EXHIBIT 4.16
THE AES CORPORATION
AND
___________________________
AS PURCHASE CONTRACT AGENT
PURCHASE CONTRACT AGREEMENT
DATED AS OF ___________, ______
TABLE OF CONTENTS
Page
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ARTICLE 1
Definitions
Section 1.01. Definitions............................................. 1
Section 1.02. Compliance Certificates and Opinions.................... 8
Section 1.03. Form of Documents Delivered to Agent.................... 9
Section 1.04. Acts of Holders; Record Dates........................... 9
Section 1.05. Notices, Etc., to Agent and the Company................. 11
Section 1.06. Notice to Holders; Waiver............................... 11
Section 1.07. Effect of Headings and Table of Contents................ 12
Section 1.08. Successors and Assigns.................................. 12
Section 1.09. Separability Clause..................................... 12
Section 1.10. Benefits of Agreement................................... 12
Section 1.11. Governing Law........................................... 13
Section 1.12. Legal Holidays.......................................... 13
Section 1.13. Counterparts............................................ 13
Section 1.14. Inspection of Agreement................................. 13
ARTICLE 2
Security Certificate Forms
Section 2.01. Forms of Security Certificates Generally................ 13
Section 2.02. Form of Agent's Certificate of Authentication........... 14
ARTICLE 3
The Securities
Section 3.01. Title and Terms; Denominations.......................... 15
Section 3.02. Rights and Obligations Evidenced by the Security
Certificates ........................................... 15
Section 3.03. Execution, Authentication, Delivery and Dating.......... 15
Section 3.04. Temporary Security Certificates......................... 16
Section 3.05. Registration; Registration of Transfer and Exchange..... 17
Section 3.06. Mutilated, Destroyed, Lost and Stolen Security
Certificates............................................ 19
Section 3.07. Persons Deemed Owners................................... 20
Section 3.08. Cancellation............................................ 21
Section 3.09. Securities Not Separable................................ 22
Section 3.10. No Consent to Assumption................................ 22
ARTICLE 4
The Treasury Notes
Section 4.01. Payment of Interest; Interest Rights Preserved.......... 22
Section 4.02. Transfer of Treasury Notes upon Occurrence of
Termination Event..................................... 23
ARTICLE 5
The Purchase Contracts
Section 5.01. Purchase of Shares of Common Stock...................... 24
Section 5.02. Yield Enhancement Payments.............................. 26
Section 5.03. Deferral of Payment Dates for Yield Enhancement Payment. 26
Section 5.04. Payment of Purchase Price............................... 28
Section 5.05. Issuance of Shares of Common Stock...................... 28
Section 5.06. Adjustment of Settlement Rate........................... 29
Section 5.07. Notice of Adjustments and Certain Other Events.......... 35
Section 5.08. Termination Event; Notice............................... 35
Section 5.09. Early Settlement........................................ 36
Section 5.10. No Fractional Shares.................................... 38
Section 5.11. Charges and Taxes....................................... 38
ARTICLE 6
Remedies
Section 6.01. Unconditional Right of Holders to Receive Yield
Enhancement .......................................... 39
Section 6.02. Restoration of Rights and Remedies...................... 39
Section 6.03. Rights and Remedies Cumulative.......................... 39
Section 6.04. Rights and Remedies Cumulative.......................... 39
Section 6.05. Undertaking for Costs................................... 40
Section 6.06. Waiver of Stay or Extension Laws........................ 40
ARTICLE 7
The Agent
Section 7.01. Certain Duties and Responsibilities..................... 41
Section 7.02. Notice of Default....................................... 41
Section 7.03. Certain Rights of Agent................................. 42
Section 7.04. Not Responsible for Recitals or Issuance of Securities.. 43
Section 7.05. May Hold Securities..................................... 43
Section 7.06. Money Held in Custody................................... 43
Section 7.07. Compensation and Reimbursement.......................... 43
Section 7.08. Corporate Agent Required; Eligibility................... 44
Section 7.09. Resignation and Removal; Appointment of Successor....... 44
Section 7.10. Acceptance of Appointment by Successor.................. 46
Section 7.11. Merger, Conversion, Consolidation or Succession to
Business ............................................. 46
Section 7.12. Preservation of Information; Communications to Holders.. 47
Section 7.13. No Obligations of Agent................................. 47
Section 7.14. Tax Compliance.......................................... 47
ARTICLE 8
Supplemental Agreements
Section 8.01. Supplemental Agreements Without Consent of Holders...... 48
Section 8.02. Supplemental Agreements with Consent of Holders......... 49
Section 8.03. Execution of Supplemental Agreements.................... 50
Section 8.04. Effect of Supplemental Agreements....................... 50
Section 8.05. Reference to Supplemental Agreements.................... 50
ARTICLE 9
Consolidation, Merger, Sale or Conveyance
Section 9.01. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions.............. 50
Section 9.02. Rights and Duties of Successor Corporation.............. 51
Section 9.03. Opinion of Counsel to Agent............................. 51
ARTICLE 10
Covenants
Section 10.01. Performance under Purchase Contracts................... 52
Section 10.02. Maintenance of Office or Agency........................ 52
Section 10.03. Company to Reserve Common Stock........................ 53
Section 10.04. Covenants as to Common Stock........................... 53
Section 10.05. Statements of Officers of the Company as Default....... 53
PURCHASE CONTRACT AGREEMENT, dated as of ____________, _____,
between The AES Corporation, a Delaware corporation (the "Company"), and The
First National Bank of Chicago, a national banking association, acting as
purchase contract agent for the Holders of Securities from time to time (the
"Agent").
RECITALS
The Company has duly authorized the execution and delivery of
this Agreement and the Security Certificates evidencing the Securities.
All things necessary to make the Company's obligations under
the Securities, when the Security Certificates are executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Agent,
as in this Agreement provided, the valid obligations of the Company, and to
constitute these presents a valid agreement of the Company, in accordance with
its terms, have been done.
W I T N E S S E T H:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed as follows:
Definitions and Other Provisions of General Application
ARTICLE 1
Definitions
Section 1.01. Definitions.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(1) 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
(2) 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.
"Act" when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"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 the Person who is then the Agent hereunder.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning specified in Section
5.01.
"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.
"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.
"Business Day" means any day that is not a Saturday, Sunday or
a day on which the NYSE or banking institutions or trust companies in The City
of New York are authorized or obligated by law or executive order to be closed.
"Closing Price" has the meaning specified in Section 5.01.
"Collateral Agent" means _______________, 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.
"Common Stock" means the Common Stock, par value $.01 per
share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such pursuant
to the applicable provision of this Agreement, and thereafter "Company" shall
mean such successor.
"Corporate Trust Office" means the principal corporate trust
office of the Agent at which, at any particular time, its corporate trust
business shall be administered; which office at the date hereof is located at
_________________ ____________________. Attention: _____________, except that
for purposes of Section 10.02, such term shall mean the office or agency of
the Agent in the Borough of Manhattan, the City of New York, which office at
the date hereof is located at 00 Xxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
"Current Market Price" has the meaning specified in Section
5.06(a)(8).
"Deferred Yield Enhancement Payments" has the meaning specified
in Section 5.03.
"Depositary" means a clearing agency registered under the
Exchange Act that is designated to act as Depositary for the Securities as
contemplated by Section 3.05.
"Early Settlement" has the meaning specified in Section 5.09(a).
"Early Settlement Amount" has the meaning specified in Section
5.09(a).
"Early Settlement Date" has the meaning specified in Section
5.09(a).
"Early Settlement Rate" has the meaning specified in Section
5.09(b).
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Excess Treasury Notes" has the meaning specified in Section
4.02.
"Expiration Date" has the meaning specified in Section 1.04.
"Expiration Time" has the meaning specified in Section
5.06(a)(6).
"Final Settlement Date" means _______________, ______.
"Final Settlement Fund" has the meaning specified in Section
5.05.
"Global Security Certificate" means a Security Certificate that
evidences all or part of the Securities and is registered in the name of a
Depositary or a nominee thereof.
"Holder," when used with respect to a Security Certificate (or
a Security), means a Person in whose name the Security evidenced by such
Security Certificate (or the Security Certificate evidencing such Security) is
registered in the Security Register, subject to Section 3.07.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Company by its Chairman of the Board, any
Vice Chairman, its President or a Vice President and by its Treasurer, an
Assistant
Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Agent.
"NYSE" has the meaning specified in Section 5.01.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, any Vice Chairman of the Board, the President or any
Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or
an 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 and who
shall be reasonably acceptable to the Agent.
"Outstanding Securities" means, as of the date of
determination, all Securities evidenced by then Outstanding Security
Certificates, except:
(i) If a Termination Event has occurred, Securities for
which the underlying Treasury Notes have been theretofore deposited with the
Agent in trust for the Holders of such Securities; and
(ii) On and after the applicable Early Settlement Date,
Securities as to which the Holder has elected to effect Early Termination of
the related Purchase Contracts;
provided, however, that in determining whether the Holders of the requisite
number of Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities 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 Securities which the Agent knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Agent the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any Affiliate of the Company.
"Outstanding Security Certificates" means, as of the date of
determination, all Security Certificates theretofore authenticated, executed
and delivered under this Agreement, except:
(i) Security Certificates theretofore cancelled by the
Agent or delivered to the Agent for cancellation; and
(ii) Security Certificates in exchange for or in lieu of
which other Security Certificates have been authenticated, executed on behalf
of the Holder and delivered pursuant to this Agreement, other than any such
Security Certificate in respect of which there shall have been presented to
the Agent proof satisfactory to it that such Security Certificate is held by a
bona fide purchaser in whose hands the Securities evidenced by such Security
Certificate are valid obligations of the Company.
"Payment Date" means each __________ and ___________, commencing
_______________, ______.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pledge" means the pledge under the Pledge Agreement of the
Treasury Notes constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, 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.
"Predecessor Security Certificate" of any particular Security
Certificate means every previous Security Certificate evidencing all or a
portion of the rights and obligations of the Holder under the Securities
evidenced thereby; and, for the purposes of this definition, any Security
Certificate authenticated and delivered under Section 3.06 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security Certificate shall
be deemed to evidence the same rights and obligations of the Holder as the
mutilated, destroyed, lost or stolen Security Certificate.
"Purchase Contract," when used with respect to any Security,
means the contract 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.
"Purchased Shares" has the meaning specified in Section
5.06(a)(6).
"Record Date" for the interest and Yield Enhancement Payments
payable on any Payment Date means [, as to any Global Security Certificate,]
the Business Day next preceding such Payment Date, and as to any other
Security Certificate, the 15th day of the month preceding such Payment Date.
"Reorganization Event" has the meaning specified in Section
5.06(b).
"Responsible Officer," when used with respect to the Agent,
means any officer of the Agent assigned by the Agent to administer its
corporate trust matters.
"Security" means the collective rights and obligations of a
Holder of a Security Certificate in respect of Treasury Notes with a principal
amount equal to the Stated Amount, subject to the Pledge thereof, and a
Purchase Contract.
"Security Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Securities
specified on such certificate.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05.
"Settlement Rate" has the meaning specified in Section 5.01.
"Stated Amount" means $__________.
"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 Final Settlement Date, a
judgment, decree or order by a court having jurisdiction in the premises 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 Final
Settlement Date, such decree or order shall have continued undischarged and
unstayed for a period of 60 days; or (ii) a judgment, decree or order of a
court having jurisdiction in the premises 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 6Q days prior to the Final 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 Final 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
United States 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 5.01.
"TIA" means the Trust Indenture Act of 1939, as amended, or any
successor statute.
"Trading Day" has the meaning specified in Section 5.01.
"Treasury Notes" means % United States Treasury Notes due
__________, ______.
"Underwriting Agreement" means the Underwriting Agreement dated
__________, _____ between the Company and ____________________
__________________________________________________________, as representatives
of the several Underwriters named therein.
"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."
"Yield Enhancement Payment" means the fee payable by the
Company in respect of each Purchase Contract, equal to ______% per annum of
the Stated Amount, accruing from _______________, _____, computed on the basis
of the actual number of days elapsed in a year of 365 or 366 days, as the case
may be, plus any Deferred Yield Enhancement Payments accrued pursuant to
Section 5.03, except that on the initial Payment Date the Yield Enhancement
Payment shall be reduced by an amount equal to accrued interest to
_______________, _____, on the Treasury Note constituting a part of a
Security.
Section 1.02. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon
any application or request by the Company to the Agent to take any action
under any provision of this Agreement, the Company shall furnish to the Agent
an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Agreement relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Agent.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be
consolidated and form one instrument.
Section 1.04. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Agent and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Agreement and (subject to
Section 7.01) conclusive in favor of the Agent and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Agent deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security
Certificate evidencing such Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Agent or the Company
in reliance thereon, whether or not notation of such action is made upon
such Security 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 Outstanding Securities on
such record date, and no other Holders, shall be entitled to take the
relevant action, 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 1.06.
With respect to any record date set pursuant to this Section,
the Company may designate any date as the "Expiration Date" and from time to
time may change the Expiration Date to any earlier or later day; provided that
no such change shall be effective unless notice of the proposed new Expiration
Date is given to the Agent in writing, and to each Holder of Securities in the
manner set forth in Section 1.06, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the Company shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Section 1.05. Notices, Etc., to Agent and the Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Agreement to be made upon, given or furnished to, or filed with,
(1) the Agent by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and personally
delivered or mailed, first-class postage prepaid, to the Agent at
____________________________________, Attention: _____________, 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 0000
Xxxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Treasurer, or at
any other address previously furnished in writing to the Agent by the
Company.
Section 1.06. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Agent, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Agent
shall constitute a sufficient notification for every purpose hereunder.
Section 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
Section 1.08. Successors and Assigns.
All covenants and agreements in this Agreement by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.09. Separability Clause.
In case any provision in this Agreement or in the Securities
shall be invalid, illegal or unenforceable, 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 the Holders, any benefits or any legal or equitable
right, remedy or claim under this Agreement. The Holders from time to time
shall be beneficiaries of this Agreement and shall be bound by all of the
terms and conditions hereof and of the Securities evidenced by their Security
Certificates by their acceptance of delivery thereof.
Section 1.11. Governing Law.
This Agreement and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 1.12. Legal Holidays.
In any case where any Payment Date, any Early Settlement Date
or the Final Settlement Date shall not be a Business Day, then
(notwithstanding any other provision of this Agreement or of the Securities)
payment in respect of interest on Treasury Notes or Yield Enhancement Payments
shall not be made, Purchase Contracts shall not be performed and Early
Settlement shall not be effected on such date, but such payments shall be
made, or the Purchase Contracts shall be performed or Early Settlement
effected, as applicable, on the next succeeding Business Day with the same
force and effect as if made on such Payment Date, Early Settlement Date or
Final Settlement Date, as the case may be; provided, that no interest shall
accrue or be payable by the Company or any Holder for the period from and
after any such Payment Date, Early Settlement Date or Final Settlement Date,
as the case may be.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which, when so executed, 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 at the Corporate Trust Office for inspection by any Holder.
ARTICLE 2
Security Certificate Forms
Section 2.01. Forms of Security Certificates Generally.
The Security Certificates (including the form of Purchase
Contracts forming part of the Securities 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 Securities are listed or
Depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Security Certificates, as evidenced by
their execution of the Security Certificates.
The definitive Security Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Security Certificates, consistent with the provisions of this Agreement, as
evidenced by their execution thereof.
Every Global Security Certificate authenticated, executed on
behalf of the Holders and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY CERTIFICATE IS A GLOBAL SECURITY CERTIFICATE
WITHIN THE MEANING OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
SECURITY CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS SECURITY CERTIFICATE IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE PURCHASE CONTRACT AGREEMENT.
Section 2.02. Form of Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the
Securities shall be in substantially the form set forth on the form of the
Security Certificates.
ARTICLE 3
The Securities
Section 3.01. Title and Terms; Denominations.
The aggregate number of Securities evidenced by Security
Certificates authenticated, executed on behalf of the Holders and delivered
hereunder is limited to _______________ (subject to increase up to a maximum
of to the extent the over-allotment option of the underwriters under the
Purchase Agreement is exercised), except for Security Certificates
authenticated, executed and delivered upon registration of transfer of, in
exchange for, or in lieu of, other Security Certificates pursuant to Section
3.04, 3.05, 3.06, 5.09 or 8.05.
The Security Certificates shall be issuable only in registered
form and only in denominations of a single Security and any integral multiple
thereof.
Section 3.02. Rights and Obligations Evidenced by the Security
Certificates.
Each Security Certificate shall evidence the number of
Securities specified therein, with each such Security representing the
ownership by the Holder thereof of Treasury Notes with a principal amount
equal to the Stated Amount, subject to the Pledge of such Treasury Notes by
such Holder pursuant to the Pledge Agreement, and the rights and obligations
of the Holder under one Purchase Contract. Pursuant to the Pledge Agreement,
dated as of the date hereof, the Agent as attorney-in-fact for, and on behalf
of, the Holder shall pledge the Treasury Notes to the Collateral Agent and
grant to the Collateral Agent a security interest in the right, title, and
interest of such Holders in the Treasury Notes, for the benefit of the
Company, to secure the obligation of the Holders under the Purchase Contracts
to purchase the Common Stock of the Company. Prior to the purchase, if any, of
shares of Common Stock under the Purchase Contracts, the Securities shall not
entitle the Holders to any of the rights of a holder of shares of Common
Stock, including, without limitation, the right to vote or receive any
dividends or other payments or to consent or to receive notice as stockholders
in respect of the meetings of stockholders or for the election of directors of
the Company or for any other matter, or any other rights whatsoever as
stockholders of the Company, except to the extent otherwise expressly provided
in this Agreement.
Section 3.03. Execution, Authentication, Delivery and Dating.
Upon the execution and delivery of this Agreement, and at any
time and from time to time thereafter, the Company may deliver Security
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 Security Certificates, and the Agent in
accordance with such Issuer Order shall authenticate, execute on behalf of the
Holder and deliver such Security Certificates.
The Security Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of the Board, its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Security Certificates may be manual
or facsimile.
Security 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 Security Certificates or did not hold such offices at the
date of such Security Certificates.
No Purchase Contract underlying a Security evidenced by a
Security Certificate shall be valid until such Security 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 Security Certificate has entered into the Purchase Contracts
underlying the Securities evidenced by such Security Certificate.
Each Security Certificate shall be dated the date of its
authentication.
No Security Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose unless there appears
on such Security 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 Security Certificate shall
be conclusive evidence, and the only evidence, that such Security Certificate
has been duly authenticated and delivered hereunder.
Section 3.04. Temporary Security Certificates.
Pending the preparation of definitive Security 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 Security Certificates, temporary Security Certificates which are 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 Securities are listed, or as
may, consistently herewith, be determined by the officers of the Company
executing such Security Certificates, as evidenced by their execution of the
Security Certificates.
If temporary Security Certificates are issued, the Company will
cause definitive Security Certificates to be prepared without unreasonable
delay. After the preparation of definitive Security Certificates, the
temporary Security Certificates shall be exchangeable for definitive Security
Certificates upon surrender of the temporary Security Certificates at the
Corporate Trust Office, at the expense of the Company and without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Security 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 Security Certificates of authorized
denominations and evidencing a like number of Securities as the temporary
Security Certificate or Security Certificates so surrendered. Until so
exchanged, the temporary Security Certificates shall in all respects evidence
the same benefits and the same obligations with respect to the Securities
evidenced thereby as definitive Security Certificates.
Section 3.05. Registration; Registration of Transfer and
Exchange.
The Agent shall keep at the Corporate Trust Office a register
(the register maintained in such office being herein referred to as the
"Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Agent shall provide for the registration of Security
Certificates and of transfers of Security Certificates (the Agent, in such
capacity, the "Security Registrar").
Upon surrender for registration of transfer of any Security
Certificate at the Corporate Trust 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 Security Certificates of
any authorized denominations and evidencing a like number of Securities.
At the option of the Holder, Security Certificates may be
exchanged for other Security Certificates, of any authorized denominations and
evidencing a like number of Securities, upon surrender of the Security
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Security 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 Security Certificates which the Holder
making the exchange is entitled to receive.
All Security Certificates issued upon any registration of
transfer or exchange of a Security Certificate shall evidence the ownership of
the same number of Securities and be entitled to the same benefits and subject
to the same obligations, under this Agreement as the Securities evidenced by
the Security Certificate surrendered upon such registration of transfer or
exchange.
Every Security 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 his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of a Security 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 Security Certificates, other than any
exchanges pursuant to Sections 3.06 and 8.05 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder and deliver any
Security Certificate presented or surrendered for registration of transfer or
for exchange on or after the Final Settlement Date or the Termination Date. In
lieu of delivery of a new Security 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 Final 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 Security Certificate, or (ii) if a
Termination Event shall have occurred prior to the Final Settlement Date,
transfer the principal amount of the Treasury Notes evidenced thereby, in each
case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Security Certificates:
(1) Each Global Security Certificate authenticated and
executed on behalf of the Holders under this Agreement shall be
registered in the name of the Depositary designated for such
Global Security Certificate or a nominee thereof and delivered to
such Depositary or a nominee thereof or custodian therefor, and
each such Global Security Certificate shall constitute a single
Security Certificate for all purposes of this Agreement.
(2) Notwithstanding any other provision in this Agreement,
no Global Security Certificate may be exchanged in whole or in part
for Security Certificates registered, and no transfer of a Global
Security Certificate in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global
Security Certificate or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Security
Certificate or (ii) has ceased to be a clearing agency registered
under the Exchange Act or (B) there shall have occurred and be
continuing a default by the Company in respect to its obligations
under one or more Purchase Contracts.
(3) Subject to Clause (2) above, any exchange of a Global
Security Certificate for other Security Certificates may be made
in whole or in part, and all Security Certificates issued in
exchange for a Global Security Certificate or any portion thereof
shall be registered in such names as the Depositary for such
Global Security Certificate shall direct.
(4) Every Security Certificate authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu
of, a Global Security Certificate or any portion thereof, whether
pursuant to this Section, Section 3.04, 3.06, 5.09 or 8.05 or
otherwise, shall be authenticated, executed on behalf of the
Holders and delivered in the form of, and shall be, a Global
Security Certificate, unless such Security Certificate is
registered in the name of a Person other than the Depositary for
such Global Security Certificate or a nominee thereof.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Security
Certificates.
If any mutilated Security 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 Security Certificate, evidencing the same number of Securities
and bearing a 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
Security Certificate, and (ii) such security or indemnity as may be required
by them to save 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 Security
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holder, and deliver to the Holder, in lieu of any such
destroyed, lost or stolen Security Certificate, a new Security Certificate,
evidencing the same number of Securities and bearing a 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 Security Certificate on or after the Final Settlement Date or the
Termination Date. In lieu of delivery of a new Security 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 Final 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 Security Certificate, or (ii) if a
Termination Event shall have occurred prior to the Final Settlement Date,
transfer the principal amount of the Treasury Notes 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 Security 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 fees and
expenses of the Agent) connected therewith.
Every new Security Certificate issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security Certificate shall constitute
an original additional contractual obligation of the Company and of the
Holder, whether or not the destroyed, lost or stolen Security Certificate
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 Security 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 settlement of mutilated, destroyed, lost or stolen Security
Certificates.
Section 3.07. Persons Deemed Owners.
Prior to due presentment of a Security 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 Security
Certificate is registered as the owner of the Securities evidenced thereby,
for the purpose of receiving payments of interest on the Treasury Notes,
receiving payments of Yield Enhancement Payments, performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not the payment of
interest on the Treasury Notes or any Yield Enhancement Payment payable in
respect of the Purchase Contracts constituting a part of the Securities
evidenced thereby 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
Security 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 Depositary (or
its nominee), as a Holder, with respect to such Global Security Certificate or
impair, as between such Depositary and owners of beneficial interests in such
Global Security Certificate, the operation of customary practices governing
the exercise of rights of such Depositary (or its nominee) as Holder of such
Global Security Certificate.
Section 3.08. Cancellation.
All Security Certificates surrendered for delivery of shares of
Common Stock on or after the Final Settlement Date, transfer of Treasury Notes
after the occurrence of a Termination Event or pursuant to an Early Settlement
or registration of transfer or exchange 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 Security Certificates previously authenticated,
executed and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Security Certificates so delivered shall, upon
Issuer Order, be promptly cancelled by the Agent. No Security Certificates
shall be authenticated, executed on behalf of the Holder and delivered in lieu
of or in exchange for any Security Certificates cancelled as provided in this
Section, except as expressly permitted by this Agreement. All cancelled
Security Certificates held by the Agent shall be disposed of as directed by
Issuer Order.
If the Company or any Affiliate of the Company shall acquire
any Security Certificate, such acquisition shall not operate as a cancellation
of such Security Certificate unless and until such Security Certificate is
delivered to the Agent cancelled or for cancellation.
Section 3.09. Securities Not Separable.
Notwithstanding anything contained herein or in the Security
Certificates to the contrary, for so long as the Purchase Contract comprising
a portion of a Security remains in effect, such Security shall not be
separable into its constituent parts, for purposes of transfer or exchange of
such Security, and the rights and obligations of the Holder of such Security
in respect of the Treasury Notes and Purchase Contracts comprising such
Security may be acquired, and may be transferred and exchanged, only as a
Security. Other than a Security Certificate evidencing a Security, no Holder
of a Security, or any transferee thereof, shall be entitled to receive a
certificate evidencing the ownership of Treasury Notes or the rights and
obligations of the Holder and the Company under a Purchase Contract for so
long as the Purchase Contract underlying the Security remains in effect.
Section 3.10. No Consent to Assumption.
Each Holder of a Security, by acceptance thereof, shall be
deemed expressly to have withheld any consent to the assumption under Section
365 of the Bankruptcy Code or otherwise, of the Purchase Contract by the
Company or its trustee in the event that the Company becomes the debtor under
the Bankruptcy Code.
ARTICLE 4
The Treasury Notes
Section 4.01. Payment of Interest; Interest Rights Preserved.
Interest on any Treasury Note which is paid on any Payment Date
shall, subject to receipt thereof by the Agent from the Collateral Agent as
provided by the terms of the Pledge Agreement, be paid to the Person in whose
name the Security Certificate (or one or more Predecessor Security
Certificates) of which such Treasury Note is a part is registered at the close
of business on the Record Date next preceding such Payment Date.
Each Security Certificate evidencing Treasury Notes delivered
under this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Security Certificate shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by the Treasury Notes
underlying such other Security Certificate.
In the case of any Security with respect to which Early
Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date after any Record Date and on or prior to the next succeeding
Payment Date, interest on the Treasury Notes underlying such Security
otherwise payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Early Settlement, and such interest shall, subject to
receipt thereof by the Agent, be paid to the Person in whose name the Security
Certificate (or one or more Predecessor Security Certificates) is 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 Security
with respect to which Early Settlement of the underlying Purchase Contract is
effected on an Early Settlement Date, interest on the related Treasury Notes
that would otherwise be payable after the Early Settlement Date shall not be
payable hereunder to the Holder of such Security.
Section 4.02. Transfer of Treasury Notes upon Occurrence of
Termination Event.
Upon the occurrence of a Termination Event and the transfer to
the Agent of the Treasury Notes underlying such Securities pursuant to the
terms of the Pledge Agreement, the Agent shall request transfer instructions
with respect to such Treasury Notes from each Holder of Securities by written
request mailed to such Holder at his address as it appears in the Security
Register, in respect of the Treasury Notes underlying the Security Certificate
held by such Holder. Upon surrender to the Agent of a Security Certificate
with such transfer instructions in proper form for transfer of the Treasury
Notes by Federal Reserve Bank-Wire or other appropriate procedure, the Agent
shall transfer the Treasury Notes evidenced by such Security Certificate to
such Holder in accordance with such instructions. If a Security Certificate is
not duly surrendered to the Agent with appropriate transfer instructions, the
Agent shall hold the Treasury Notes evidenced by such Security Certificate as
custodian for the Holder of such Security Certificate.
Treasury Notes shall be transferred only in denominations of
$1,000 and integral multiples thereof. As promptly as practicable following
the occurrence of a Termination Event, the Agent shall determine the excess of
(i) the aggregate principal amount of Treasury Notes underlying the
Outstanding Securities over (ii) the aggregate principal amount of Treasury
Notes in denominations of $1,000 and integral multiples thereof transferrable
to Holders of record on the date of such Termination Event (such excess being
herein referred to as the "Excess Treasury Notes"). As soon as practicable
after transfer to the Agent of the Treasury Notes underlying the Outstanding
Securities as provided in the Pledge Agreement, the Agent shall sell the
Excess Treasury Notes to or through one or more U.S. Government securities
dealers at then prevailing prices. The Agent shall deduct from the proceeds of
such sales all commissions and other out-of-pocket transaction costs incurred
in connection with such sales of Excess Treasury Notes and, until the net
proceeds of such sale or sales have been distributed to Holders of the
Securities, the Agent shall hold such proceeds as custodian for the Holders of
Securities. Such proceeds shall be held by the Agent uninvested without
liability to any Person for interest or other compensation thereon. Each
Holder shall be entitled to receive a portion, if any, of such net proceeds in
lieu of Treasury Notes with a principal amount of less than $1,000 determined
by multiplying the aggregate amount of such net proceeds by a fraction, the
numerator of which is the fraction of $1,000 in principal amount of Treasury
Notes to which such Holder would otherwise be entitled (after taking into
account all Securities then held by such Holder) and the denominator of which
is the aggregate principal amount of Excess Treasury Notes.
ARTICLE 5
The Purchase Contracts
Section 5.01. 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 Final Settlement Date at
a price equal to the Stated Amount, a number of shares of Common Stock equal
to the Settlement Rate, unless, on or prior to the Final 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 greater than $___________ (the "Threshold Appreciation Price"),
_____________ of a share of Common Stock per Purchase Contract, (b) if the
Applicable Market Value is less than or equal to the Threshold Appreciation
Price but is greater than the Stated Amount, a fractional share of Common
Stock per Purchase Contract equal to the Stated Amount divided by the
Applicable Market Value (rounded upward or downward to the nearest 1/l0,000th
of a share) and (c) if the Applicable Market Value is less than or equal to
the Stated Amount, one share of Common Stock per Purchase Contract, in each
case subject to adjustment as provided in Section 5.06. As provided in Section
5.10, no fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts.
The "Applicable Market Value" means the average of the Closing
Prices per share of Common Stock on each of the twenty consecutive Trading
Days ending on the second Trading Day immediately preceding the Final
Settlement Date. The "Closing Price" of the Common Stock on any date of
determination means the closing sale price (or, if no closing price is
reported, the last reported sale price) of the Common Stock on the New York
Stock Exchange (the "NYSE") on such date or, if the Common Stock is not
listed for trading on the NYSE on any such date, as reported in the
composite transactions for the principal United States securities exchange
on which the Common Stock is so listed, or if the Common Stock is not so
listed on a United States national or regional securities exchange, as
reported by The Nasdaq Stock Market, or, if the Common Stock is not so
reported, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the National Quotation Bureau or
similar organization, or, if such bid price is not available, the market
value of the Common Stock on such date as determined by a nationally
recognized independent investment banking firm retained for this purpose by
the Company. A "Trading Day" means a day on which the Common Stock (A) is
not suspended from trading on any national or regional securities exchange
or association or over-the-counter market at the close of business and (B)
has traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a Security Certificate evidencing Securities, by
his acceptance thereof, authorizes the Agent to enter into and perform the
related Purchase Contracts on his behalf as his attorney-in-fact, agrees to be
bound by the terms and provisions thereof, covenants and agrees to perform his
obligations under such Purchase Contracts, consents to the provisions hereof,
irrevocably authorizes the Agent as his attorney-in-fact to enter into and
perform the Pledge Agreement on his behalf as his attorney-in-fact, and
consents to and agrees to be bound by the Pledge of the Treasury Notes
underlying such Security Certificate pursuant to the Pledge Agreement;
provided that upon an Event of Termination the rights of the Holder of such
Security under the Purchase Contract may be enforced without regard to any
other rights or obligations. Each Holder of a Security, by his acceptance
thereof, further covenants and agrees, that, to the extent and in the manner
provided in Section 5.04 and the Pledge Agreement, but subject to the terms
thereof, payments in respect of principal of the Treasury Notes on the Final
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 payments.
Upon registration of transfer of a Security Certificate
evidencing Purchase Contracts, the transferee shall be bound (without the
necessity of any other action on the part of such transferee), under the terms
of this Agreement, the Purchase Contracts evidenced thereby and the Pledge
Agreement and the transferor shall be released from the obligations under the
Purchase Contracts evidenced by the Security Certificates so transferred. The
Company covenants and agrees, and each Holder of a Security Certificate, by
his acceptance thereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
Section 5.02. Yield Enhancement Payments.
Subject to Section 5.03, the Company shall pay, on each Payment
Date, the Yield Enhancement Payments payable in respect of each Purchase
Contract to the Person in whose name the Security Certificate (or one or more
Predecessor Security Certificates) evidencing such Purchase Contract is
registered at the close of business on the Record Date next preceding such
Payment Date. The Yield Enhancement Payment will be payable at the office of
the Agent in The City of New York maintained for that purpose or, at the
option of the Company, by check mailed to the address of the Person entitled
thereto at such address as it appears on the Security Register.
Each Security Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any other
Security Certificate shall carry the rights to Yield Enhancement Payments
accrued and unpaid, and to accrue, which were carried by the Purchase
Contracts evidenced by such other Security Certificate.
[In the case of any Security with respect to which Early
Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date after any Record Date and on or prior to the next succeeding
Payment Date, Yield Enhancement Payments otherwise payable on such Payment
Date shall be payable on such Payment Date notwithstanding such Early
Settlement, and such Yield Enhancement Payments shall be paid to the Person in
whose name the Security Certificate evidencing such Security (or one or more
Predecessor Security Certificates) is registered at the close of business on
such Record Date. Except as otherwise expressly provided in the immediately
preceding sentence, in the case of any Security with respect to which Early
Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date, Yield Enhancement Payments that would otherwise be payable
after the Early Settlement Date with respect to the Purchase Contract
underlying such Security shall not be payable.]
The Company's obligations with respect to Yield Enhancement
Payments are subordinate and junior in right of payment to all liabilities of
the Company and pari passu with the most senior preferred stock issued from
time to time, if any, by the Company.
Section 5.03. Deferral of Payment Dates for Yield Enhancement
Payment.
The Company shall have the right, at any time prior to the
Final Settlement Date, to defer the payment of any or all of the Yield
Enhancement 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 Yield Enhancement Payment to the
New York Stock Exchange or other applicable self-regulatory organization or to
Holders of the Securities, but in any event not less than two Business Days
prior to such Record Date. Any Yield Enhancement Payments so deferred shall
bear additional Yield Enhancement Payments thereon at the rate of _____% per
annum (computed on the basis of the actual number of days elapsed in a year of
365 or 366 days, as the case may be), compounding on each succeeding Payment
Date, until paid in full (such deferred installments of Yield Enhancement
Payments together with the additional Yield Enhancement Payments accrued
thereon, are referred to herein as the "Deferred Yield Enhancement Payments").
Deferred Yield Enhancement Payments shall be due on the next succeeding
Payment Date except to the extent that payment is deferred pursuant to this
Section. No Yield Enhancement Payments may be deferred to a date that is after
the Final Settlement Date or, with respect to any particular Purchase
Contract, Early Settlement thereof.
In the event that the Company elects to defer the payment of
Yield Enhancement Payments on the Purchase Contracts until the Final
Settlement Date, each holder will receive on the Final 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 Yield Enhancement Payments payable to a Holder divided
by (y) the Applicable Market Value.
No fractional shares of Common Stock will be issued by the
Company with respect to the payment of Deferred Yield Enhancement Payments on
the Final Settlement Date. In lieu of fractional shares otherwise issuable
with respect to such payment of Deferred Yield Enhancement Payments, the
Holder will be entitled to receive an amount in cash as provided in Section
5.10.
In the event the Company exercises its option to defer the
payment of Yield Enhancement Payments, then (a) 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) purchase or acquisitions of shares of Common Stock in
connection with the satisfaction by the Company of its obligations under any
employee benefit plans or the satisfaction by the Company of its obligations
pursuant to any contract or security requiring the Company to purchase shares
of Common Stock, (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 or (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) or make any
guarantee payments with respect to the foregoing), (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by the
Company that rank pari passu with or junior to such Yield Enhancement Payments
and (c) the Company shall not make any guarantee payments with respect to the
foregoing.
Section 5.04. Payment of Purchase Price.
The purchase price for the shares of Common Stock purchased
pursuant to a Purchase Contract, shall be paid by application of payments
received by the Company on the Final Settlement Date from the Collateral Agent
pursuant to the Pledge Agreement in respect of the principal of the Treasury
Notes Pledged to secure the obligations of the relevant Holder under such
Purchase Contract. Such application shall satisfy in full the obligations
under such Purchase Contract of the Holder of the Security of which such
Purchase Contract is a part. 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.
Section 5.05. Issuance of Shares of Common Stock.
Unless a Termination Event shall have occurred on or prior to
the Final Settlement Date, on the Final 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 in
payment of Deferred Yield Enhancement Payments, if any, owed by the Company to
the Holders and subject to Section 5.06(b), the Company shall issue and
deposit with the Agent, for the benefit of the Holders of the Outstanding
Securities, one or more certificates representing the 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 with respect thereto, being hereinafter referred to
as the "Final Settlement Fund") to which the Holders are entitled hereunder.
Subject to the foregoing, upon surrender of a Security Certificate to the
Agent on or after the Final Settlement Date, together with settlement
instructions thereon duly completed and executed, the Holder of such Security
Certificate shall be entitled to receive in exchange therefor a certificate
representing that number of whole shares of Common Stock which such Holder is
entitled to receive pursuant to the provisions of this Article Five (after
taking into account all Securities then held by such Holder) together with
cash in lieu of fractional shares as provided in Section 5.10 and any
dividends or distributions with respect to such shares constituting part of
the Final Settlement Fund, but without any interest thereon, and the Security
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 on the Security Certificate. If any shares of
Common Stock issued in respect of a Purchase Contract and in payment of any
Deferred Yield Enhancement Payments are to be registered to a Person other
than the Person in whose name the Security 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 Security Certificate evidencing such Purchase
Contract or has established to the satisfaction of the Company that such tax
either has been paid or is not payable.
Section 5.06. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on any class of Common Stock of the Company in Common Stock, the
Settlement Rate in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be increased by dividing such Settlement
Rate by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other
distribution, such increase to become effective immediately after the opening
of business on the day following the date fixed for such determination. For
the purposes of this paragraph (1), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not
pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants
to all holders of its Common Stock (not being available on an equivalent
basis to Holders of the Securities upon settlement of the Purchase
Contracts underlying such Securities) entitling them, for a period expiring
within 45 days after the record date for the determination of stockholders
entitled to receive such rights, options or warrants, to subscribe for or
purchase shares of Common Stock at a price per share less than the Current
Market Price per share of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights, options or
warrants (other than pursuant to a dividend reinvestment plan), the
Settlement Rate in effect at the opening of business on the day following
the date fixed for such determination shall be increased by dividing such
Settlement Rate by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such
Current Market Price and the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock so offered for
subscription or purchase, such increase to become effective immediately
after the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of
shares of Common Stock at any time outstanding shall not include shares
held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of
Common Stock. The Company shall not issue any such rights, options or
warrants in respect of shares of Common Stock held in the treasury of the
Company.
(3) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common Stock, the
Settlement Rate in effect at the opening of business on the day following the
day upon which such subdivision or split becomes effective shall be
proportionately increased, and, conversely, in case outstanding shares of
Common Stock shall each be combined into a smaller number of shares of Common
Stock, the Settlement Rate in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day
following the day upon which such subdivision, split or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness or
assets (including securities, 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 adjusted so that the same
shall equal the rate determined by dividing the Settlement Rate in effect
immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the Current Market Price per share of
the Common Stock on the date fixed for such determination less the then fair
market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution filed with the Agent)
of the portion of the assets or evidences of indebtedness so distributed
applicable to one share of Common Stock and the denominator shall all 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 any cash that is
distributed in a Reorganization Event to which Section 5.06(b) applies or as
part of a distribution referred to in paragraph (4) of this Section) in an
aggregate amount that, combined together with (II) the aggregate amount of any
other distributions to all holders of its Common Stock made exclusively in
cash within the 12 months preceding the date of payment of such distribution
and in respect of which no adjustment pursuant to this paragraph (5) or
paragraph (6) of this Section has been made and (III) the aggregate of any
cash plus the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board Resolution)
of consideration payable in respect of any tender or exchange offer by the
Company or any of its subsidiaries for all or any portion of the Common Stock
concluded within the 12 months preceding the date of payment of the
distribution described in clause (I) above and in respect of which no
adjustment pursuant to this paragraph (5) or paragraph (6) of this Section has
been made, exceeds 15% of the product of the Current Market Price per share of
the Common Stock on the date for the determination of holders of shares of
Common Stock entitled to receive such distribution times the number of shares
of Common Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date for determination, the
Settlement Rate shall be increased so that the same shall equal the rate
determined by dividing the Settlement Rate in effect immediately prior to the
close of business on the date fixed for determination of the stockholders
entitled to receive such distribution by a fraction (i) the numerator of which
shall be equal to the Current Market Price per share of the Common Stock on
the date fixed for such determination less an amount equal to the quotient of
(x) the combined amount distributed or payable in the transactions described
in clauses (I), (II) and (III) above and (y) the number of shares of Common
Stock outstanding on such date for determination and (ii) the denominator of
which shall be equal to the Current Market Price per share of the Common Stock
on such date for determination.
(6) In case (I) a tender or exchange offer made by the Company or
any subsidiary of the Company for all or any portion of the Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to stockholders (based on the acceptance
(up to any maximum specified in the terms of the tender or exchange offer) of
Purchased Shares) of an aggregate consideration having a fair market value as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) that combined together with (II) the
aggregate of the cash plus the fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution), as of the expiration of such tender or exchange offer, of
consideration payable in respect of any other tender or exchange offer, by the
Company or any subsidiary of the Company for all or any portion of the Common
Stock expiring within the 12 months preceding the expiration of such tender or
exchange offer and in respect of which no adjustment pursuant to paragraph (5)
of this Section or this paragraph (6) has been made and (III) the aggregate
amount of any distributions to all holders of the Company's Common Stock made
exclusively in cash within the 12 months preceding the expiration of such
tender or exchange offer and in respect of which no adjustment pursuant to
paragraph (5) of this Section or this paragraph (6) has been made, exceeds 15%
of the product of the Current Market Price per share of the Common Stock as of
the last time (the "Expiration Time") tenders could have been made pursuant to
such tender or exchange offer (as it may be amended) times the number of
shares of Common Stock outstanding (including any tendered shares) on the
Expiration Time, then, and in each such case, immediately prior to the opening
of business on the day after the date of the Expiration Time, the Settlement
Rate shall be adjusted so that the same shall equal the rate determined by
dividing the Settlement Rate immediately prior to the close of business on the
date of the Expiration Time by a fraction (i) the numerator of which shall be
equal to (A) the product of (I) the Current Market Price per share of the
Common Stock on the date of the Expiration Time and (II) the number of shares
of Common Stock outstanding (including any tendered shares) on the Expiration
Time less (B) the amount of cash plus the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the
transactions described in clauses (I), (II) and (III) above (assuming in the
case of clause (I) the acceptance, up to any maximum specified in the terms of
the tender or exchange offer, of Purchased Shares), and (ii) the denominator
of which shall be equal to the product of (A) the Current Market Price per
share of the Common Stock as of the Expiration Time and (B) the number of
shares of Common Stock outstanding (including any tendered shares) as of the
Expiration Time less the number of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares deemed so accepted, up to any
such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 5.06(b) applies) shall be deemed to
involve (a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of stockholders entitled
to receive such distribution" and the "date fixed for such determination"
within the meaning of paragraph (4) of this Section), and (b) a subdivision,
split or combination, as the case may be, of the number of shares of Common
Stock outstanding immediately prior to such reclassification into the number
of shares of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be "the day upon
which such subdivision or split becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day upon which
such subdivision, split or combination becomes effective" within the meaning
of paragraph (3) of this Section).
(8) The "Current Market Price" per share of Common Stock on any
day means the average of the daily Closing Prices for the 5 consecutive
Trading Days selected by the Company commencing not more than 20 Trading Days
before, and ending not later than, the earlier of the day in question and the
day before the "ex date" with respect to the issuance or distribution
requiring such computation. For purposes of this paragraph, the term "ex
date", when used with respect to any issuance or distribution, shall mean the
first date on which the Common Stock trades regular way on such exchange or in
such market without the right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate shall be calculated to
the nearest 1/l0,000th of a share of Common Stock (or if there is not a nearest
1/l0,000th of a share to the next lower 1/l0,000th of a share). No adjustment
in the Settlement Rate shall be required unless such adjustment would require
an increase or decrease of at least one percent therein; provided, however,
that any adjustments which by reason of this subparagraph are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. If an adjustment is made to the Settlement Rate pursuant to
paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section 5.06(a),
an adjustment shall also be made to the Applicable Market Value solely to
determine which of clauses (a), (b) or (c) of the definition of Settlement
Rate in Section 5.01 will apply on the Final Settlement Date. Such adjustment
shall be made by multiplying the Applicable Market Value by a fraction of
which the numerator shall be the Settlement Rate immediately after such
adjustment pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of
this Section 5.06(a) and the denominator shall be the Settlement Rate
immediately before such adjustment.
(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section, as it considers to be advisable in
order to avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance of
rights or warrants to purchase or subscribe for stock or from any event
treated as such for income tax purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event. In the event of (i) any consolidation or merger of the Company, with or
into another Person (other than a merger or consolidation in which the Company
is the continuing corporation and in which the Common Stock outstanding
immediately prior to the merger or consolidation is not exchanged for cash,
securities or other property of the Company or another corporation), (ii) any
sale, transfer, lease or conveyance to another Person of the property of the
Company as an entirety or substantially as an entirety, (iii) any statutory
exchange of securities of the Company with another Person (other than in
connection with a merger or acquisition) or (iv) any liquidation, dissolution
or winding up of the Company other than as a result of or after the occurrence
of a Termination Event (any such event, a "Reorganization Event"), the
Settlement Rate will be adjusted to provide that each Holder of Securities
will receive on the Final Settlement Date with respect to each Purchase
Contract forming a part thereof, the kind and amount of securities, cash and
other property receivable upon such Reorganization Event by a Holder of the
number of shares of Common Stock issuable on account of each Purchase Contract
if the Final 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 ("Constituent Person"), or an Affiliate of a constituent Person,
and failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash and other property receivable upon such
Reorganization Event (provided that if the kind or amount of securities, cash
and other property receivable upon such Reorganization Event is not the same
for each share of Common Stock held immediately prior to such Reorganization
Event by other than a constituent Person or an Affiliate thereof and in
respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section the kind and
amount of securities, cash and other property receivable upon such
Reorganization Event by each non-electing share shall be deemed to be the kind
and amount so receivable per share by a plurality of the non-electing shares).
In the event of such a Reorganization Event, the Person formed by such
consolidation, merger or exchange or the Person which acquires the assets of
the Company or, in the event of a liquidation or dissolution of the Company,
the Company or a liquidating trust created in connection therewith, shall
execute and deliver to the Agent an agreement supplemental hereto providing
that the Holders of each Outstanding Security shall have the rights provided
by this Section 5.06. Such supplemental agreement shall provide for
adjustments which, for events subsequent to the effective date of such
supplemental agreement, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section. The above provisions of this
Section shall similarly apply to successive Reorganization Events.
Section 5.07. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided,
the Company shall:
(i) forthwith compute the adjusted Settlement Rate in
accordance with Section 5.06 and prepare and transmit to the
Agent an Officers' Certificate setting forth the Settlement Rate,
the method of calculation thereof in reasonable detail, and the
facts requiring such adjustment and upon which such adjustment is
based; and
(ii) within 10 Business Days following the occurrence of an
event that permits or requires an adjustment to the Settlement
Rate pursuant to Section 5.06 (or if the Company is not aware of
such occurrence, as soon as practicable after becoming so aware),
provide a written notice to the Holders of the Securities of the
occurrence of such event and a statement in reasonable detail
setting forth the method by which the adjustment to the
Settlement Rate was determined and setting forth the adjusted
Settlement Rate.
(b) The Agent shall not at any time be under any duty or
responsibility to any holder of Securities to determine whether any facts
exist which may require any adjustment of the Settlement Rate, or with respect
to the nature or extent or calculation of any such adjustment when made, or
with respect to the method employed in making the same. The Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property, which may at the
time be issued or delivered with respect to any Purchase Contract; and the
Agent makes no representation with respect thereto. The Agent shall not be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock pursuant to a Purchase Contract or to comply with any
of the duties, responsibilities or covenants of the Company contained in this
Article.
Section 5.08. Termination Event; Notice.
The Purchase Contracts and the obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
of the Holders to receive and the obligation of the Company to pay any Yield
Enhancement Payment, 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 Final 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 Treasury Notes forming a
part of such Securities in accordance with the provisions of Section 4.02 and
the Pledge Agreement. Upon the occurrence of a Termination Event, the Company
shall promptly but in no event after two business days thereafter give written
notice to the Agent, the Collateral Agent and to the Holders, at their
addresses as they appear in the Security Register.
Each Holder of Securities, by acceptance hereof, 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.
Section 5.09. Early Settlement.
(a) Subject to and upon compliance with the provisions of this
Section 5.09 at the option of the Holder thereof, any Purchase Contracts
underlying Securities having an aggregate Stated Amount equal to $__________
or an integral multiple thereof may be settled early ("Early Settlement") as
provided herein. In order to exercise the right to effect Early Settlement
with respect to any Purchase Contracts, the Holder of the Security Certificate
evidencing such Purchase Contracts shall deliver such Security Certificate to
the Agent at the Corporate Trust Office duly endorsed for transfer to the
Company or in blank with the form of Election to Settle Early on the reverse
thereof duly completed and accompanied by payment in the form of a certified
or cashier's check payable to the order of the Company in immediately
available funds in an amount (the "Early Settlement Amount") equal to (i) the
product of (A) the Stated Amount times (B) the number of Purchase Contracts
with respect to which the Holder has elected to effect Early Settlement [plus
(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 sum of (x) the Yield Enhancement Payments payable on such Payment Date
with respect to such Purchase Contracts plus (y) the interest on the related
Treasury Notes payable on such Payment Date. Except as provided in the
immediately preceding sentence and subject to the second to last paragraph of
Section 5.02, no payment or adjustment shall be made upon Early Settlement of
any Purchase Contract on account of any Yield Enhancement Payments accrued on
such Purchase Contract or on account of any dividends on the Common Stock
issued upon such Early Settlement]. If the foregoing requirements are first
satisfied with respect to Purchase Contracts underlying any Securities at or
prior to 5:00 p.m., New York City time, on a Business Day, such day shall be
the "Early Settlement Date" with respect to such Securities and if such
requirements are first satisfied after 5:00 p.m., New York City time, on a
Business Day or on a day that is not a Business Day, the "Early Settlement
Date" with respect to such Securities shall be the next succeeding Business
Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of
the related Securities, the Company shall issue, and the Holder shall be
entitled to receive, a number of shares of Common Stock on account of each
Purchase Contract as to which Early Settlement is effected equal to the
Early Settlement Rate; provided, however, that upon the Early Settlement of
the Purchase Contracts, the Holder of such related Securities will forfeit
the right to receive any Deferred Yield Enhancement Payments. The Early
Settlement Rate shall initially be equal to __________ and shall be
adjusted in the same manner and at the same time as the Settlement Rate is
adjusted. As promptly as practicable after Early Settlement of Purchase
Contracts in accordance with the provisions of this Section 5.09, the
Company shall issue and shall deliver to the Agent at the Corporate Trust
Office a certificate or certificates for the full number of shares of
Common Stock issuable upon such Early Settlement together with payment in
lieu of any fraction of a share, as provided in Section 5.10.
(c) The Company shall cause the shares of Common Stock
issuable, and Treasury Notes deliverable, upon Early Settlement of Purchase
Contracts to be issued and delivered' in the case of such shares of Common
Stock, and released from the Pledge by the Collateral Agent and
transferred, in the case of such Treasury Notes, to the Agent, for delivery
to the Holder thereof or its designee, no later than the third Business Day
after the applicable Early Settlement Date.
(d) Upon Early Settlement of any Purchase Contracts, and
subject to receipt thereof from the Company or the Collateral Agent, as
applicable, the Agent shall, in accordance with the instructions provided
by the Holder thereof on the applicable form of Election to Settle Early on
the reverse of the Security Certificate evidencing the related Securities'
(i) transfer the Treasury Notes forming a part of such Securities and (ii)
deliver a certificate or certificates for the full number of shares of
Common Stock issuable upon such Early Settlement together with payment in
lieu of any fraction of a share, as provided in Section 5.10.
(e) In the event that Early Settlement is effected with
respect to Purchase Contracts underlying less than all the Securities
evidenced by a Security Certificate, upon such Early Settlement the Company
shall execute and the Agent shall authenticate, countersign and deliver to
the Holder thereof, at the expense of the Company, a Security- Certificate
evidencing the Securities as to which Early Settlement was not effected.
Section 5.10. No Fractional Shares.
No fractional shares or scrip representing fractional shares of
Common Stock shall be issued or delivered upon settlement on the Final
Settlement Date or upon Early Settlement of any Purchase Contracts or with
respect to the payment of Deferred Yield Enhancement Payments, if any, on the
Final Settlement Date. If Security 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 Security Certificates so surrendered.
Instead of any fractional share of Common Stock which would otherwise be
deliverable upon settlement of any Purchase Contracts on the Final Settlement
Date or upon Early Settlement or with respect to the payment of any Deferred
Yield Enhancement Payments, 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 at the Closing Price per share on the Trading Day
immediately preceding the Final Settlement Date or the related Early
Settlement Date, respectively. 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 5.10 in a timely manner.
Section 5.11. Charges and Taxes.
The Company will pay all stock transfer and similar taxes
attributable to the initial issuance and delivery of the shares of Common
Stock pursuant to the Purchase Contracts and in payment of any Deferred Yield
Enhancement 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 Security Certificate evidencing a Purchase
Contract or any issuance of a share of Common Stock in a name other than that
of the registered Holder of a Security Certificate surrendered in respect of
the Purchase Contracts 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 Security 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.
ARTICLE 6
Remedies
Section 6.01. Unconditional Right of Holders to Receive Yield
Enhancement.
The Holder of any Security shall have the right, which is
absolute and unconditional (subject to the right of the Company to defer
payment thereof pursuant to Section 5.03 and subject to the forfeiture of any
Deferred Yield Enhancement Payments upon Early Settlement pursuant to Section
5.09(b)), to receive payment of each installment of the Yield Enhancement
Payment with respect to the Purchase Contract constituting a part of such
Security on the respective Payment Date for such Security and 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 6.02. Restoration of Rights and Remedies.
If any Holder of Securities has instituted any proceeding to
enforce any right or remedy under this Agreement and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of such Holder shall continue as though no such proceeding had been
instituted.
Section 6.03. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement of
mutilated, destroyed, lost or stolen Security Certificates in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or
reserved to the Holders of Securities is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 6.04. Rights and Remedies Cumulative.
No delay or omission of any Holder to exercise any right or
remedy shall impair any such right or remedy or constitute a waiver of any
such right. Every right and remedy given by this Article or by law to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
Section 6.05. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of any
Security by his acceptance of the Security Certificate evidencing such
Security shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Agreement, or in any suit against the Agent for any action taken, suffered or
omitted by it as Agent, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
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 of Securities, 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 the payment of the interest on any Treasury Note or the
Yield Enhancement Payment on any Purchase Contract on or after the respective
Payment Date therefor constituting a part of the Securities held by such
Holder, or for enforcement of the right to purchase shares of Common Stock
under the Purchase Contracts constituting a part of the Securities held by
such Holder.
Section 6.06. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Agreement; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Agent or the Holders,
but will suffer and permit the execution of every such power as though no such
law had been enacted.
ARTICLE 7
The Agent
Section 7.01. Certain Duties and Responsibilities.
(a)(1) The Agent undertakes to perform, with respect to the
Securities, such duties and only such duties as are specifically
set forth in this Agreement and the Pledge Agreement, and no
implied covenants or obligations shall be read into this
Agreement against the Agent; and
(2) in the absence of bad faith or negligence on its part,
the Agent may, with respect to the Securities, conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions
furnished to the Agent and conforming to the requirements of this
Agreement, 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.
(b) No provision of this Agreement shall be construed to relieve
the Agent from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, 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' if adequate
indemnity is not provided to it.
(c) Whether or not therein expressly so provided, every provision
of this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of this
Section.
Section 7.02. Notice of Default.
Within 30 days after the occurrence of any default by the
Company hereunder, of which a Responsible Officer of the Agent has actual
knowledge, the Agent shall transmit by mail to all Holders of Securities, as
their names and addresses appear in the Security Register, notice of such
default hereunder, unless such default shall have been cured or waived.
Section 7.03. Certain Rights of Agent.
Subject to the provisions of Section 7.01:
(a) the Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Agent (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate of the Company;
(d) the Agent may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Agent, in its discretion, may make reasonable further inquiry or
investigation into such facts or matters related to the issuance of the
Securities and 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 entitled to examine
the books, records and promises of the Company, personally or by agent or
attorney; and
(f) the Agent may execute any of its powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys or
an Affiliate and the Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney or an Affiliate appointed with
due care by it hereunder.
Section 7.04. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Security Certificates
shall be taken as the statements of the Company and the Agent assumes no
responsibility for their accuracy. The Agent makes no representations as to
the validity or sufficiency of either this Agreement or of the Securities, or
of the Pledge Agreement or the Pledge. The Agent shall not be accountable for
the use or application by the Company of the proceeds in respect of the
Purchase Contracts.
Section 7.05. May Hold Securities.
Any Security 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 Security Registrar or such other agent, or the Agent.
Section 7.06. Money Held in Custody.
Money held by the Agent in custody hereunder need not be
segregated from the other funds except to the extent required by law. The
Agent shall be under no obligation to invest or pay interest on any money
received by it hereunder except as otherwise agreed in writing with the
Company.
Section 7.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Agent from time to time reasonable
compensation for all services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to
reimburse the Agent upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Agent in accordance with any provision of this Agreement
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Agent and any predecessor Agent
for, and to hold each of them harmless against, any loss,
liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the
acceptance or administration of its duties hereunder,
including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
Section 7.08. Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having (or
being a member of a bank holding company having) a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
Federal or State authority and having a Corporate Trust Office in the
Borough of Manhattan, The City of New York, if there be such a corporation
in the Borough of Manhattan, The City of New York qualified and eligible
under this Article and willing to act on reasonable terms. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time
the Agent shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 7.09. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Agent and no appointment
of a successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 7.10.
(b) The Agent may resign at any time by giving written notice
thereof to the Company 60 days prior to the effective date of such
resignation. If the instrument of acceptance by a successor Agent required by
Section 7.10 shall not have been delivered to the Agent within 30 days after
the giving of such notice of resignation, the resigning Agent may petition any
court of competent jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders
of a majority in number of the Outstanding Securities delivered to the
Agent and the Company.
(d) if at any time
(1) the Agent fails to comply with Section 310(b) of the
TIA, as if the Agent were an indenture trustee under an
indenture qualified under the TIA, after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Agent shall cease to be eligible under Section
7.08 and shall fail to resign after written request therefor
by the Company or by any such Holder, or
(3) the Agent shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the
Agent or of its property shall be appointed or any public
officer shall take charge or control of the Agent or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Agent, or (ii) any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Agent and
the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Agent for any
cause, the Company, by a Board Resolution, shall promptly appoint a
successor Agent and shall comply with the applicable requirements of
Section 7.10. If no successor Agent shall have been so appointed by the
Company and accepted appointment in the manner required by Section 7.10,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Agent.
(f) The Company shall give, or shall cause such successor Agent
to give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities as their names
and addresses appear in the Security Register. Each notice shall include the
name of the successor Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Agent,
every such successor Agent so appointed shall execute, acknowledge and deliver
to the 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 Security 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
Security Certificates so authenticated and executed with the same effect as if
such successor Agent had itself authenticated and executed such Securities.
Section 7.12. Preservation of Information; Communications to
Holders.
(a) The Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by the
Agent in its capacity as Security Registrar.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Agent, and furnish to the Agent
reasonable proof that each such applicant has owned a Security for a period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Agent
shall, within five Business Days after the receipt of such application,
afford such applicants access to the information preserved at the time by
the Agent in accordance with Section 7.12(a).
(d) Every Holder of Securities, by receiving and holding the
Security Certificates evidencing the same, agrees with the Company and the
Agent that none of the Company, the Agent nor any agent of any of them shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section 7.12(b),
regardless of the source from which such information was derived.
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 Security Certificate, by his
acceptance thereof, shall be deemed to have agreed, that the Agent's
execution of the Security 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 Five
hereof.
Section 7.14. Tax Compliance.
(a) The Agent, on its own behalf and on behalf of the
Company, will comply with all applicable certification, information
reporting and withholding (including "backup" withholding) requirements
imposed by applicable tax laws, regulations or administrative practice with
respect to (i) any payments made with respect to the Securities or (ii) the
issuance, delivery, holding, transfer, redemption or exercise of rights
under the Securities. Such compliance shall include, without limitation,
the preparation and timely filing of required returns and the timely
payment of all amounts required to be withheld to the appropriate taxing
authority or its designated agent.
(b) The Agent shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 7.01(a)(2) hereof.
(c) The Agent shall maintain all appropriate records
documenting compliance with such requirements, and shall make such records
available, on written request, to the Company or to its authorized
representative within a reasonable period of time after receipt of such
request.
ARTICLE 8
Supplemental Agreements
Section 8.01. Supplemental Agreements Without Consent of
Holders.
Without the consent of any Holders, the Company and the Agent,
at any time and from time to time, may enter into one or more agreements
supplemental hereto, in form satisfactory to the Company and the Agent, for
any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants of the Company herein and in the Security
Certificates; or
(2) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein
conferred upon the Company; or
(3) to evidence and provide for the acceptance of
appointment hereunder by a successor Agent; or
(4) to make provision with respect to the rights of Holders
pursuant to the requirements of Section 5.06(b); or
(5) except as provided for in Section 5.06, 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.
Section 8.02. Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% of the
Outstanding Securities, 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 Securities, or the
provisions of this Agreement or the rights of the Holders in respect of the
Securities; provided, however, that 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 type of Treasury Notes underlying
a Security, impair the right of the Holder of any Security to
receive interest payments on the underlying Treasury Notes or
otherwise adversely affect the Holder's rights in or to such
Treasury Notes;
(3) reduce any Yield Enhancement Payment or any Deferred
Yield Enhancement Payment, or change any place where, or the
coin or currency in which, any Yield Enhancement Payment is
payable;
(4) impair the right to institute suit for the enforcement
of any Purchase Contract;
(5) reduce the number of shares of Common Stock to be
purchased pursuant to any Purchase Contract, increase the
price to purchase shares of Common Stock upon settlement of
any Purchase Contract, change the Final Settlement Date or
otherwise adversely affect the Holder's rights under any
Purchase Contract; or
(6) reduce the percentage of the Outstanding Securities the
consent of whose Holders is required for any such supplemental
agreement.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental agreement,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 8.03. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by,
any supplemental agreement permitted by this Article or the modifications
thereby of the agencies created by this Agreement, the Agent shall be entitled
to receive and (subject to Section 7.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
agreement is authorized or permitted by this Agreement. The Agent may, but
shall not be obligated to, enter into any such supplemental agreement which
affects the Agent's own rights, duties or immunities under this Agreement or
otherwise.
Section 8.04. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this
Article, this Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Agreement for all purposes;
and every Holder of Security Certificates theretofore or thereafter
authenticated, executed on behalf of the Holders and delivered hereunder shall
be bound thereby.
Section 8.05. Reference to Supplemental Agreements.
Security Certificates authenticated, executed on behalf of the
Holders and delivered after the execution of any supplemental agreement
pursuant to this Article may, and shall if required by the Agent, bear a
notation in form approved by the Agent as to any matter provided for in such
supplemental agreement. If the Company shall so determine, new Security
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 Security Certificates.
ARTICLE 9
Consolidation, Merger, Sale or Conveyance
Section 9.01. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions.
The Company covenants that it will not merge or consolidate
with any other Person or sell, assign, transfer, lease or convey all or
substantially all of its properties and assets to any Person or group of
affiliated Persons in one transaction or a series of related transactions,
unless (i) either the Company shall be the continuing corporation, or the
successor (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof or
the District of Columbia and such corporation shall expressly assume all the
obligations of the Company under the Purchase Contracts, this Agreement and
the Pledge Agreement by one or more supplemental agreements in form
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 in the performance of any covenant or condition
hereunder, under any of the Securities or under the Pledge Agreement.
Section 9.02. Rights and Duties For Successor Corporation.
In case of any such consolidation, merger, sale, assignment,
transfer, lease or conveyance and upon any such assumption by the successor
corporation in accordance with Section 9.01, such successor corporation shall
succeed to and be substituted for the Company with the same effect as if it
had been named herein as the Company. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of The
AES Corporation, any or all of the Security 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 Security Certificates which
previously shall have been signed and delivered by the officers of the Company
to the Agent for authentication and execution, and any Security Certificate
evidencing Securities which such successor corporation thereafter shall cause
to be signed and delivered to the Agent for that purpose. All the Security
Certificates so issued shall in all respects have the same legal rank and
benefit under this Agreement as the Security Certificates theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Security 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 Security Certificates evidencing Securities
thereafter to be issued as may be appropriate.
Section 9.03. Opinion of Counsel to Agent.
The Agent, subject to Sections 7.01 and 7.03, shall receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, assignment, transfer, lease or conveyance, and any such assumption,
complies with the provisions of this Article and that all conditions precedent
to the consummation of any such consolidation, merger, sale, assignment,
transfer, lease or conveyance have been met.
ARTICLE 10
Covenants
Section 10.01. Performance under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders
from time to time of the Securities that it will duly and punctually perform
its obligations under the Purchase Contracts in accordance with the terms of
the Purchase Contracts and this Agreement.
Section 10.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City
of New York an office or agency where Security Certificates may be
presented or surrendered for acquisition of shares of Common Stock upon
settlement or Early Settlement and for transfer of Treasury Notes upon
occurrence of a Termination Event, where Security Certificates may be
surrendered for registration of transfer or exchange 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 Security 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 as the place of payment for
the Securities the Corporate Trust Office and appoints the Agent at its
Corporate Trust Office as paying agent in such city.
Section 10.03. Company to Reserve Common Stock.
The Company shall at all times prior to the Final 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 (x) against tender of payment in respect of all Purchase Contracts
constituting a part of the Securities evidenced by Outstanding Security
Certificates and (y) in payment of Deferred Yield Enhancement Payments, if
any, owed by the Company to the Holders.
Section 10.04. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may
be issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities and in payment of any
Deferred Yield Enhancement Payments will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable.
Section 10.05. Statements of Officers of the Company as
Default.
The Company will deliver to the Agent, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions hereof, and if the Company shall
be in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
THE AES CORPORATION
Attested by
________________________________ By: ________________________________
________________________________
Attested by
________________________________ By: ________________________________
EXHIBIT A
THE AES CORPORATION
_____% PREFERRED REDEEMABLE INCREASED
DIVIDEND EQUITY SECURITIES
(STATED AMOUNT $__________ PER SECURITY)
No. Securities
This Security Certificate certifies that ____________________
is the registered Holder of the number of Securities set forth above. Each
Security represents (i) ownership by the Holder of _____% United States
Treasury Notes due __________, _____ ("Treasury Notes") with a principal
amount equal to the Stated Amount, subject to the Pledge of such Treasury
Notes by such Holder pursuant to the Pledge Agreement, and (ii) the rights and
obligations of the Holder under one Purchase Contract with The AES
Corporation, a Delaware corporation (the "Company"). [The Treasury Notes
represented by this Security Certificate were acquired by the Underwriters on
behalf of the Company with the proceeds of the offering of this Security
Certificate and are being conveyed to the Holder of this Certificate and
pledged pursuant to the Pledge Agreement simultaneously therewith.]
Pursuant to the Pledge Agreement, the Treasury Notes
constituting part of each Security evidenced hereby have been pledged to the
Collateral Agent to secure the obligations of the Holder under the Purchase
Contract constituting part of such Security.
The Pledge Agreement provides that all payments of principal
of, or interest on, any Treasury Notes constituting part of the Securities
received by the Collateral Agent shall be paid by the Collateral Agent by wire
transfer in same day funds no later than 1:00 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 1:00 p.m., New York City time, on a Business Day,
then such payment shall be made no later than 10:00 a.m., New York City time,
on the next succeeding Business Day) (i) in the case of (A) interest payments
and (B) any principal payments with respect to any Treasury Notes that have
been released from the Pledge pursuant to the Pledge Agreement, to the Agent
to the account designated by it for such purpose and (ii) in the case of
principal payments on any Pledged Treasury Notes (as defined in the Pledge
Agreement), at the direction of the Agent on behalf of the Holders, to the
Company, in full satisfaction of the respective obligations of the Holders of
the Securities of which such Pledged Treasury Securities are a part under the
Purchase Contracts forming a part of such Securities. Interest on any Treasury
Note forming part of a Security evidenced hereby which is paid on any or
__________, commencing __________, _____ (a "Payment Date"), shall, subject to
receipt thereof by the Agent from the Collateral Agent, be paid to the Person
in whose name this Security Certificate (or a Predecessor Security
Certificate) is registered at the close of business on the Record Date next
preceding such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of
this Security Certificate to purchase, and the Company to sell, on __________,
_____ (the "Final Settlement Date"), at a price equal to $__________ (the
"Stated Amount"), a number of shares of Common Stock, par value $.01 per share
("Common Stock"), of the Company, equal to the Settlement Rate, unless on or
prior to the Final Settlement Date there shall have occurred a Termination
Event or Early Settlement with respect to the Security 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 for the shares
of Common Stock purchased pursuant to each Purchase Contract evidenced hereby,
if not paid earlier, shall be paid on the Final Settlement Date by application
of payment received in respect of the principal of the Treasury Notes pledged
to secure the obligations under such Purchase Contract of the Holder of the
Security of which such Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of a Security evidenced hereby an amount (the
"Yield Enhancement Payment") equal to _____% per annum of the Stated Amount
from _______________, _____, computed on the basis of the actual number of
days elapsed in a year of 365 or 366 days, as the case may be, subject to
deferral at the option of the Company as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof; except that on the
initial Payment Date the Yield Enhancement Payment shall be reduced by an
amount equal to accrued interest to _______________, _____, on the Treasury
Note constituting a part of this Security. Such Yield Enhancement Payment
shall be payable to the Person in whose name this Security Certificate (or a
Predecessor Security Certificate) is registered at the close of business on
the Record Date next preceding such Payment Date.
Interest on the Treasury Notes and the Yield Enhancement
Payment will be payable at the office of the Agent in The City of New York or,
at the option of the Company, by check mailed to the address of the Person
entitled thereto as such address appears on the Security 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 Security 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.
THE AES CORPORATION
By: ____________________________________
Attested:
_______________________________
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase
Contracts evidenced hereby)
By: ____________________________________,
not individually but solely as
Attorney-in-Fact of such Holder
By: ____________________________________
Dated:
This is one of the Security Certificates referred to in the
within mentioned Purchase Contract Agreement.
_______________, as Agent
By:________________________________
(Form of Reverse of Security Certificate)
Each Purchase Contract evidenced hereby is governed by a
Purchase Contract Agreement, dated as of _______________, _____ (the "Purchase
Contract Agreement"), between the Company and ____________________, as
Purchase Contract Agent (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 Security Certificates are,
and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of
this Security Certificate to purchase, and the Company to sell, on the Final
Settlement Date at a price equal to the Stated Amount, a number of shares of
Common Stock of the Company equal to the Settlement Rate, unless, on or prior
to the Final 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 greater than $________ (the "Threshold
Appreciation Price"), ________ of a share of Common Stock per Purchase
Contract, (b) if the Applicable Market Value is less than or equal to the
Threshold Appreciation Price but is greater than the Stated Amount, a
fractional share of Common Stock per Purchase Contract equal to the Stated
Amount divided by the Applicable Market Value and (c) if the Applicable Market
Amount is less than or equal to the Stated Amount, one share of Common Stock
per Purchase Contract, in each case subject to adjustment as provided in the
Purchase Contract. No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, as provided in the Purchase Contract
Agreement.
The "Applicable Market Value" means the average of the Closing
Prices per share of Common Stock on each of the twenty consecutive Trading Days
ending on the second Trading Day immediately preceding the Final Settlement
Date. The "Closing Price" of the Common Stock on any date of determination
means the closing sale price (or, if no closing price is reported, the last
reported sale price) of the Common Stock on the New York Stock Exchange (the
"NYSE") on such date or, if the Common Stock is not listed for trading on the
NYSE on any such date, as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, or if the Common Stock is not so listed on a United States national or
regional securities exchange, as reported by The Nasdaq Stock Market, or, if
the Common Stock is not so reported, the last quoted bid price for the Common
Stock in the over-the-counter market as reported by the National Quotation
Bureau or similar organization, or, if such bid price is not available, the
market value of the Common Stock on such date as determined by a nationally
recognized independent investment banking firm retained for this purpose by
the Company. A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
The purchase price for the shares of Common Stock purchased
pursuant to each Purchase Contract shall be paid by application of payments
received by the Company on the Final Settlement Date from the Collateral Agent
at the direction of the Agent on behalf of the Holders pursuant to the Pledge
Agreement in respect of the principal of the Treasury Notes pledged to secure
the obligations of the relevant Holder under such Purchase Contract.
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.
Subject to the next succeeding paragraph, the Company shall
pay, on each Payment Date, the Yield Enhancement Payment payable in respect of
each Purchase Contract to the Person in whose name the Security Certificate
evidencing such Purchase Contract is registered at the close of business on
the Record Date next preceding such Payment Date. Yield Enhancement Payments
will be payable at the office of the Agent in The City of New York or, at the
option of the Company, by check mailed to the address of the Person entitled
thereto at such address as it appears on the Security Register.
The Company shall have the right, at any time prior to the
Final Settlement Date, to defer the payment of any or all of the Yield
Enhancement 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) as provided in the
Purchase Contract Agreement. Any Yield Enhancement Payments so deferred shall
bear additional Yield Enhancement Payments thereon at the rate of ______% per
annum (computed on the basis of the actual number of days elapsed in a year of
365 or 366 days, as the case may be), compounding on each succeeding Payment
Date, until paid in full (such deferred installments of Yield Enhancement
Payments together with the additional Yield Enhancement Payments accrued
thereon, are referred to herein as the "Deferred Yield Enhancement Payments").
Deferred Yield Enhancement Payments shall be due on the next succeeding
Payment Date except to the extent that payment is deferred pursuant to the
Purchase Contract Agreement. No Yield Enhancement Payments may be deferred to
a date that is after the Final Settlement Date.
In the event that the Company elects to defer the payment of
Yield Enhancement Payments on the Purchase Contracts until the Final
Settlement Date, the Holder of this Security Certificate will receive on the
Final 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 Yield
Enhancement Payments payable to the Holder of the Security Certificate of
Securities divided by (y) the Applicable Market Value. No fractional shares of
Common Stock will be issued with respect to the payment of Deferred Yield
Enhancement Payments on the Final Settlement Date, as provided in the Purchase
Contract Agreement.
In the event the Company exercises its option to defer the
payment of Yield Enhancement Payments, then (a) 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) purchase or acquisitions of shares of Common Stock in
connection with the satisfaction by the Company of its obligations under any
employee benefit plans or the satisfaction by the Company of its obligations
pursuant to any contract or security requiring the Company to purchase shares
of Common Stock, (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 or (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) or make any
guarantee payments with respect to the foregoing), (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by the
Company that rank pari passu with or junior to such Yield Enhancement Payments
and (c) the Company shall not make any guarantee payments with respect to the
foregoing.
The Purchase Contracts and the obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
of the Holders to receive and the obligation of the Company to pay any Yield
Enhancement Payment or any Deferred Yield Enhancement Payments, shall
immediately and automatically terminate, without the necessity of any notice
or action by any Holder, the Agent or the Company, if, on or prior to the
Final Settlement Date, a Termination Event shall have occurred. Upon the
occurrence of a Termination Event, the Company shall promptly but in no event
after two business days thereafter give written notice to the Agent, the
Collateral Agent and to the Holders, at their addresses as they appear in the
Security Register. Upon and after the occurrence of a Termination Event, the
Collateral Agent shall release the Treasury Notes from the Pledge in
accordance with the provisions of the Pledge Agreement. The Securities shall
thereafter represent the right to receive the Treasury Notes forming a part of
such Securities in accordance with the provisions of the Purchase Contract
Agreement and the Pledge Agreement.
Subject to and upon compliance with the provisions of the
Purchase Contract Agreement at the option of the Holder thereof, Purchase
Contracts underlying Securities having an aggregate Stated Amount equal to
$________ or an integral multiple thereof may be settled early ("Early
Settlement") as provided in the Purchase Contract Agreement. In order to
exercise the right to effect Early Settlement with respect to any Purchase
Contracts evidenced by this Security Certificate, the Holder of this Security
Certificate shall deliver this Security Certificate to the Agent at the
Corporate Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early set forth below duly completed and
accompanied by payment in the form of a certified or cashier's check payable
to the order of the Company in immediately available funds in an amount (the
"Early Settlement Amount") equal to (i) the product of (A) the Stated Amount
times (B) the number of Purchase Contracts with respect to which the Holder
has elected to effect Early Settlement, plus (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 sum of (x) the
Yield Enhancement Payments payable on such Payment Date with respect to
such Purchase Contracts plus (y) the interest with respect to the related
Treasury Notes payable on such Payment Date. Upon Early Settlement of
Purchase Contracts by a Holder of the related Securities, the Treasury
Notes underlying such Securities shall be released from the Pledge as
provided in the Pledge Agreement and the Holder shall be entitled to
receive, a number of shares of Common Stock on account of each Purchase
Contract forming part of a Security as to which Early Settlement is
effected equal to the Early Settlement Rate; provided however, that upon
the Early Settlement of the Purchase Contracts, the Holder thereof will
forfeit the right to receive any Deferred Yield Enhancement Payments on
such Purchase Contracts. The Early Settlement Rate shall initially be
equal to __________ and shall be adjusted in the same manner and at the
same time as the Settlement Rate is adjusted as provided in the Purchase
Contract Agreement.
The Security Certificates are issuable only in registered form
and only in denominations of a single Security and any integral multiple
thereof. The transfer of any Security Certificate will be registered and
Security Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Security 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. For so long as the Purchase Contract
underlying a Security remains in effect, such Security shall not be separable
into its constituent parts, and the rights and obligations of the Holder of
such Security in respect of the Treasury Notes and Purchase Contract
constituting such Security may be transferred and exchanged only as a
Security.
Upon registration of transfer of this Security 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 and the Purchase Contracts evidenced hereby and the transferor shall
be released from the obligations under the Purchase Contracts evidenced by
this Security 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 Security Certificate, by his acceptance
hereof, authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Securities 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 his 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 his behalf as his
attorney-in-fact, and consents to the Pledge of the Treasury Notes
underlying this Security Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect of principal of the
Treasury Notes on the Final 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 payments.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of at least
66 2/3% of the Outstanding Securities.
All terms used herein which are defined in the Purchase
Contract Agreement have the meanings set forth therein.
The Purchase Contracts shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the
Company or the Agent may treat the Person in whose name this Security
Certificate is registered as the owner of the Securities evidenced hereby for
the purpose of receiving payments of interest on the Treasury Notes, receiving
payments of Yield Enhancement Payments and any Deferred Yield Enhancement
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.
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after the Final Settlement Date
of the Purchase Contracts underlying the number of Securities evidenced by
this Security 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
If shares are to be registered
in the name of and delivered to REGISTERED HOLDER
a Person other than the Holder,
please print such Person's name
and address:
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 Security 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 Securities evidenced by this Security
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Securities with
an aggregate Stated Amount equal to $__________ 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 Security Certificate representing any Securities 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. Treasury Notes deliverable upon such Early
Settlement will be transferred in accordance with the transfer instructions
set forth below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable
incident thereto.
Dated:_____________________________ ____________________________________
Signature
Number of Securities evidenced hereby as to which Early
Settlement of the related Purchase Contracts is being elected:
If shares are to be registered
in the name of and delivered to REGISTERED HOLDER
a Person other than the Holder,
please print such Person's name
and address:
Please print name and address
of Registered Holder:
____________________________________ ____________________________________
Name Name
____________________________________ ____________________________________
Address Address
____________________________________ ____________________________________
Social Security or other
Taxpayer Identification ____________________________________
Number, if any
____________________________________
Transfer Instructions for Treasury Notes Transferable Upon Early Settlement or
a Termination Event:
__________________________ _________________________________________________
__________________________ _________________________________________________
__________________________ _________________________________________________
