the Holder's obligation
under the Purchase Contract shall be referred to as an "Income PRIDES". A
Holder may make such a substitution only in integral multiples of 40 Growth
PRIDES for the same multiple of 40 Income PRIDES; provided, however, that
if a Tax Event Redemption or a Successful Initial Remarketing has occurred
and the Treasury Portfolio has become a component of the Income PRIDES, a
Holder may make such substitution only in integral multiples of 8,000
Growth PRIDES for the same multiple of 8,000 Income PRIDES.
A Holder of an Income PRIDES may create a Growth PRIDES by
delivering to the Collateral Agent Treasury Securities in an aggregate
principal amount 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, as the case may be, in exchange for the
release of such pledged Notes or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, in accordance with
the terms of the Purchase Contract Agreement and the Pledge Agreement. Any
such creation of a Growth PRIDES may be effected only in multiples of 40
Income PRIDES for the same multiple of 40 Growth PRIDES; provided, however,
if a Tax Event Redemption or a Successful Initial Remarketing has occurred
and the Treasury Portfolio has become a component of the Income PRIDES, a
Holder may make such Collateral Substitution only in integral multiples of
8,000 Income PRIDES for the same multiple of 8,000 Growth PRIDES.
Subject to the next succeeding paragraph, the Company shall pay,
on each Payment Date, the Contract Adjustment Payments, if any, payable in
respect of each Purchase Contract to the Person in whose name the Growth
PRIDES Certificate evidencing such Purchase Contract is registered at the
close of business on the Record Date for such Payment Date. Contract
Adjustment Payments, if any, will be payable at the Corporate Trust Office
of the Agent and the New York Office or, at the option of the Company, by
check mailed to the address of the Person entitled thereto at such address
as it appears on the Growth PRIDES Register.
The Company shall have the right, at any time prior to the
Purchase Contract Settlement Date, to defer the payment of any or all of
the Contract Adjustment Payments, if any, otherwise payable on any Payment
Date, but only if the Company shall give the Holders and the Agent written
notice of its election to defer such payment (specifying the amount to be
deferred) as provided in the Purchase Contract Agreement. Any Contract
Adjustment Payments, if any, so deferred shall, to the extent permitted by
law, bear additional Contract Adjustment Payments thereon at the rate of
6.95% per year (computed on the basis of a 360-day year of twelve 30 day
months), compounded quarterly on each succeeding Payment Date, until paid
in full (such deferred installments of Contract Adjustment Payments, if
any, together with the additional Contract Adjustment Payments accrued
thereon, are referred to herein as the "Deferred Contract Adjustment
Payments"). Deferred Contract Adjustment Payments, if any, shall be due on
the next succeeding Payment Date except to the extent that payment is
deferred pursuant to the Purchase Contract Agreement. No Contract
Adjustment Payments, if any, may be deferred to a date that is on or after
the Purchase Contract Settlement Date and no such deferral period may end
other than on a Payment Date.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments, if any, on the Purchase Contracts until a
Payment Date prior to the Purchase Contract Settlement Date, then all
Deferred Contract Adjustment Payments, if any, shall be payable to the
registered Holders as of the close of business on the Record Date
immediately preceding such Payment Date.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments, if any, on the Purchase Contracts until the
Purchase Contract Settlement Date, the Holder of this Growth PRIDES
Certificate will receive on the Purchase Contract Settlement Date, in lieu
of a cash payment, a number of shares of Common Stock (in addition to the
number of shares of Common Stock equal to the Settlement Rate) equal to (x)
the aggregate amount of Deferred Contract Adjustment Payments payable to
the Holder of this Growth PRIDES Certificate divided by (y) the Applicable
Market Value.
In the event the Company exercises its option to defer the payment
of Contract Adjustment Payments, if any, then, until the Deferred Contract
Adjustment Payments have been paid, the Company shall not declare or pay
dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock other than: (i) purchases, redemptions or acquisitions of shares of
capital stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of
employees, officers or directors or a stock purchase or dividend
reinvestment plan, or the satisfaction by the Company of its obligations
pursuant to any contract or security outstanding on the date of such event;
(ii) as a result of a reclassification of the Company's capital stock or
the exchange or conversion of one class or series of the Company's capital
stock for another class or series of the Company's capital stock; (iii) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged; (iv) dividends or distributions
in capital stock of the Company (or rights to acquire capital stock) or
repurchases, acquisitions or redemptions of capital stock in connection
with the issuance or exchange of capital stock (or securities convertible
into or exchangeable for shares of our capital stock); (v) redemptions,
exchanges or repurchases of any rights outstanding under a shareholder
rights plan or the declaration or payment thereunder of a dividend or
distribution of or with respect to rights in the future; or (vi) mandatory
sinking fund payments with respect to any series of preferred stock of the
Company; provided that the aggregate stated value of all such series
outstanding at the time of such payment does not exceed 5% of the aggregate
of (1) the total principal amount of all then outstanding bonds or other
securities representing secured indebtedness issued or assumed by the
Company and (2) the Company's capital and surplus to be stated on the
Company's books of account after giving effect to such payment; provided
however that any moneys deposited into any sinking fund and not in
violation of this clause (vi) may thereafter be applied to the purchase or
redemption of such preferred stock in accordance with the terms of such
sinking fund without regard to the foregoing restrictions.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the
rights of the Holders to receive and the obligation of the Company to pay
Contract Adjustment Payments, if any, or any Deferred Contract Adjustment
Payments, and the rights and obligations of Holders to purchase Common
Stock shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Agent or the Company, if, 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 Growth PRIDES 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 Holder thereof, Purchase Contracts
underlying Securities may be settled early ("Early Settlement") as provided
in the Purchase Contract Agreement. In order to exercise the right to
effect Early Settlement with respect to any Purchase Contracts evidenced by
this Income PRIDES Certificate, the Holder of this Growth PRIDES
Certificate shall deliver to the Agent at the Corporate Trust Office an
Election to Settle Early form set forth below and any other documents
requested by the Agent duly completed and accompanied by payment in the
form of immediately available funds payable to the order of the Company in
an amount (the "Early Settlement Amount") equal to (i) the product of (A)
$25 times (B) the number of Purchase Contracts with respect to which the
Holder has elected to effect Early Settlement, plus (ii) if such delivery
is made with respect to any Purchase Contracts during the period from the
close of business on any Record Date for any Payment Date to the opening of
business on such Payment Date, an amount equal to the Purchase Contract
Payments payable on such Payment Date with respect to such Purchase
Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Pledged Treasury Securities underlying such
Securities shall be released from the Pledge as provided in the Pledge
Agreement and the Holder shall be entitled to receive a number of shares of
Common Stock on account of each Purchase Contract forming part of a Growth
PRIDES as to which Early Settlement is effected equal to .5376 share of
Common Stock per Purchase Contract (the "Early Settlement Rate"). The Early
Settlement Rate shall be adjusted in the same manner and at the same time
as the Settlement Rate is adjusted as provided in the Purchase Contract
Agreement.
Upon registration of transfer of this Growth PRIDES Certificate,
the transferee shall be bound (without the necessity of any other action on
the part of such transferee, except as may be required by the Agent
pursuant to the 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 Growth PRIDES 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 Growth PRIDES Certificate, by its acceptance
hereof, authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Growth PRIDES evidenced hereby on his behalf
as its attorney-in-fact, expressly withholds any consent to the assumption
(i.e., affirmance) of the Purchase Contracts by the Company or its trustee
in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform 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 Growth PRIDES Certificate pursuant to the Pledge
Agreement and to all other provisions of 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 then outstanding.
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.
Prior to due presentment of this Certificate for registration of
transfer, the Company, the Agent and its Affiliates and any agent of the
Company or the Agent may treat the Person in whose name this Growth PRIDES
Certificate is registered as the owner of the Growth PRIDES evidenced
hereby for the purpose of receiving payments on the Treasury Securities,
receiving payments of Contract Adjustment Payments, if any, and any
Deferred Contract Adjustment Payments, performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not any
payments in respect thereof be overdue and notwithstanding any notice to
the contrary, and neither the Company, the Agent 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 Income PRIDES Certificates and all rights thereunder,
hereby irrevocably constituting and appointing
______________________________________________________________________________
attorney to transfer said Income PRIDES Certificates on the books of
Gabelli Asset Management Inc. with full power of substitution in the
premises.
Dated: _________________ _________________________________________
Signature
NOTICE: The signature
to this assignment
must correspond with
the name as it appears
upon the face of the
within Income PRIDES
Certificates in every
particular, without
alteration or
enlargement or any
change whatsoever.
Signature Guarantee:_______________________________________________________
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 Growth
PRIDES evidenced by this Growth PRIDES Certificate be registered in the
name of, and delivered, together with a check in payment for any fractional
share, to the undersigned at the address indicated below unless a different
name and address have been indicated below. If shares are to be registered
in the name of a Person other than the undersigned, the undersigned will
pay any transfer tax payable incident thereto.
Dated: _________________ ________________________________________
Signature
Signature Guarantee: ___________
(if assigned to another person)
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 Growth PRIDES 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 Growth PRIDES evidenced by this
Growth PRIDES Certificate specified below. The option to effect Early
Settlement may be exercised only with respect to Purchase Contracts
underlying Growth PRIDES with an aggregate Stated Amount equal to $1,000 or
an integral multiple thereof. The undersigned Holder directs that a
certificate for shares of Common Stock deliverable upon such Early
Settlement be registered in the name of, and delivered, together with a
check in payment for any fractional share and any Growth PRIDES Certificate
representing any Growth PRIDES 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 Growth PRIDES 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
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:
Signature of authorized
Amount of Amount of Stated Amount of this signatory of Purchase
decrease in Stated increase in Stated Global Certificate Contract Agent or
Amount of the Global Amount of the Global following such decrease Securities Custodian
Date Certificate Certificate or increase Agent
____________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________
EXHIBIT C
INSTRUCTION FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
The Bank of New York,
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Feline PRIDES of Gabelli Asset Management Inc. (the "Company")
We hereby notify you in accordance with Section 4.1 and 4.2 of the
Pledge Agreement, dated as of February 6, 2002, (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 [Income PRIDES] [Growth PRIDES] 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 or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be,] in exchange for an equal Value of [Pledged Notes or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be,] [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 or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be,] to you, as Collateral Agent. We hereby instruct you, upon receipt of
such [Pledged Treasury Securities] [Pledged Notes or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be,], and upon the payment by such Holder of any applicable fees, to
release the [Notes or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be,] [Treasury Securities] related to
such [Income PRIDES] [Growth PRIDES] to us in accordance with the Holder's
instructions. Capitalized terms used herein but not defined shall have the
meaning set forth in the Pledge Agreement.
Date:_____________ _________________________________
By:______________________
Name:
Title:
Signature Guarantee:_____________
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Notes or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be,] for the [Pledged
Notes or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be,] [Pledged Treasury Securities]:
___________________________________ ____________________________________
Name Social Security or other Taxpayer
Identification Number, if any
___________________________________
Address
___________________________________
EXHIBIT D
INSTRUCTION TO PURCHASE CONTRACT AGENT
The Bank of New York,
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Feline PRIDES of Gabelli Asset Management 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 or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be,] in exchange for an equal Value of [Pledged Notes or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may
be,] [Pledged Treasury Securities] held by the Collateral Agent, in
accordance with Section 4.1 and 4.2 of the Pledge Agreement, dated February
6, 2002 (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 or the appropriate Applicable
Ownership Interest of the Treasury Portfolio] [Pledged Treasury Securities]
related to such [Income PRIDES] [Growth PRIDES]. Capitalized terms used
herein but not defined shall have the meaning set forth in the Pledge
Agreement.
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
The Bank of New York,
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Feline PRIDES of Gabelli Asset Management Inc. (the "Company")
The undersigned Holder hereby irrevocably notifies you in
accordance with Section 5.5 of the Purchase Contract Agreement dated as of
February 6, 2002 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 Holders election to make such cash settlement with
respect to the Purchase Contracts related to such Holder's [Income PRIDES]
[Growth PRIDES].
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
___________________________________
