EXHIBIT 4.7
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ALBERTSON'S, INC.
AND
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS PURCHASE CONTRACT AGENT
FORM OF PURCHASE CONTRACT AGREEMENT
DATED AS OF [ ], 2004
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions...................................................................1
Section 1.02. Compliance Certificates and Opinions.........................................14
Section 1.03. Form of Documents Delivered to Purchase Contract Agent.......................15
Section 1.04. Acts of Holders; Record Dates................................................15
Section 1.05. Notices......................................................................16
Section 1.06. Notice to Holders; Waiver....................................................17
Section 1.07. Effect of Headings and Table of Contents.....................................18
Section 1.08. Successors and Assigns.......................................................18
Section 1.09. Separability Clause..........................................................18
Section 1.10. Benefits of Agreement........................................................18
Section 1.11. Governing Law................................................................18
Section 1.12. Legal Holidays...............................................................18
Section 1.13. Counterparts.................................................................19
Section 1.14. Inspection of Agreement......................................................19
Section 1.15. Appointment of Financial Institution as Agent for the Company................19
Section 1.16. No Waiver....................................................................19
ARTICLE 2
CERTIFICATE FORMS
Section 2.01. Forms of Certificates Generally..............................................19
Section 2.02. Form of Purchase Contract Agent's Certificate of Authentication..............20
ARTICLE 3
THE UNITS
Section 3.01. Amount; Form and Denominations...............................................21
Section 3.02. Rights and Obligations Evidenced by the Certificates.........................21
Section 3.03. Execution, Authentication, Delivery and Dating...............................22
Section 3.04. Temporary Certificates.......................................................22
Section 3.05. Registration; Registration of Transfer and Exchange..........................23
Section 3.06. Book-Entry Interests.........................................................24
Section 3.07. Notices to Holders...........................................................25
Section 3.08. Appointment of Successor Depositary..........................................25
Section 3.09. Definitive Certificates......................................................25
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Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates...........................26
Section 3.11. Persons Deemed Owners........................................................27
Section 3.12. Cancellation.................................................................28
Section 3.13. Creation of Treasury Units by Substitution of Treasury Securities............28
Section 3.14. Recreation of Corporate Units................................................30
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event..................31
Section 3.16. No Consent to Assumption.....................................................32
ARTICLE 4
THE SENIOR NOTES AND APPLICABLE OWNERSHIP
INTERESTS IN THE TREASURY PORTFOLIO
Section 4.01. Interest Payments; Rights to Interest Payments Preserved.....................32
Section 4.02. Notice and Voting............................................................34
Section 4.03. Special Event Redemption.....................................................34
ARTICLE 5
THE PURCHASE CONTRACTS
Section 5.01. Purchase of Shares of Common Stock...........................................35
Section 5.02. Remarketing; Payment of Purchase Price.......................................38
Section 5.03. Issuance of Shares of Common Stock...........................................45
Section 5.04. Adjustment of Settlement Rate................................................45
Section 5.05. Notice of Adjustments and Certain Other Events...............................53
Section 5.06. Termination Event; Notice....................................................54
Section 5.07. Early Settlement.............................................................55
Section 5.08. Intentionally Omitted........................................................57
Section 5.09. No Fractional Shares.........................................................57
Section 5.10. Charges and Taxes............................................................57
Section 5.11. Contract Adjustment Payments.................................................58
ARTICLE 6
REMEDIES
Section 6.01. Unconditional Right of Holders to Receive Contract Adjustment Payments
and to Purchase Shares of Common Stock.......................................63
Section 6.02. Restoration of Rights and Remedies...........................................63
Section 6.03. Rights and Remedies Cumulative...............................................63
Section 6.04. Delay or Omission Not Waiver.................................................64
Section 6.05. Undertaking for Costs........................................................64
Section 6.06. Waiver of Stay or Extension Laws.............................................64
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ARTICLE 7
THE PURCHASE CONTRACT AGENT
Section 7.01. Certain Duties and Responsibilities..........................................64
Section 7.02. Notice of Default............................................................65
Section 7.03. Certain Rights of Purchase Contract Agent....................................66
Section 7.04. Not Responsible for Recitals or Issuance of Units............................67
Section 7.05. May Hold Units...............................................................67
Section 7.06. Money Held in Custody........................................................68
Section 7.07. Compensation and Reimbursement...............................................68
Section 7.08. Corporate Purchase Contract Agent Required, Eligibility......................69
Section 7.09. Resignation and Removal; Appointment of Successor............................69
Section 7.10. Acceptance of Appointment by Successor.......................................70
Section 7.11. Merger, Conversion, Consolidation or Succession to Business..................71
Section 7.12. Preservation of Information; Communications to Holders.......................71
Section 7.13. No Obligations of Purchase Contract Agent....................................71
Section 7.14. Tax Compliance...............................................................72
ARTICLE 8
SUPPLEMENTAL AGREEMENTS
Section 8.01. Supplemental Agreements Without Consent of Holders...........................72
Section 8.02. Supplemental Agreements with Consent of Holders..............................73
Section 8.03. Execution of Supplemental Agreements.........................................74
Section 8.04. Effect of Supplemental Agreements............................................74
Section 8.05. Reference to Supplemental Agreements.........................................74
ARTICLE 9
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 9.01. Covenant Not to Consolidate, Merge, Convey, Transfer or Lease Property
Except under Certain Conditions..............................................75
Section 9.02. Rights and Duties of Successor Corporation...................................75
Section 9.03. Officers' Certificate and Opinion of Counsel Given to Purchase Contract
Agent........................................................................76
ARTICLE 10
COVENANTS
Section 10.01. Performance Under Purchase Contracts.........................................76
Section 10.02. Maintenance of Office or Agency..............................................76
Section 10.03. Company to Reserve Common Stock..............................................77
Section 10.04. Covenants as to Common Stock.................................................77
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Section 10.05. Statements of Officers of the Company as to Default..........................77
Section 10.06. ERISA........................................................................77
Section 10.07. Tax Treatment................................................................77
Exhibit A -- Form of Corporate Units Certificate
Exhibit B -- Form of Treasury Units Certificate
Exhibit C -- Instruction to Purchase Contract Agent
Exhibit D -- Notice from Purchase Contract Agent to Holders
Exhibit E -- Notice to Settle by Cash
Exhibit F -- Notice from Purchase Contract Agent to Collateral Agent
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PURCHASE CONTRACT AGREEMENT, dated as of [ ], 2004,
between ALBERTSON'S, INC., a Delaware corporation (the "COMPANY"), and U.S. BANK
TRUST NATIONAL ASSOCIATION, a national banking association, acting as purchase
contract agent for the Holders of Units (as defined herein) from time to time
(the "PURCHASE CONTRACT AGENT").
RECITALS
The Company has duly authorized the execution and delivery of
this Agreement and the Certificates evidencing the Units.
All things necessary to make the Purchase Contracts (as
defined herein), when the Certificates (as defined herein) are executed by the
Company and authenticated, executed on behalf of the Holders and delivered by
the Purchase Contract Agent, as provided in this Agreement, the valid
obligations of the Company, and to constitute these presents a valid agreement
of the Company, in accordance with its terms, have been done. For and in
consideration of the premises and the purchase of the Units by the Holders
thereof, it is mutually agreed as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01.Definitions.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular, and nouns and pronouns of the masculine gender include the
feminine and neuter genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section, Exhibit or other subdivision; and
(d) the following terms have the meanings given to them in
this Section 1.01(d):
"ACCOUNTING EVENT" has the meaning set forth in the
Supplemental Indenture.
"ACT" has the meaning, with respect to any Holder, set forth
in Section 1.04(a).
"ADJUSTED APPLICABLE MARKET VALUE" has the meaning set forth
in Section 5.01(a).
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"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGREEMENT" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
agreements supplemental hereto entered into pursuant to the applicable
provisions hereof.
"APPLICABLE MARKET VALUE" has the meaning set forth in Section
5.01(a).
"APPLICABLE OWNERSHIP INTEREST" shall mean, with respect to a
Corporate Unit and any Treasury Portfolio contained in a Corporate
Unit, (i) a 1/40, or 2.5%, undivided beneficial ownership interest in
$1,000 face amount of U.S. treasury securities (or principal or
interest strips thereof) included in such Treasury Portfolio that
mature on or prior to May 15, 2007 and (ii) (x) for the scheduled
Payment Date on the Senior Notes that occurs on the Purchase Contract
Settlement Date, in the case of a Successful Remarketing prior to the
Final Remarketing Date, or (y) for each scheduled Payment Date on the
Senior Notes that occurs after the Special Event Redemption Date to and
including the Purchase Contract Settlement Date, in the case of a
Special Event Redemption, a [ ]% undivided beneficial ownership
interest in $1,000 face amount of U.S. treasury securities (or
principal or interest strips thereof) included in such Treasury
Portfolio that mature on or prior to the business day immediately
preceding such scheduled Payment Date.
"APPLICABLE PRINCIPAL AMOUNT" means the aggregate principal
amount of the Senior Notes that are components of Corporate Units.
"APPLICANTS" has the meaning set forth in Section 7.12(b).
"BANKRUPTCY CODE" means Title 11 of the United States Code, or
any other law of the United States that from time to time provides a
uniform system of bankruptcy laws.
"BENEFICIAL OWNER" means, with respect to a Book-Entry
Interest, a Person who is the beneficial owner of such Book-Entry
Interest as reflected on the books of the Depositary or on the books of
a Person maintaining an account with such Depositary (directly as a
Depositary Participant or as an indirect participant, in each case in
accordance with the rules of such Depositary).
"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
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Company, to have been duly adopted by the Board of Directors and to be
in full force and effect on the date of such certification and
delivered to the Purchase Contract Agent.
"BOOK-ENTRY INTEREST" means a beneficial interest in a Global
Certificate, registered in the name of a Depositary or a nominee
thereof, ownership and transfers of which shall be maintained and made
through book entries by such Depositary as described in Section 3.06.
"BUSINESS DAY" or "BUSINESS DAY" means any day other than a
Saturday or Sunday or any other day on which banking institutions and
trust companies in New York City, New York are permitted or required by
applicable law to remain closed or a day on which the Indenture Trustee
or the Collateral Agent is closed for business; provided that for
purposes of the second paragraph of Section 1.12 only, the term
"Business Day" shall also be deemed to exclude any day on which DTC is
closed.
"CASH MERGER" has the meaning set forth in Section
5.04(b)(ii).
"CASH MERGER EARLY SETTLEMENT" has the meaning set forth in
Section 5.04(b)(ii).
"CASH MERGER EARLY SETTLEMENT DATE" has the meaning set forth
in Section 5.04(b)(ii).
"CASH SETTLEMENT" has the meaning set forth in Section
5.02(b)(i).
"CERTIFICATE" means a Corporate Units Certificate or a
Treasury Units Certificate.
"CLOSING PRICE" has the meaning set forth in Section 5.01(a).
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" has the meaning set forth in Section 1.01(d) of
the Pledge Agreement.
"COLLATERAL ACCOUNT" has the meaning set forth in Section
1.01(d) of the Pledge Agreement.
"COLLATERAL AGENT" means U.S. Bank Trust National Association,
as Collateral Agent under the Pledge Agreement until a successor
Collateral Agent shall have become such pursuant to the applicable
provisions of the Pledge Agreement, and thereafter "Collateral Agent"
shall mean the Person who is then the Collateral Agent thereunder.
"COLLATERAL SUBSTITUTION" means (i) with respect to a
Corporate Unit, (x) the substitution for the Pledged Senior Note
included in such Corporate Unit by Treasury Securities or portions
thereof in an aggregate principal amount at maturity equal to the
aggregate principal amount of such Pledged Senior Note, or (y) the
substitution for the Pledged Applicable Ownership Interest in the
Treasury Portfolio included in such Corporate Unit by Treasury
Securities or portions thereof in an amount equal to such
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Pledged Applicable Ownership Interest in the Treasury Portfolio, or
(ii) with respect to a Treasury Unit, (x) the substitution for the
Pledged Treasury Securities included in such Treasury Unit (if the
Applicable Ownership Interest in the Treasury Portfolio has not
replaced the Senior Note as a component of the Corporate Unit) by
Senior Notes in an aggregate principal amount equal to the aggregate
principal amount at stated maturity of the Pledged Treasury Securities,
or (y) the substitution for the Pledged Treasury Securities included in
such Treasury Unit (if the Applicable Ownership Interest in the
Treasury Portfolio has replaced the Senior Note as a component of the
Corporate Unit) by the appropriate Applicable Ownership Interest in the
Treasury Portfolio.
"COMMON STOCK" means the common stock, par value $1.00 per
share, of the Company.
"COMPANY" means the Person named as the "COMPANY" in the first
paragraph of this instrument until a successor shall have become such
pursuant to the applicable provision of this Agreement, and thereafter
"Company" shall mean such successor.
"CONSTITUENT PERSON" has the meaning set forth in Section
5.04(b)(i).
"CONTRACT ADJUSTMENT PAYMENTS" means the payments payable by
the Company on the Payment Dates in respect of each Purchase Contract,
at a rate per year of [ ]% of the Stated Amount per Purchase Contract.
"CORPORATE TRUST OFFICE" means the office of the Purchase
Contract Agent at which, at any particular time, its corporate trust
business shall be principally administered, which office at the date
hereof is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
[provided, however, for purposes of Section 10.02 only, the Corporate
Trust Office shall be located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000].
"CORPORATE UNIT" means the collective rights and obligations
of a Holder of a Corporate Units Certificate in respect of a 1/40
undivided beneficial interest in a Senior Note or an appropriate
Applicable Ownership Interest in the Treasury Portfolio, as the case
may be, subject in each case (except for the appropriate Applicable
Ownership Interest specified in clause (ii) of the definition of such
term) to the Pledge thereof, and the related Purchase Contract.
"CORPORATE UNITS CERTIFICATE" means a certificate evidencing
the rights and obligations of a Holder in respect of the number of
Corporate Units specified on such certificate.
"COUPON RATE" means the percentage rate per annum at which
each Senior Note will bear interest initially.
"CURRENT MARKET PRICE" has the meaning set forth in Section
5.04(a)(viii).
"CUSTODIAL AGENT" means U.S. Bank Trust National Association,
as Custodial Agent under the Pledge Agreement until a successor
Custodial Agent shall have become
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such pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Custodial Agent" shall mean the Person who is then the
Custodial Agent thereunder.
"DEPOSITARY" means a clearing agency registered under Section
17A of the Exchange Act that is designated to act as Depositary for the
Units as contemplated by Sections 3.06 and 3.08.
"DEPOSITARY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the
Depositary effects book-entry transfers and pledges of securities
deposited with the Depositary.
"DIVIDEND THRESHOLD AMOUNT" has the meaning set forth in
Section 5.04(a).
"DTC" means The Depository Trust Company.
"EARLY SETTLEMENT" has the meaning set forth in Section
5.07(a).
"EARLY SETTLEMENT AMOUNT" has the meaning set forth in Section
5.07(b).
"EARLY SETTLEMENT DATE" has the meaning set forth in Section
5.07(b).
"EARLY SETTLEMENT RATE" has the meaning set forth in Section
5.07(c).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to
time, and the rules and regulations promulgated thereunder.
"EXPIRATION DATE" has the meaning set forth in Section
1.04(e).
"EXPIRATION TIME" has the meaning set forth in Section
5.04(a)(vi).
"FAILED FINAL REMARKETING" has the meaning set forth in
Section 5.02(c)(iii).
"FAILED INITIAL REMARKETING" has the meaning set forth in
Section 5.02(a)(i).
"FAILED REMARKETING" shall mean a Failed Initial Remarketing
or a Failed Final Remarketing.
"FINAL REMARKETING" has the meaning set forth in Section
5.02(c)(i).
"FINAL REMARKETING DATE" means the third Business Day
immediately preceding the Purchase Contract Settlement Date.
"FINAL REMARKETING FEE" has the meaning set forth in Section
5.02(c)(ii).
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"FIXED SETTLEMENT RATE" means each of the Maximum Share Number
and the Minimum Share Number.
"GLOBAL CERTIFICATE" means a Certificate that evidences all or
part of the Units and is registered in the name of the Depositary or a
nominee thereof.
"HOLDER" means, with respect to a Unit, the Person in whose
name the Unit evidenced by a Certificate is registered in the Security
Register; provided, however, that solely for the purpose of determining
whether the Holders of the requisite number of Units have voted on any
matter (and not for any other purpose hereunder), if the Unit remains
in the form of one or more Global Certificates and if the Depositary
that is the registered holder of such Global Certificate has sent an
omnibus proxy assigning voting rights to the Depositary Participants to
whose accounts the Units are credited on the record date, the term
"Holder" shall mean such Depositary Participant acting at the direction
of the Beneficial Owners.
"INDEMNITEES" has the meaning set forth in Section 7.07(c).
"INDENTURE" means the Indenture, dated as of May 1, 1992,
between the Company and the Indenture Trustee (including any provisions
of the TIA that are deemed incorporated therein), as supplemented by
the Supplemental Indenture pursuant to which the Senior Notes will be
issued.
"INDENTURE TRUSTEE" means U.S. Bank Trust National
Association, as trustee under the Indenture, or any successor thereto.
"INITIAL REMARKETING" has the meaning set forth in Section
5.02(a)(i).
"INITIAL REMARKETING DATE" means the third Business Day
immediately preceding February 16, 2007.
"ISSUER ORDER" or "ISSUER REQUEST" means a written order or
request signed in the name of the Company by (i) either its Chief
Executive Officer, its President or one of its Vice Presidents, and
(ii) either its Corporate Secretary or one of its Assistant Corporate
Secretaries or its Treasurer or one of its Assistant Treasurers, and
delivered to the Purchase Contract Agent.
"MAXIMUM SHARE NUMBER" has the meaning set forth in Section
5.01(a)(iii).
"MINIMUM SHARE NUMBER" has the meaning set forth in Section
5.01(a)(i).
"NON-ELECTING SHARE" has the meaning set forth in Section
5.04(b)(i).
"NYSE" has the meaning set forth in Section 5.01(a).
"OFFICERS' CERTIFICATE" means a certificate signed by (i)
either the Company's Chief Executive Officer, its President or one of
its Vice Presidents, and (ii) either the Company's Corporate Secretary
or one of its Assistant Corporate Secretaries or its
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Treasurer or one of its Assistant Treasurers, and delivered to the
Purchase Contract Agent.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel to the Company (and who may be an employee of the
Company), and who shall be reasonably acceptable to the Purchase
Contract Agent. An Opinion of Counsel may rely on certificates as to
matters of fact.
"OUTSTANDING UNITS" means, with respect to any Unit and as of
the date of determination, all Units evidenced by Certificates
theretofore authenticated, executed and delivered under this Agreement,
except:
(i) if a Termination Event has occurred, (x)
Corporate Units for which the underlying Senior Notes or
Applicable Ownership Interests in the Treasury Portfolio have
been theretofore deposited with the Purchase Contract Agent in
trust for the Holders of such Corporate Units and (y) Treasury
Units;
(ii) Units evidenced by Certificates theretofore
cancelled by the Purchase Contract Agent or delivered to the
Purchase Contract Agent for cancellation or deemed cancelled
pursuant to the provisions of this Agreement; and
(iii) Units evidenced by Certificates in exchange for
or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered
pursuant to this Agreement, other than any such Certificate in
respect of which there shall have been presented to the
Purchase Contract Agent proof satisfactory to it that such
Certificate is held by a protected purchaser in whose hands
the Units evidenced by such Certificate are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the
requisite number of the Units have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Units
owned by the Company or any Affiliate of the Company shall be
disregarded and deemed not to be Outstanding Units, except that, in
determining whether the Purchase Contract Agent shall be authorized and
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Units that a Responsible
Officer of the Purchase Contract Agent actually knows to be so owned
shall be so disregarded. Units so owned that have been pledged in good
faith may be regarded as Outstanding Units if the pledgee establishes
to the satisfaction of the Purchase Contract Agent the pledgee's right
so to act with respect to such Units and that the pledgee is not the
Company or any Affiliate of the Company.
"PAYMENT DATE" means each February 16, May 16, August 16 and
November 16 of each year, commencing August 16, 2004.
"PERMITTED INVESTMENTS" has the meaning set forth in Section
1.01(d) of the Pledge Agreement.
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"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision
thereof or any other entity of whatever nature.
"PLAN" means an employee benefit plan that is subject to
ERISA, a plan or individual retirement account that is subject to
Section 4975 of the Code or any entity whose assets are considered
assets of any such plan.
"PLEDGE" means the pledge under the Pledge Agreement of the
Senior Notes, the Treasury Securities or the appropriate Applicable
Ownership Interest (as specified in clause (i) of the definition of
such term) in the Treasury Portfolio, as the case may be, in each case
constituting a part of the Units (it being understood that the
appropriate Applicable Ownership Interest (as specified in clause (ii)
of the definition of such term) in the Treasury Portfolio shall not be
subject to the Pledge).
"PLEDGE AGREEMENT" means the Pledge Agreement, dated as of [
], 2004, among the Company, the Collateral Agent, the Custodial Agent,
the Securities Intermediary and the Purchase Contract Agent, on its own
behalf and as attorney-in-fact for the Holders from time to time of the
Units, as amended from time to time.
"PLEDGED APPLICABLE OWNERSHIP INTERESTS" has the meaning set
forth in Section 1.01(d) of the Pledge Agreement.
"PLEDGED SENIOR NOTES" has the meaning set forth in Section
1.01(d) of the Pledge Agreement.
"PLEDGED TREASURY SECURITIES" has the meaning set forth in
Section 1.01(d) of the Pledge Agreement.
"PREDECESSOR CERTIFICATE" means a Predecessor Corporate Units
Certificate or a Predecessor Treasury Units Certificate.
"PREDECESSOR CORPORATE UNITS CERTIFICATE" of any particular
Corporate Units Certificate means every previous Corporate Units
Certificate evidencing all or a portion of the rights and obligations
of the Company and the Holder under the Corporate Units evidenced
thereby; and, for the purposes of this definition, any Corporate Units
Certificate authenticated and delivered under Section 3.10 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Corporate
Units Certificate shall be deemed to evidence the same rights and
obligations of the Company and the Holder as the mutilated, destroyed,
lost or stolen Corporate Units Certificate.
"PREDECESSOR TREASURY UNITS CERTIFICATE" of any particular
Treasury Units Certificate means every previous Treasury Units
Certificate evidencing all or a portion of the rights and obligations
of the Company and the Holder under the Treasury Units evidenced
thereby; and, for the purposes of this definition, any Treasury Units
Certificate authenticated and delivered under Section 3.10 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Treasury Units
Certificate shall be deemed to evidence the same
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rights and obligations of the Company and the Holder as the mutilated,
destroyed, lost or stolen Treasury Units Certificate.
"PRIMARY TREASURY DEALER" shall mean a primary U.S. government
securities dealer.
"PROCEEDS" has the meaning set forth in Section 1.01(d) of the
Pledge Agreement.
"PROSPECTUS" means the prospectus relating to the delivery of
shares or any securities in connection with an Early Settlement
pursuant to Section 5.07 or a Cash Merger Early Settlement of Purchase
Contracts pursuant to Section 5.04(b)(ii), in the form in which first
filed, or transmitted for filing, with the Securities and Exchange
Commission after the effective date of the Registration Statement
pursuant to Rule 424(b) under the Securities Act, including the
documents incorporated by reference therein as of the date of such
Prospectus.
"PURCHASE CONTRACT" means, with respect to any Unit, the
contract forming a part of such Unit and obligating the Company to (i)
sell, and the Holder of such Unit to purchase, shares of Common Stock
and (ii) pay the Holder thereof Contract Adjustment Payments, in each
case on the terms and subject to the conditions set forth in Article 5
hereof.
"PURCHASE CONTRACT AGENT" means the Person named as the
"Purchase Contract Agent" in the first paragraph of this Agreement
until a successor Purchase Contract Agent shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter
"Purchase Contract Agent" shall mean such Person or any subsequent
successor who is appointed pursuant to this Agreement.
"PURCHASE CONTRACT SETTLEMENT DATE" means May 16, 2007.
"PURCHASE CONTRACT SETTLEMENT FUND" has the meaning set forth
in Section 5.03.
"PURCHASE PRICE" has the meaning set forth in Section 5.01(a).
"PURCHASED SHARES" has the meaning set forth in Section
5.04(a)(vi).
"PUT RIGHT" has the meaning set forth in Section 8.05 of the
Supplemental Indenture.
"QUOTATION AGENT" means any Primary Treasury Dealer selected
by the Company.
"RECORD DATE" for any distribution and Contract Adjustment
Payment payable on any Payment Date means, as to any Global Certificate
or any other Certificate, the first business day of the calendar month
in which the relevant Payment Date falls; provided that the Company
may, at its option, select any other day as the Record Date for any
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Payment Date so long as such Record Date selected is more than one
Business Day but less than 60 Business Days prior to such Payment Date.
"REDEMPTION AMOUNT" has the meaning set forth in Section
1.02(e) of the Supplemental Indenture.
"REDEMPTION PRICE" has the meaning set forth in Section
1.02(e) of the Supplemental Indenture.
"REFERENCE DEALER" means a dealer engaged in trading of
convertible securities.
"REFERENCE PRICE" has the meaning set forth in Section
5.01(a)(ii).
"REGISTRATION STATEMENT" means a registration statement under
the Securities Act prepared by the Company covering, inter alia, the
delivery by the Company of any securities in connection with an Early
Settlement on the Early Settlement Date or a Cash Merger Early
Settlement of Purchase Contracts on the Cash Merger Early Settlement
Date under Section 5.04(b)(ii), including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in such
registration statement, and any post-effective amendments thereto.
"REMARKETING" means the remarketing of the Senior Notes by the
Remarketing Agent pursuant to the Remarketing Agreement.
"REMARKETING AGENT" has the meaning set forth in the
Remarketing Agreement.
"REMARKETING AGREEMENT" means the Remarketing Agreement, dated
as of [ ], 2004 among the Company, the Remarketing Agent, and the
Purchase Contract Agent, as amended from time to time.
"REMARKETING DATE" means the Initial Remarketing Date or the
Final Remarketing Date.
"REMARKETING FEE" has the meaning set forth in Section
5.02(a)(i).
"REMARKETING PER SENIOR NOTE PRICE" means the Treasury
Portfolio Purchase Price divided by the number of Senior Notes held as
components of Corporate Units and remarketed in the Initial Remarketing
or the Final Remarketing, as the case may be.
"REORGANIZATION EVENT" has the meaning set forth in Section
5.04(b)(i).
"RESET RATE" has the meaning set forth in Section 1.02(e) of
the Supplemental Indenture.
"RESPONSIBLE OFFICER" shall mean, when used with respect to
the Purchase Contact Agent, any officer within the corporate trust
department of the Purchase Contract Agent, including any vice
president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Purchase Contract
Agent who
10
customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to
whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Purchase
Contract Agreement.
"RIGHTS" has the meaning set forth in Section 5.04(a)(xi).
"RIGHTS AGREEMENT" has the meaning set forth in Section
5.04(a)(xi).
"SECURITIES ACT" means the Securities Act of 1933 and any
statute successor thereto, in each case as amended from time to time,
and the rules and regulations promulgated thereunder.
"SECURITIES INTERMEDIARY" means U.S. Bank Trust National
Association, as Securities Intermediary under the Pledge Agreement
until a successor Securities Intermediary shall have become such
pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Securities Intermediary" shall mean such successor or any
subsequent successor who is appointed pursuant to the Pledge Agreement.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings set forth in Section 3.05.
"SENIOR INDEBTEDNESS" means indebtedness of any kind of the
Company unless the instrument under which such indebtedness is incurred
expressly provides that it is on a parity in right of payment with or
subordinate in right of payment to the Contract Adjustment Payments.
"SENIOR NOTES" means the series of notes designated the senior
notes due 2009 to be issued by the Company under the Indenture.
"SEPARATE SENIOR NOTES" means Senior Notes that are no longer
a component of Corporate Units.
"SEPARATE SENIOR NOTES PURCHASE PRICE" means the amount in
cash equal to the product of the Remarketing Per Senior Note Price
multiplied by the number of Separate Senior Notes remarketed in the
Initial Remarketing.
"SETTLEMENT RATE" has the meaning set forth in Section
5.01(a).
"SPECIAL EVENT" has the meaning set forth in Section 1.02(e)
of the Supplemental Indenture.
"SPECIAL EVENT REDEMPTION" means the redemption of the Senior
Notes pursuant to the Indenture following the occurrence of a Special
Event.
"SPECIAL EVENT REDEMPTION DATE" means the date upon which a
Special Event Redemption is scheduled to occur pursuant to the
Indenture.
11
"STATED AMOUNT" means, with respect to any one Corporate Unit
or Treasury Unit, $25, and, with respect to any one Senior Note,
$1,000.
"SUCCESSFUL FINAL REMARKETING" has the meaning set forth in
Section 5.02(c)(ii).
"SUCCESSFUL INITIAL REMARKETING" has the meaning set forth in
Section 5.02(a)(i).
"SUCCESSFUL REMARKETING" means a Successful Initial
Remarketing or a Successful Final Remarketing.
"SUPPLEMENTAL INDENTURE" means the Supplemental Indenture No.
1 dated as of the date hereof between the Company and the Indenture
Trustee.
"TAX EVENT" has the meaning set forth in Section 1.02(e) of
the Supplemental Indenture.
"TERMINATION DATE" means the date, if any, on which a
Termination Event occurs.
"TERMINATION EVENT" means the occurrence of any of the
following events:
(i) at any time on or prior to the Purchase Contract
Settlement Date, a judgment, decree or court order shall have
been entered granting relief under the Bankruptcy Code,
adjudicating the Company to be insolvent, or approving as
properly filed a petition seeking reorganization or
liquidation of the Company or any other similar applicable
federal or state law and if such judgment, decree or order
shall have been entered more than 60 days prior to the
Purchase Contract Settlement Date, such decree or order shall
have continued undischarged and unstayed for a period of 60
days;
(ii) at any time on or prior to the Purchase Contract
Settlement Date, a judgment, decree or court order for the
appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of the Company or of its property,
or for the termination or liquidation of its affairs, shall
have been entered and if such judgment, decree or order shall
have been entered more than 60 days prior to the Purchase
Contract Settlement Date, such judgment, decree or order shall
have continued undischarged and unstayed for a period of 60
days; or
(iii) at any time on or prior to the Purchase
Contract Settlement Date, the Company shall file a petition
for relief under the Bankruptcy Code, or shall consent to the
filing of a bankruptcy proceeding against it, or shall file a
petition or answer or consent seeking reorganization or
liquidation under the Bankruptcy Code or any other similar
applicable federal or state law, or shall consent to the
filing of any such petition, or shall consent to the
appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of it or of its property, or shall
make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as
they become due.
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"THRESHOLD APPRECIATION PRICE" has the meaning set forth in
Section 5.01(a).
"TIA" means the Trust Indenture Act of 1939, as amended from
time to time, or any successor legislation.
"TRADING DAY" has the meaning set forth in Section 5.01(a).
"TREASURY PORTFOLIO" means a portfolio of (1) U.S. treasury
securities (or principal or interest strips thereof) that mature on or prior to
May 15, 2007 in an aggregate amount at maturity equal to the Applicable
Principal Amount, and (2) (x) in the case of a Successful Remarketing prior to
the Final Remarketing Date, for the scheduled Payment Date on the Senior Notes
that occurs on the Purchase Contract Settlement Date, U.S. treasury securities
(or principal or interest strips thereof) that mature on or prior to May 15,
2007 in an aggregate amount at maturity equal to the aggregate interest payment
(assuming no reset of the interest rate) that would have been due on the
Purchase Contract Settlement Date on the Applicable Principal Amount, and (y) in
the case of a Special Event Redemption, for each scheduled Payment Date that
occurs after the Special Event Redemption Date to and including the Purchase
Contract Settlement Date, U.S. treasury securities (or principal or interest
strips thereof) that mature on or prior to the Business Day immediately
preceding such scheduled Payment Date in an aggregate amount at maturity equal
to the aggregate interest payment (assuming no reset of the interest rate) that
would have been due on such scheduled Payment Date on the Applicable Principal
Amount.
"TREASURY PORTFOLIO PURCHASE PRICE" means the lowest aggregate
ask-side price quoted by a Primary Treasury Dealer to the Quotation Agent
between 9:00 a.m. and 11:00 a.m. (New York City time) (i) in the case of a
Special Event Redemption, on the third Business Day immediately preceding the
Special Event Redemption Date for the purchase of the applicable Treasury
Portfolio for settlement on the Special Event Redemption Date, and (ii) in the
case of any Successful Remarketing prior to the Final Remarketing Date, on the
date of such Successful Remarketing for the purchase of the applicable Treasury
Portfolio for settlement on the third Business Day immediately following the
date of such Successful Remarketing.
"TREASURY SECURITIES" means zero-coupon U.S. treasury
securities that mature on May 15, 2007 (CUSIP No. [ ]).
"TREASURY UNIT" means, following the substitution of Treasury
Securities for Pledged Senior Notes or the Pledged Applicable Ownership Interest
in the Treasury Portfolio as collateral to secure a Holder's obligations under
the Purchase Contract, the collective rights and obligations of a Holder of a
Treasury Units Certificate in respect of such Treasury Securities, subject to
the Pledge thereof, and the related Purchase Contract.
"TREASURY UNITS CERTIFICATE" means a certificate evidencing
the rights and obligations of a Holder in respect of the number of Treasury
Units specified on such certificate.
13
"UNDERWRITERS" means the underwriters identified in Schedule A
to the Underwriting Agreement.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement,
dated [ ], 2004, among the Company and the Underwriters, relating to the
issuance of Corporate Units by the Company.
"UNIT" means a Corporate Unit or a Treasury Unit, as the case
may be.
"VICE PRESIDENT" means any vice president, whether or not
designated by a number or a word or words added before or after the title "Vice
President."
Section 1.02. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon
any application or request by the Company to the Purchase Contract
Agent to take any action in accordance with any provision of this
Agreement, the Company shall furnish to the Purchase Contract Agent an
Officers' Certificate stating that all conditions precedent, if any,
provided for in this Agreement relating to the proposed action have
been complied with and, if reasonably requested by the Purchase
Contract Agent, an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Agreement relating to such particular application or
request, no additional certificate or opinion need be furnished.
Notwithstanding any portion of this Agreement to the contrary, the
Company shall not be required to furnish the Purchase Contract Agent an
Opinion of Counsel in connection with the issuance of the Corporate
Units pursuant to the Underwriting Agreement.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement (other than the Officers'
Certificate provided for in Section 10.05) shall include:
(i) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation as is
necessary to enable such individual to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
14
Section 1.03. Form of Documents Delivered to Purchase Contract
Agent.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. 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 its 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 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 an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Purchase Contract Agent and, where it is hereby expressly required, to
the Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "ACT" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Agreement and (subject to Section 7.01) conclusive in favor of
the Purchase Contract Agent and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner that the Purchase
Contract Agent deems sufficient.
(c) The ownership of Units shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Unit shall bind every future
Holder of the same Unit and the Holder of every Certificate evidencing such Unit
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Purchase Contract Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Certificate.
15
(e) The Company may set any date as a record date for the
purpose of determining the Holders of Outstanding Units 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 Units. If any record date is set pursuant to this paragraph,
the Holders of the Outstanding Corporate Units and the Outstanding Treasury
Units, as the case may be, on such record date, and no other Holders, shall be
entitled to take the relevant action with respect to the Corporate Units or the
Treasury Units, as the case may be, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken prior to or on the applicable Expiration Date by Holders
of the requisite number of Outstanding Units on such record date. Nothing
contained in this paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be cancelled and be of no
effect), and nothing contained in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite number of Outstanding
Units on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Purchase Contract Agent in writing and to
each Holder of Units in the manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section
1.04(e), the Company may designate any date as the "EXPIRATION DATE" and from
time to time may change the Expiration Date to any earlier or later day;
provided that no such change shall be effective unless notice of the proposed
new Expiration Date is given to the Purchase Contract Agent in writing, and to
each Holder of Units in the manner set forth in Section 1.06, prior to or on the
existing Expiration Date. If an Expiration Date is not designated with respect
to any record date set pursuant to this Section, the Company shall be deemed to
have initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Section 1.05. Notices.
Any notice or communication is duly given if in writing and
delivered in Person or mailed by first-class mail (registered or certified,
return receipt requested), telecopier (with receipt confirmed) or overnight air
courier guaranteeing next day delivery, to the others' address; provided that
notice shall be deemed given to the Purchase Contract Agent only upon receipt
thereof:
If to the Purchase Contract Agent:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
16
If to the Company:
Xxxxxxxxx'x, Inc.
000 Xxxxxxxxxx Xxxxxxxxx
X.X. Xxx 00
Xxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
If to the Collateral Agent:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
If to the Indenture Trustee:
U.S. Bank Trust National Association
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
The Purchase Contract Agent shall send to the Indenture
Trustee at the telecopier number set forth above a copy of any notices in the
form of Exhibits C, D, E or F it sends or receives.
Section 1.06. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at its address as it appears in the 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 Purchase Contract Agent, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be
17
made with the approval of the Purchase Contract 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
and the Purchase Contract Agent shall bind their respective successors and
assigns, whether so expressed or not.
Section 1.09. Separability Clause.
In case any provision in this Agreement or in the Units shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions hereof and thereof shall not in any way be affected
or impaired thereby.
Section 1.10. Benefits of Agreement.
Nothing contained in this Agreement or in the Units, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and, to the extent provided hereby, the Holders, any
benefits or any legal or equitable right, remedy or claim under this Agreement.
The Holders from time to time shall be beneficiaries of this Agreement and shall
be bound by all of the terms and conditions hereof and of the Units evidenced by
their Certificates by their acceptance of delivery of such Certificates.
Section 1.11. Governing Law.
This Agreement and the Units shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business Day
(notwithstanding any other provision of this Agreement or the Units), Contract
Adjustment Payments or other distributions shall not be paid on such date, but
Contract Adjustment Payments or such other distributions shall be paid on the
next succeeding Business Day with the same force and effect as if made on such
Payment Date, provided that if such Business Day is in the next succeeding
calendar year, then payment of the Contract Adjustment Payments or other
distributions will be made on the Business Day immediately preceding such
Business Day. No interest shall accrue or be payable by the Company or to any
Holder for the period from and after any such Payment Date.
In any case where the Purchase Contract Settlement Date or any
Early Settlement Date or Cash Merger Early Settlement Date shall not be a
Business Day (notwithstanding any
18
other provision of this Agreement or the Units), Purchase Contracts shall not be
performed and Early Settlement and Cash Merger Early Settlement shall not be
effected on such date, but Purchase Contracts shall be performed or Early
Settlement or Cash Merger Early Settlement shall be effected, as applicable, on
the next succeeding Business Day with the same force and effect as if made on
such Purchase Contract Settlement Date, Early Settlement Date or Cash Merger
Early Settlement Date, as applicable.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts
by the parties hereto on separate counterparts, each of which, when so executed
and delivered, shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable
times during normal business hours at the Corporate Trust Office for inspection
by any Holder or Beneficial Owner.
Section 1.15. Appointment of Financial Institution as Agent
for the Company.
The Company may appoint a financial institution (which may be
the Collateral Agent) to act as its agent in performing its obligations and in
accepting and enforcing performance of the obligations of the Purchase Contract
Agent and the Holders, under this Agreement and the Purchase Contracts, by
giving notice of such appointment in the manner provided in Section 1.05 hereof.
Any such appointment shall not relieve the Company in any way from its
obligations hereunder.
Section 1.16. No Waiver.
No failure on the part of the Company, the Purchase Contract
Agent, the Collateral Agent, the Securities Intermediary or any of their
respective agents to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Company, the
Collateral Agent, the Securities Intermediary or any of their respective agents
of any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies herein
are cumulative and are not exclusive of any remedies provided by law.
ARTICLE 2
CERTIFICATE FORMS
Section 2.01. Forms of Certificates Generally.
The Certificates (including the form of Purchase Contract
forming part of each Unit evidenced thereby) shall be in substantially the form
set forth in Exhibit A hereto (in the case of Certificates evidencing Corporate
Units) or Exhibit B hereto (in the case of Certificates
19
evidencing Treasury Units), 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 Units are listed or any depositary therefor, or
as may, consistently herewith, be determined by the officers of the Company
executing such Certificates, as evidenced by their execution of the
Certificates.
The definitive Certificates shall be produced in any manner as
determined by the officers of the Company executing the Units evidenced by such
Certificates, consistent with the provisions of this Agreement, as evidenced by
their execution thereof.
Every Global Certificate authenticated, executed on behalf of
the Holders and delivered hereunder shall bear a legend in substantially the
following form:
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS
EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF THIS
CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY
BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REQUESTED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Section 2.02. Form of Purchase Contract Agent's Certificate of
Authentication.
The form of the Purchase Contract Agent's certificate of
authentication of the Units shall be in substantially the form set forth on the
form of the applicable Certificates.
20
ARTICLE 3
THE UNITS
Section 3.01. Amount; Form and Denominations.
The aggregate number of Units evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to 40,000,000 (or 46,000,000 if the over-allotment option granted to the
Underwriters pursuant to the Underwriting Agreement is exercised in full),
except for Certificates authenticated, executed and delivered upon registration
of transfer of, in exchange for, or in lieu of, other Certificates pursuant to
Section 3.04, Section 3.05, Section 3.10, Section 3.13, Section 3.14 or Section
8.05.
The Certificates shall be issuable only in registered form and
only in denominations of a single Corporate Unit or Treasury Unit and any
integral multiple thereof.
Section 3.02. Rights and Obligations Evidenced by the
Certificates.
Each Corporate Units Certificate shall evidence the number of
Corporate Units specified therein, with each such Corporate Unit representing
(1) the ownership by the Holder thereof of a 1/40 undivided beneficial interest
in a Senior Note or the Applicable Ownership Interest in the Treasury Portfolio,
as the case may be, subject to the Pledge of such Senior Note or the Applicable
Ownership Interest (as specified in clause (i) of the definition of such term)
in the Treasury Portfolio, as the case may be, by such Holder pursuant to the
Pledge Agreement, and (2) the rights and obligations of the Holder thereof and
the Company under one Purchase Contract. The Purchase Contract Agent is hereby
authorized, as attorney-in-fact for, and on behalf of, the Holder of each
Corporate Unit, to pledge, pursuant to the Pledge Agreement, the Senior Note and
the Applicable Ownership Interest (as specified in clause (i) of the definition
of such term) in the Treasury Portfolio, if any, forming a part of such
Corporate Unit, to the Collateral Agent for the benefit of the Company, and to
grant to the Collateral Agent, for the benefit of the Company, a security
interest in the right, title and interest of such Holder in such Senior Note and
the Applicable Ownership Interest (as specified in clause (i) of the definition
of such term) in the Treasury Portfolio, if any, to secure the obligation of the
Holder under each Purchase Contract to purchase shares of Common Stock.
Upon the formation of a Treasury Unit pursuant to Section
3.13, each Treasury Unit Certificate shall evidence the number of Treasury Units
specified therein, with each such Treasury Unit representing (1) the ownership
by the Holder thereof of a 1/40 undivided beneficial interest in a Treasury
Security with a principal amount at maturity equal to $1,000, subject to the
Pledge of such interest by such Holder pursuant to the Pledge Agreement, and (2)
the rights and obligations of the Holder thereof and the Company under one
Purchase Contract. The Purchase Contract Agent is hereby authorized, as
attorney-in-fact for, and on behalf of, the Holder of each Treasury Unit, to
pledge, pursuant to the Pledge Agreement, such Holder's interest in the Treasury
Security forming a part of such Treasury Unit to the Collateral Agent, for the
benefit of the Company, and to grant to the Collateral Agent, for the benefit of
the Company, a security interest in the right, title and interest of such Holder
in such Treasury Security to
21
secure the obligation of the Holder under each Purchase Contract to purchase
shares of Common Stock.
Prior to the purchase of shares of Common Stock under each
Purchase Contract, such Purchase Contract shall not entitle the Holder of a Unit
to any of the rights of a holder of shares of Common Stock, including, without
limitation, the right to vote or receive any dividends or other payments or to
consent or to receive notice as a stockholder in respect of the meetings of
stockholders or for the election of directors of the Company or for any other
matter, or any other rights whatsoever as a stockholder of the Company.
Section 3.03. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Section 3.13 and Section 3.14
hereof, upon the execution and delivery of this Agreement, and at any time and
from time to time thereafter, the Company may deliver Certificates executed by
the Company to the Purchase Contract Agent for authentication, execution on
behalf of the Holders and delivery, together with its Issuer Order for
authentication of such Certificates, and the Purchase Contract Agent in
accordance with such Issuer Order shall authenticate, execute on behalf of the
Holders and deliver such Certificates.
The Certificates shall be executed on behalf of the Company by
its Chairman of the Board of Directors, its Chief Executive Officer, its
President, its Chief Financial Officer, its Treasurer or one of its Vice
Presidents. The signature of any of these officers on the Certificates may be
manual or facsimile.
Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid
until such Certificate has been executed on behalf of the Holder by the manual
signature of an authorized officer of the Purchase Contract Agent, as such
Holder's attorney-in-fact. Such signature by an authorized officer of the
Purchase Contract Agent shall be conclusive evidence that the Holder of such
Certificate has entered into the Purchase Contracts evidenced by such
Certificate.
Each Certificate shall be dated the date of its
authentication.
No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by an authorized officer of the Purchase Contract Agent by
manual signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
Section 3.04. Temporary Certificates.
Pending the preparation of definitive Certificates, the
Company shall execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall authenticate,
22
execute on behalf of the Holders, and deliver, in lieu of such definitive
Certificates, temporary Certificates that are in substantially the form set
forth in Exhibit A or Exhibit B hereto, as the case may be, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by the
rules of any securities exchange on which the Corporate Units or Treasury Units,
as the case may be, are listed, or as may, consistently herewith, be determined
by the officers of the Company executing such Certificates, as evidenced by
their execution of the Certificates.
If temporary Certificates are issued, the Company will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office, at the expense of the Company and
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent shall authenticate, execute on
behalf of the Holder, and deliver in exchange therefor, one or more definitive
Certificates of like tenor and denominations and evidencing a like number of
Units as the temporary Certificate or Certificates so surrendered. Until so
exchanged, the temporary Certificates shall in all respects evidence the same
benefits and the same obligations with respect to the Units evidenced thereby as
definitive Certificates.
Section 3.05. Registration; Registration of Transfer and
Exchange.
The Purchase Contract Agent shall keep at the Corporate Trust
Office a register (the "SECURITY REGISTER") in which, subject to such reasonable
regulations as it may prescribe, the Purchase Contract Agent shall provide for
the registration of Certificates and of transfers of Certificates (the Purchase
Contract Agent, in such capacity, the "SECURITY REGISTRAR"). The Security
Registrar shall record separately the registration and transfer of the
Certificates evidencing Corporate Units and Treasury Units.
Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office, the Company shall execute and deliver to the
Purchase Contract Agent, and the Purchase Contract Agent shall authenticate,
execute on behalf of the designated transferee or transferees, and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of any authorized denominations, like tenor, and evidencing a like
number of Corporate Units or Treasury Units, as the case may be.
At the option of the Holder, Certificates may be exchanged for
other Certificates, of any authorized denominations and evidencing a like number
of Corporate Units or Treasury Units, as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and
deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall
authenticate, execute on behalf of the Holder, and deliver the Certificates that
the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same number of
Corporate Units or Treasury Units, as the case may be, and be entitled to the
same benefits and subject to the same obligations
23
under this Agreement as the Corporate Units or Treasury Units, as the case may
be, evidenced by the Certificate surrendered upon such registration of transfer
or exchange.
Every Certificate presented or surrendered for registration of
transfer or exchange shall (if so required by the Purchase Contract Agent) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Purchase Contract Agent duly executed, by
the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of a Certificate, but the Company and the Purchase Contract
Agent may require payment from the Holder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Certificates, other than any exchanges
pursuant to Section 3.04, Section 3.06 and Section 8.05 not involving any
transfer.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall not be obligated to authenticate, execute on
behalf of the Holder and deliver any Certificate in exchange for any other
Certificate presented or surrendered for registration of transfer or for
exchange on or after the Business Day immediately preceding the earliest to
occur of any Early Settlement Date with respect to such Certificate, any Cash
Merger Early Settlement Date with respect to such Certificate, the Purchase
Contract Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Purchase Contract Agent shall:
(i) if the Purchase Contract Settlement Date (including upon
any Cash Settlement) or an Early Settlement Date or a Cash Merger Early
Settlement Date with respect to such other Certificate has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the Units evidenced by such other
Certificate; or
(ii) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Senior Notes, the
Treasury Securities, or the appropriate Applicable Ownership Interest
in the Treasury Portfolio, as the case may be, evidenced thereby, in
each case subject to the applicable conditions and in accordance with
the applicable provisions of Section 3.15 and Article 5 hereof.
Section 3.06. Book-Entry Interests.
The Certificates, on original issuance, will be issued in the
form of one or more fully registered Global Certificates, to be delivered to the
Depositary or its custodian by, or on behalf of, the Company. The Company hereby
designates DTC as the initial Depositary. Such Global Certificates shall
initially be registered on the books and records of the Company in the name of
Cede & Co., the nominee of the Depositary, and no Beneficial Owner will receive
a definitive Certificate representing such Beneficial Owner's interest in such
Global Certificate, except as provided in Section 3.09. The Purchase Contract
Agent shall enter into an agreement
24
with the Depositary if so requested by the Company. Unless and until definitive,
fully registered Certificates have been issued to Beneficial Owners pursuant to
Section 3.09:
(i) the provisions of this Section 3.06 shall be in full force
and effect;
(ii) the Company shall be entitled to deal with the Depositary
for all purposes of this Agreement (including, without limitation,
making Contract Adjustment Payments and receiving approvals, votes or
consents hereunder) as the Holder of the Units and the sole holder of
the Global Certificates and shall have no obligation to the Beneficial
Owners; provided that any Beneficial Owner may directly enforce against
the Company, without the involvement of the Depositary or any other
Person, its right to receive definitive Certificates pursuant to
Section 3.09;
(iii) to the extent that the provisions of this Section 3.06
conflict with any other provisions of this Agreement, the provisions of
this Section 3.06 shall control; and
(iv) the rights of the Beneficial Owners shall be exercised
only through the Depositary and shall be limited to those established
by law and agreements between such Beneficial Owners and the Depositary
or the Depositary Participants; provided that any Beneficial Owner may
directly enforce against the Company, without the involvement of the
Depositary or any other Person, its right to receive definitive
Certificates pursuant to Section 3.09.
Transfers of securities evidenced by Global Certificates shall be made through
the facilities of the Depositary, and any cancellation of, or increase or
decrease in the number of, such securities (including the creation of Treasury
Units and the recreation of Corporate Units pursuant to Section 3.13 and Section
3.14 respectively) shall be accomplished by making appropriate annotations on
the Schedule of Increases and Decreases for such Global Certificate.
Section 3.07. Notices to Holders.
Whenever a notice or other communication to the Holders is
required to be given under this Agreement, the Company or the Company's agent
shall give such notices and communications to the Holders and, with respect to
any Units registered in the name of the Depositary or the nominee of the
Depositary, the Company or the Company's agent shall, except as set forth
herein, have no obligations to the Beneficial Owners.
Section 3.08. Appointment of Successor Depositary.
If the Depositary elects to discontinue its services as
securities depositary with respect to the Units, the Company may, in its sole
discretion, appoint a successor Depositary with respect to the Units.
Section 3.09. Definitive Certificates.
If:
25
(i) the Depositary notifies the Company that it is unwilling
or unable to continue its services as securities depositary with
respect to the Units and no successor Depositary has been appointed
pursuant to Section 3.08 within 90 days after such notice; or
(ii) the Depositary ceases to be a "clearing agency"
registered under Section 17A of the Exchange Act when the Depositary is
required to be so registered to act as the Depositary and so notifies
the Company, and no successor Depositary has been appointed pursuant to
Section 3.08 within 90 days after such notice; or
(iii) any event of default has occurred and is continuing
under the Notes or this Agreement; or
(iv) the Company determines in its sole discretion that the
Global Certificates shall be exchangeable for definitive Certificates,
then (x) definitive Certificates shall be prepared by the Company with respect
to such Units and delivered to the Purchase Contract Agent and (y) upon
surrender of the Global Certificates representing the Units by the Depositary,
accompanied by registration instructions, the Company shall cause definitive
Certificates to be delivered to Beneficial Owners in accordance with the
instructions of the Depositary. The Company and the Purchase Contract Agent
shall not be liable for any delay in delivery of such instructions and may
conclusively rely on and shall be authorized and protected in relying on, such
instructions. Each definitive Certificate so delivered shall evidence Units of
the same kind and tenor as the Global Certificate so surrendered in respect
thereof.
Section 3.10. Mutilated, Destroyed, Lost and Stolen
Certificates.
If any mutilated Certificate is surrendered to the Purchase
Contract Agent, the Company shall execute and deliver to the Purchase Contract
Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of
the Holder, and deliver in exchange therefor, a new Certificate, evidencing the
same number of Corporate Units or Treasury Units, as the case may be, and
bearing a Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Purchase
Contract Agent (i) evidence to their satisfaction of the destruction, loss or
theft of any Certificate, and (ii) such security or indemnity as may be required
by them to hold each of them and any agent of any of them harmless, then, in the
absence of notice to the Company or the Purchase Contract Agent that such
Certificate has been acquired by a protected purchaser, the Company shall
execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall authenticate, execute on behalf of the Holder, and deliver to the
Holder, in lieu of any such destroyed, lost or stolen Certificate, a new
Certificate, evidencing the same number of Corporate Units or Treasury Units, as
the case may be, and bearing a Certificate number not contemporaneously
outstanding.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall not be obligated to authenticate, execute on
behalf of the Holder, and deliver to the Holder, a Certificate on or after the
Business Day immediately preceding the earliest of any Early Settlement Date
with respect to such lost or mutilated Certificate, any Cash Merger Early
Settlement Date
26
with respect to such lost or mutilated Certificate, the Purchase Contract
Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Purchase Contract Agent shall:
(i) if the Purchase Contract Settlement Date or Early
Settlement Date or Cash Merger Early Settlement Date with respect to
such lost, stolen, destroyed or mutilated Certificate has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the Units evidenced by such Certificate; or
(ii) if a Cash Settlement with respect to such lost or
mutilated Certificate or if a Termination Event shall have occurred
prior to the Purchase Contract Settlement Date, transfer the Senior
Notes, the Treasury Securities or the appropriate Applicable Ownership
Interest (as specified in clause (i) of the definition of such term) in
the Treasury Portfolio, as the case may be, evidenced thereby, in each
case subject to the applicable conditions and in accordance with the
applicable provisions of Section 3.15 and Article 5 hereof.
Upon the issuance of any new Certificate under this Section,
the Company and the Purchase Contract Agent may require the payment by the
Holder of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other fees and expenses (including,
without limitation, the fees and expenses of the Purchase Contract Agent)
connected therewith.
Every new Certificate issued pursuant to this Section in lieu
of any destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder in respect of
the Units evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Units evidenced thereby) shall be at any time enforceable
by anyone, and shall be entitled to all the benefits and be subject to all the
obligations of this Agreement equally and proportionately with any and all other
Certificates delivered hereunder.
The provisions of this Section are exclusive and shall
preclude, to the extent lawful, all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.11. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of
transfer, the Company and the Purchase Contract Agent, and any agent of the
Company or the Purchase Contract Agent, may treat the Person in whose name such
Certificate is registered as the owner of the Units evidenced thereby for
purposes of (subject to any applicable record date) any payment or distribution
on the Senior Notes or on the Applicable Ownership Interests (as specified in
clause (ii) of the definition of such term) in the Treasury Portfolio (if any),
as applicable, payment of Contract Adjustment Payments and performance of the
Purchase Contracts and for all other purposes whatsoever in connection with such
Units, whether or not such payment, distribution, or performance shall be
overdue and notwithstanding any notice to the contrary, and neither the
27
Company nor the Purchase Contract Agent, nor any agent of the Company or the
Purchase Contract Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Certificate, nothing contained herein shall prevent the Company, the Purchase
Contract Agent or any agent of the Company or the Purchase Contract Agent from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary (or its nominee), as a Holder, with respect to such
Global Certificate, or impair, as between such Depositary and the related
Beneficial Owner, the operation of customary practices governing the exercise of
rights of the Depositary (or its nominee) as Holder of such Global Certificate.
None of the Company, the Purchase Contract Agent or any agent of the Company or
the Purchase Contract Agent will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Certificate or maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Section 3.12. Cancellation.
All Certificates surrendered for delivery of shares of Common
Stock on or after the Purchase Contract Settlement Date or upon the transfer of
Senior Notes, or for delivery of Senior Notes, the appropriate Applicable
Ownership Interest in the Treasury Portfolio or Treasury Securities, as the case
may be, after the occurrence of a Termination Event or pursuant to a Cash
Settlement, an Early Settlement or a Cash Merger Early Settlement, or upon the
registration of transfer or exchange of a Unit, or a Collateral Substitution or
the recreation of Corporate Units shall, if surrendered to any Person other than
the Purchase Contract Agent, be delivered to the Purchase Contract Agent along
with appropriate written instructions regarding the cancellation thereof and, if
not already cancelled, shall be promptly cancelled by it. The Company may at any
time deliver to the Purchase Contract Agent for cancellation any Certificates
previously authenticated, executed and delivered hereunder that the Company may
have acquired in any manner whatsoever, and all Certificates so delivered shall,
upon an Issuer Order, be promptly cancelled by the Purchase Contract Agent. No
Certificates shall be authenticated, executed on behalf of the Holder and
delivered in lieu of or in exchange for any Certificates cancelled as provided
in this Section, except as expressly permitted by this Agreement. All cancelled
Certificates held by the Purchase Contract Agent shall be disposed of in
accordance with its customary practices.
If the Company or any Affiliate of the Company shall acquire
any Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Purchase
Contract Agent cancelled or for cancellation.
Section 3.13. Creation of Treasury Units by Substitution of
Treasury Securities.
Unless the Treasury Portfolio has replaced the Senior Notes as
a component of the Corporate Units, and subject to the conditions set forth in
this Agreement, a Holder may, at any time from and after the date of this
Agreement and on or prior to 5:00 p.m. (New York City time) on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, effect
a Collateral Substitution and separate the Pledged Senior Notes from the related
Purchase Contracts in respect of all or a portion of such Holder's Corporate
Units by substituting for such
28
Pledged Senior Notes, Treasury Securities or portions thereof in an aggregate
principal amount at maturity equal to the aggregate principal amount of such
Pledged Senior Notes; provided that Holders may make Collateral Substitutions
only in integral multiples of 40 Corporate Units. To effect such substitution,
the Holder must:
(1) deposit with the Securities Intermediary Treasury
Securities having an aggregate principal amount at
maturity equal to the aggregate principal amount of
the Senior Notes comprising part of all such
Corporate Units; and
(2) transfer the related Corporate Units to the Purchase
Contract Agent accompanied by a notice to the
Purchase Contract Agent, substantially in the form of
Exhibit C hereto, (i) stating that the Holder has
deposited the relevant amount of Treasury Securities
with the Securities Intermediary for credit to the
Collateral Account and (ii) instructing the Purchase
Contract Agent to instruct the Collateral Agent to
release the Pledged Senior Notes underlying such
Corporate Units, whereupon the Purchase Contract
Agent shall promptly provide an instruction to such
effect to the Collateral Agent, substantially in the
form of Exhibit A to the Pledge Agreement.
Upon receipt of the Treasury Securities described in clause (1) above and the
instruction described in clause (2) above, in accordance with the terms of the
Pledge Agreement, the Collateral Agent will cause the Securities Intermediary to
effect the release of such Pledged Senior Notes from the Pledge and the transfer
of such Senior Notes to the Purchase Contract Agent on behalf of the Holder free
and clear of the Company's security interest therein. Upon receipt of such
Senior Notes, the Purchase Contract Agent shall promptly:
(i) cancel the related Corporate Units;
(ii) transfer the Senior Notes to the Holder (such Senior
Notes shall be tradeable as a separate security, independent of the
resulting Treasury Units); and
(iii) authenticate, execute on behalf of such Holder and
deliver Treasury Units in book-entry form, or if applicable, in the
form of a Treasury Units Certificate executed by the Company in
accordance with Section 3.03 evidencing the same number of Purchase
Contracts as were evidenced by the cancelled Corporate Units.
Holders who elect to separate the Senior Notes from the
related Purchase Contracts and to substitute Treasury Securities for such Senior
Notes shall be responsible for any fees or expenses (including, without
limitation, fees and expenses payable to the Collateral Agent for its services
as Collateral Agent) in respect of the substitution, and neither the Company nor
the Purchase Contract Agent shall be responsible for any such fees or expenses.
If the Treasury Portfolio has replaced the Senior Notes as a
component of the Corporate Units and subject to the conditions set forth in this
Agreement, a Holder may, at any time on or prior to the second Business Day
immediately preceding the Purchase Contract Settlement Date, substitute Treasury
Securities for the Applicable Ownership Interests in the
29
Treasury Portfolio included in such Corporate Units, but only in integral
multiples of [ ] Corporate Units. In such an event, the Holder shall transfer
Treasury Securities having an aggregate principal amount at maturity equal to
the aggregate Stated Amount of the Purchase Contracts underlying such Corporate
Units to the Securities Intermediary, and the Purchase Contract Agent shall
instruct the Collateral Agent to release the Pledge of and transfer to the
Holder the appropriate Applicable Ownership Interests in the Treasury Portfolio
in the manner set forth above.
In the event a Holder making a Collateral Substitution
pursuant to this Section 3.13 fails to effect a book-entry transfer of the
Corporate Units or fails to deliver Corporate Units Certificates to the Purchase
Contract Agent after depositing Treasury Securities with the Securities
Intermediary, any distributions on the Senior Notes or Applicable Ownership
Interest in the Treasury Portfolio constituting a part of such Corporate Units
shall be held in the name of the Purchase Contract Agent or its nominee in trust
for the benefit of such Holder, until such Corporate Units are so transferred or
the Corporate Units Certificate is so delivered, as the case may be, or, such
Holder provides evidence satisfactory to the Company and the Purchase Contract
Agent that such Corporate Units Certificate has been destroyed, lost or stolen,
together with any indemnity that may be required by the Purchase Contract Agent
and the Company.
Except as described in Section 5.02 or in this Section 3.13 or
in connection with a Cash Settlement, an Early Settlement, a Cash Merger Early
Settlement or a Termination Event, for so long as the Purchase Contract
underlying a Corporate Unit remains in effect, such Corporate Units shall not be
separable into its constituent parts, and the rights and obligations of the
Holder in respect of the Senior Notes or Applicable Ownership Interests in the
Treasury Portfolio, as the case may be, and the Purchase Contract comprising
such Corporate Units may be acquired, and may be transferred and exchanged, only
as a Corporate Unit.
Section 3.14. Recreation of Corporate Units.
Unless the Treasury Portfolio has replaced the Senior Notes as
a component of the Corporate Units, and subject to the conditions set forth in
this Agreement, a Holder of Treasury Units may recreate Corporate Units at any
time on or prior to 5:00 p.m. (New York City time) on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date; provided that
Holders of Treasury Units may only recreate Corporate Units in integral
multiples of 40 Treasury Units. To recreate Corporate Units, the Holder must:
(1) transfer to the Securities Intermediary Senior Notes
having an aggregate principal amount equal to the
aggregate principal amount at stated maturity of the
Pledged Treasury Securities comprising part of the
Treasury Units; and
(2) transfer the related Treasury Units to the Purchase
Contract Agent accompanied by a notice to the
Purchase Contract Agent, substantially in the form of
Exhibit C hereto, (i) stating that the Holder has
transferred the relevant amount of Senior Notes to
the Securities Intermediary for deposit in the
Collateral Account and (ii) instructing the Purchase
Contract Agent to instruct the Collateral Agent to
release the Pledged Treasury Securities
30
underlying such Treasury Units, whereupon the
Purchase Contract Agent shall promptly provide an
instruction to such effect to the Collateral Agent,
substantially in the form of Exhibit C to the Pledge
Agreement.
Upon receipt of the Senior Notes described in clause (1) above and the
instruction described in clause (2) above, in accordance with the terms of the
Pledge Agreement, the Collateral Agent will cause the Securities Intermediary to
effect the release of the Pledged Treasury Securities having a corresponding
aggregate principal amount at maturity from the Pledge and the transfer thereof
to the Purchase Contract Agent on behalf of the Holder free and clear of the
Company's security interest therein. Upon receipt of such Treasury Securities,
the Purchase Contract Agent shall promptly:
(i) cancel the related Treasury Units;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver Corporate Units in book-entry form or, if applicable, in the
form of a Corporate Units Certificate executed by the Company in
accordance with Section 3.03 evidencing the same number of Purchase
Contracts as were evidenced by the cancelled Treasury Units.
Holders who elect to recreate Corporate Units shall be
responsible for any fees or expenses (including, without limitation, fees and
expenses payable to the Collateral Agent for its services as Collateral Agent)
in respect of the recreation, and neither the Company nor the Purchase Contract
Agent shall be responsible for any such fees or expenses.
If the Treasury Portfolio has replaced the Senior Notes as a
component of the Corporate Units, a Holder of Treasury Units may at any time on
or prior to the second Business Day immediately preceding the Purchase Contract
Settlement Date substitute the Applicable Ownership Interests in the Treasury
Portfolio for Treasury Securities, but only in multiples of [ ] Treasury Units.
In such an event, the Holder shall transfer the appropriate Applicable Ownership
Interests in the Treasury Portfolio to the Collateral Agent, and the Purchase
Contract Agent shall instruct the Collateral Agent to release the Pledge of and
transfer to the Holder Treasury Securities in the manner set forth above.
Except as provided in Section 5.02 or in this Section 3.14 or
in connection with a Cash Settlement, an Early Settlement, a Cash Merger Early
Settlement or a Termination Event, for so long as the Purchase Contract
underlying a Treasury Unit remains in effect, such Treasury Unit shall not be
separable into its constituent parts and the rights and obligations of the
Holder of such Treasury Unit in respect of the 1/40 of a Treasury Security and
the Purchase Contract comprising such Treasury Unit may be acquired, and may be
transferred and exchanged, only as a Treasury Unit.
Section 3.15. Transfer of Collateral upon Occurrence of
Termination Event.
Upon the occurrence of a Termination Event and the transfer to
the Purchase Contract Agent of the Senior Notes, the appropriate Applicable
Ownership Interests in the Treasury Portfolio or the Treasury Securities, as the
case may be, underlying the Corporate Units
31
and the Treasury Units, as the case may be, pursuant to the terms of the Pledge
Agreement, the Purchase Contract Agent shall request transfer instructions with
respect to such Senior Notes, the appropriate Applicable Ownership Interests in
the Treasury Portfolio or Treasury Securities, as the case may be, from each
Holder by written request, substantially in the form of Exhibit D hereto, mailed
to such Holder at its address as it appears in the Security Register.
Upon book-entry transfer of the Corporate Units or the
Treasury Units or delivery of a Corporate Units Certificate or Treasury Units
Certificate to the Purchase Contract Agent with such transfer instructions, the
Purchase Contract Agent shall transfer the Senior Notes, the appropriate
Applicable Ownership Interests in the Treasury Portfolio or Treasury Securities,
as the case may be, underlying such Corporate Units or Treasury Units, as the
case may be, to such Holder by book-entry transfer, or other appropriate
procedures, in accordance with such instructions. In the event a Holder of
Corporate Units or Treasury Units fails to effect such transfer or delivery, the
Senior Notes, the appropriate Applicable Ownership Interests in the Treasury
Portfolio or Treasury Securities, as the case may be, underlying such Corporate
Units or Treasury Units, as the case may be, and any distributions thereon,
shall be held in the name of the Purchase Contract Agent or its nominee in trust
for the benefit of such Holder, until the earlier to occur of:
(i) the transfer of such Corporate Units or Treasury Units or
surrender of the Corporate Units Certificate or Treasury Units
Certificate or the receipt by the Company and the Purchase Contract
Agent from such Holder of satisfactory evidence that such Corporate
Units Certificate or Treasury Units Certificate has been destroyed,
lost or stolen, together with any indemnity that may be required by the
Purchase Contract Agent and the Company; and
(ii) the expiration of the time period specified in the
abandoned property laws of the relevant State in which the Purchase
Contract Agent holds such property.
Section 3.16. No Consent to Assumption.
Each Holder of a Unit, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365 of
the Bankruptcy Code or otherwise, of the Purchase Contract by the Company or its
trustee, receiver, liquidator or a person or entity performing similar functions
in the event that the Company becomes the debtor under the Bankruptcy Code or
subject to other similar state or Federal law providing for reorganization or
liquidation.
ARTICLE 4
THE SENIOR NOTES AND APPLICABLE OWNERSHIP
INTERESTS IN THE TREASURY PORTFOLIO
Section 4.01. Interest Payments; Rights to Interest Payments
Preserved.
Any payment on any Senior Note or on the appropriate
Applicable Ownership Interests (as specified in clause (ii) of the definition of
such term) in the Treasury Portfolio, as
32
the case may be, which is paid on any Payment Date shall, subject to receipt
thereof by the Purchase Contract Agent from the Company (in the case of a Senior
Note that is held in the name of the Purchase Contract Agent) or from the
Collateral Agent as provided by the terms of the Pledge Agreement (in the case
of Applicable Ownership Interests or a Senior Note that is held in the name of
the Collateral Agent), be paid by the Purchase Contract Agent to the Person in
whose name the Corporate Units Certificate (or one or more Predecessor Corporate
Units Certificates) of which such Senior Note or the appropriate Applicable
Ownership Interests in the Treasury Portfolio, as the case may be, forms a part
is registered at the close of business on the Record Date for such Payment Date.
Each Corporate Units Certificate evidencing Senior Notes or
the appropriate Applicable Ownership Interests in the Treasury Portfolio
delivered under this Agreement upon registration of transfer of or in exchange
for or in lieu of any other Corporate Units Certificate shall carry the right to
accrued and unpaid interest or distributions, and to accrue interest or
distributions, which were carried by the Senior Notes or the appropriate
Applicable Ownership Interests in the Treasury Portfolio underlying such other
Corporate Units Certificate.
In the case of any Corporate Unit with respect to which (A)
Cash Settlement of the underlying Purchase Contract is properly effected
pursuant to Section 5.02(b) or Section 5.02(e) hereof, (B) Early Settlement of
the underlying Purchase Contract is properly effected pursuant to Section 5.07
hereof, (C) Cash Merger Early Settlement of the underlying Purchase Contract is
properly effected pursuant to Section 5.04(b)(ii) hereof, (D) a Collateral
Substitution is properly effected pursuant to Section 3.13, or (E) a Successful
Initial Remarketing occurs with respect to the Senior Note that is part of such
Corporate Unit, in each case on a date that is after any Record Date and prior
to or on the next succeeding Payment Date, interest on the Senior Notes or
distributions on the appropriate Applicable Ownership Interests in the Treasury
Portfolio, as the case may be, underlying such Corporate Unit otherwise payable
on such Payment Date shall be payable on such Payment Date notwithstanding such
Cash Settlement, Early Settlement, Cash Merger Early Settlement, Collateral
Substitution or Initial Remarketing, and such payment or distributions shall,
subject to receipt thereof by the Purchase Contract Agent, be payable to the
Person in whose name the Corporate Units Certificate (or one or more Predecessor
Corporate Units Certificates) was registered at the close of business on the
Record Date.
Except as otherwise expressly provided in the immediately
preceding paragraph, in the case of any Corporate Units with respect to which
Cash Settlement, Early Settlement or Cash Merger Early Settlement of the
underlying Purchase Contract is properly effected, or with respect to which a
Collateral Substitution has been effected, payments on the related Senior Notes
or distributions on the appropriate Applicable Ownership Interests in the
Treasury Portfolio, as the case may be, that would otherwise be payable or made
after the Purchase Contract Settlement Date, Early Settlement Date, Cash Merger
Early Settlement Date or the date of the Collateral Substitution, as the case
may be, shall not be payable hereunder to the Holder of such Corporate Units;
provided, however, that to the extent that such Holder continues to hold
Separate Senior Notes or Applicable Ownership Interest in the Treasury Portfolio
that formerly comprised a part of such Holder's Corporate Units, such Holder
shall be entitled to receive interest on such Separate Senior Notes or
distributions on the Applicable Ownership Interests in the Treasury Portfolio.
33
Section 4.02. Notice and Voting.
Under the terms of the Pledge Agreement, the Purchase Contract Agent
will be entitled to exercise the voting and any other consensual rights
pertaining to the Pledged Senior Notes, but only to the extent instructed in
writing by the Holders as described below. Upon receipt of notice of any meeting
at which holders of Senior Notes are entitled to vote or upon any solicitation
of consents, waivers or proxies of holders of Senior Notes, the Purchase
Contract Agent shall, as soon as practicable thereafter, mail, first class,
postage pre-paid, to the Holders of Corporate Units a notice:
(i) containing such information as is contained in the notice or
solicitation;
(ii) stating that each Holder on the record date set by the Purchase
Contract Agent therefor (which, to the extent possible, shall be the same
date as the record date for determining the holders of Senior Notes, as
the case may be, entitled to vote) shall be entitled to instruct the
Purchase Contract Agent as to the exercise of the voting rights pertaining
to such Senior Notes underlying their Corporate Units; and
(iii) stating the manner in which such instructions may be given.
Upon the written request of the Holders of Corporate Units on such record date
received by the Purchase Contract Agent at least six days prior to such meeting,
the Purchase Contract Agent shall endeavor insofar as practicable to vote or
cause to be voted, in accordance with the instructions set forth in such
requests, the maximum number of Senior Notes, as the case may be, as to which
any particular voting instructions are received. In the absence of specific
instructions from the Holder of a Corporate Unit, the Purchase Contract Agent
shall abstain from voting the Senior Notes underlying such Corporate Unit. The
Company hereby agrees, if applicable, to solicit Holders of Corporate Units to
timely instruct the Purchase Contract Agent in order to enable the Purchase
Contract Agent to vote such Senior Notes.
The Holders of Corporate Units and Treasury Units shall have no
voting or other rights in respect of Common Stock.
Section 4.03. Special Event Redemption.
(a) If the Company elects to redeem the Senior Notes on any Payment
Date following the occurrence of a Special Event as permitted by the Indenture,
it shall notify the Collateral Agent in writing that a Special Event has
occurred and that it intends to redeem the Senior Notes on the Special Event
Redemption Date. On the Special Event Redemption Date, the Collateral Agent
shall surrender the Pledged Senior Notes to the Indenture Trustee against
delivery of an amount equal to the aggregate Redemption Price for such Pledged
Senior Notes. Thereafter, pursuant to the terms of the Pledge Agreement, the
Collateral Agent shall cause the Securities Intermediary to apply an amount
equal to the aggregate Redemption Amount of such funds to purchase on behalf of
the Holders of Corporate Units the Treasury Portfolio and promptly remit the
remaining portion of such funds to the Purchase Contract Agent for payment to
the Holders of such Corporate Units.
34
(b) Upon the occurrence of a Special Event Redemption, (i) the
Applicable Ownership Interests (as specified in clause (i) of the definition of
such term) in the Treasury Portfolio will be substituted as Collateral for the
Pledged Senior Notes and will be held by the Collateral Agent in accordance with
the terms of the Pledge Agreement to secure the obligation of each Holder of a
Corporate Unit to purchase Common Stock of the Company under the Purchase
Contract constituting a part of such Corporate Unit, (ii) the Applicable
Ownership Interests (as specified in clause (ii) of the definition of such term)
in the Treasury Portfolio will be transferred to the Purchase Contract Agent for
the benefit of the Holders of such Corporate Units, (iii) the Holders of
Corporate Units and the Collateral Agent shall have such security interest
rights and obligations with respect to such Applicable Ownership Interests (as
specified in clause (i) of the definition of such term) in the Treasury
Portfolio as the Holders of Corporate Units and the Collateral Agent had in
respect of the Senior Notes, as the case may be, subject to the Pledge thereof
as provided in the Pledge Agreement, (iv) any reference herein or in the
Certificates to the Senior Notes shall be deemed to be a reference to such
Applicable Ownership Interests (as specified in clause (i) of the definition of
such term) in the Treasury Portfolio and (v) any reference herein or in the
Certificates to interest on the Senior Notes shall be deemed to be a reference
to corresponding distributions on such Applicable Ownership Interests (as
specified in clause (i) of the definition of such term) in the Treasury
Portfolio. The Company may cause to be made in any Corporate Units Certificates
thereafter to be issued such change in phraseology and form (but not in
substance) as may be appropriate to reflect the substitution of the Applicable
Ownership Interests (as specified in clause (i) of the definition of such term)
in the Treasury Portfolio for Senior Notes as Collateral.
(c) The Holders of Separate Senior Notes shall directly receive the
Redemption Price for the Separate Senior Notes in accordance with the terms of
the Indenture.
ARTICLE 5
THE PURCHASE CONTRACTS
Section 5.01. Purchase of Shares of Common Stock.
(a) Each Purchase Contract shall obligate the Holder of the related
Units to purchase, and the Company to sell, on the Purchase Contract Settlement
Date at a price equal to $25 (the "PURCHASE PRICE"), a number of newly issued
shares of Common Stock (subject to Section 5.09) equal to the Settlement Rate
(as defined below) unless an Early Settlement, a Cash Merger Early Settlement or
a Termination Event with respect to the Unit of which such Purchase Contract is
a part shall have occurred. The "SETTLEMENT RATE" is equal to:
(i) if the Adjusted Applicable Market Value (as defined below) is
greater than or equal to $[ ] (the "THRESHOLD APPRECIATION PRICE"), [ ]
shares of Common Stock per Purchase Contract (such number of shares, as
adjusted from time to time pursuant to Section 5.04, the "MINIMUM SHARE
NUMBER");
(ii) if the Adjusted Applicable Market Value is less than the
Threshold Appreciation Price but greater than $[ ] (the "REFERENCE
PRICE"), the number of
35
shares of Common Stock per Purchase Contract having a value equal to the
Stated Amount divided by the Applicable Market Value; and
(iii) if the Adjusted Applicable Market Value is less than or equal
to the Reference Price, [ ] shares of Common Stock per Purchase Contract
(such number of shares, as adjusted from time to time pursuant to Section
5.04, the "MAXIMUM SHARE NUMBER").
in each case rounded upward or downward to the nearest 1/10,000th of a share.
The "ADJUSTED APPLICABLE MARKET VALUE" means (i) prior to any
adjustment pursuant to paragraph (i), (ii), (iii), (iv), (v), (vi), (vii) or (x)
of Section 5.04(a), the Applicable Market Value, and (ii) at the time of and
after any adjustment of the Fixed Settlement Rate pursuant to paragraph (i),
(ii), (iii), (iv), (v), (vi), (vii) or (x) of Section 5.04(a), the Applicable
Market Value multiplied by a fraction of which the numerator shall be the Fixed
Settlement Rate immediately after such adjustment pursuant to paragraph (i),
(ii), (iii), (iv), (v), (vi), (vii) or (x) of Section 5.04(a) and the
denominator shall be the Fixed Settlement Rate immediately prior to such
adjustment; provided, however, that if such adjustment to the Fixed Settlement
Rate is required to be made pursuant to the occurrence of any of the events
contemplated by paragraph (i), (ii), (iii), (iv), (v), (vi), (vii) or (x) of
Section 5.04(a) during the period taken into consideration for determining the
Applicable Market Value, appropriate and customary adjustments shall be made to
the Fixed Settlement Rate.
The "APPLICABLE MARKET VALUE" means the average of the Closing Price
per share of Common Stock on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Purchase Contract Settlement
Date.
The "CLOSING PRICE" per share of Common Stock on any date of
determination means:
(i) the closing sale price as of the close of the principal trading
session (or, if no closing price is reported, the last reported sale
price) per share on the New York Stock Exchange, Inc. (the "NYSE") on such
date;
(ii) if the Common Stock is not listed for trading on the NYSE on
any such date, the closing sale price (or, if no closing price is
reported, the last reported sale price) per share as reported in the
composite transactions for the principal United States national or
regional securities exchange on which the Common Stock is so listed;
(iii) if the Common Stock is not so listed on a United States
national or regional securities exchange, the last closing sale price per
share as reported by the Nasdaq National Market, Inc.;
(iv) if the Common Stock is not so reported by the Nasdaq National
Market, Inc., 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
36
(v) if the bid price referred to in clause (iv) is not available,
the market value of Common Stock on such date as determined by a
nationally recognized independent investment banking firm retained by the
Company for purposes of determining the Closing Price.
A "TRADING DAY" means a day on which the Common Stock (1) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
(b) Each Holder of a Corporate Unit or a Treasury Unit, by its
acceptance of such Unit:
(i) irrevocably authorizes the Purchase Contract Agent to enter into
and perform the related Purchase Contract on its behalf as its
attorney-in-fact (including, without limitation, the execution of
Certificates on behalf of such Holder);
(ii) agrees to be bound by the terms and provisions thereof;
(iii) covenants and agrees to perform its obligations under such
Purchase Contract for so long as such Holder remains a Holder of a
Corporate Unit or a Treasury Unit;
(iv) consents to the provisions hereof;
(v) irrevocably authorizes the Purchase Contract Agent to enter into
and perform this Agreement and the Pledge Agreement on its behalf and in
its name as its attorney-in-fact;
(vi) consents to, and agrees to be bound by, the Pledge of such
Holder's right, title and interest in and to the Collateral Account,
including the Senior Notes and the Applicable Ownership Interests (as
specified in clause (i) of the definition of such term) in the Treasury
Portfolio or the Treasury Securities pursuant to the Pledge Agreement; and
(vii) for United States federal, state and local income and
franchise tax purposes, agrees to (A) treat an acquisition of the
Corporate Units as an acquisition of the Senior Notes and Purchase
Contracts constituting the Corporate Units and (B) treat itself as the
owner of the applicable interest in the Collateral Account, including the
Senior Notes and the Applicable Ownership Interests in the Treasury
Portfolio (as specified in clause (i) of the definition of such term) or
the Treasury Securities,
provided that upon a Termination Event, the rights of the Holder of such Units
under the Purchase Contract may be enforced without regard to any other rights
or obligations.
(c) Each Holder of a Corporate Unit or a Treasury Unit, by its
acceptance thereof, further covenants and agrees that to the extent and in the
manner provided in Section 5.02 hereof
37
and the provisions of the Pledge Agreement, but subject to the terms thereof,
Proceeds of the Senior Notes, the Treasury Securities or the Applicable
Ownership Interests (as specified in clause (i) of the definition of such term)
in the Treasury Portfolio, as applicable, on the Purchase Contract Settlement
Date, shall be paid by the Collateral Agent to the Company in satisfaction of
such Holder's obligations under such Purchase Contract and such Holder shall
acquire no right, title or interest in such Proceeds.
(d) Upon registration of transfer of a Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of this Agreement, the Purchase Contracts underlying
such Certificate and the Pledge Agreement and the transferor shall be released
from the obligations under this Agreement, the Purchase Contracts underlying the
Certificate so transferred and the Pledge Agreement. The Company covenants and
agrees, and each Holder of a Certificate, by its acceptance thereof, likewise
covenants and agrees, to be bound by the provisions of this paragraph.
Section 5.02. Remarketing; Payment of Purchase Price.
(a) (i) Unless a Special Event Redemption has occurred prior to the
Initial Remarketing Date, the Company shall engage the Remarketing Agent
pursuant to the Remarketing Agreement for Remarketing the Senior Notes. By 11:00
a.m. (New York City time) on the Business Day immediately preceding the Initial
Remarketing Date, the Collateral Agent shall notify the Remarketing Agent of the
aggregate principal amount of Pledged Senior Notes, and the Custodial Agent
shall notify the Remarketing Agent of the aggregate principal amount of Separate
Senior Notes (if any) that are to be remarketed pursuant to clause (ii) below.
Concurrently, the Custodial Agent will present for remarketing the Separate
Senior Notes to the Remarketing Agent. Upon receipt of such notice from the
Collateral Agent and Custodial Agent, and the Separate Senior Notes for
remarketing from the Custodial Agent, the Remarketing Agent will, on the Initial
Remarketing Date, use its commercially reasonable efforts to remarket (based on
the Reset Rate) (the "INITIAL REMARKETING") such Pledged Senior Notes and
Separate Senior Notes on such date at a price of equal to approximately 100.25%
(or, if the Remarketing Agent is unable to remarket the Pledged Notes and
Separate Senior Notes, at a rate below 100.25% but in no event less than 100%)
of the sum of the Treasury Portfolio Purchase Price plus the Separate Senior
Notes Purchase Price, as provided in the Remarketing Agreement. If the
Remarketing Agent is able to remarket the Pledged Senior Notes and Separate
Senior Notes at a price equal to or greater than 100% of the Treasury Portfolio
Purchase Price plus the Separate Senior Notes Purchase Price (a "SUCCESSFUL
INITIAL REMARKETING"), the Collateral Agent shall, in accordance with the Pledge
Agreement, cause the Securities Intermediary to transfer the Pledged Senior
Notes upon confirmation of deposit by the Remarketing Agent of the proceeds of
such Successful Remarketing in the Collateral Account, and the portion of the
proceeds from such Successful Initial Remarketing equal to the Treasury
Portfolio Purchase Price will be applied to purchase the Treasury Portfolio. The
Remarketing Agent will deduct as a remarketing fee an amount equal to the lesser
of (x) 25 basis points (.25%) of the sum of the Treasury Portfolio Purchase
Price plus the Separate Senior Notes Purchase Price and (y) any proceeds of such
Successful Remarketing in excess of the Treasury Portfolio Price plus the
Separate Senior Notes Purchase Price. To the extent that such amount is less
than 25 basis points of the Treasury Portfolio Purchase Price plus the Separate
Senior Notes Purchase Price, the Company shall pay an amount, as an additional
remarketing fee, to the Remarketing Agent equal to such shortfall
38
(such amount, together with the amount in the previous sentence, the
"REMARKETING FEE"). With respect to Pledged Senior Notes upon a Successful
Initial Remarketing, any proceeds of the Initial Remarketing in excess of the
sum of the Treasury Portfolio Purchase Price plus the portion of the Remarketing
Fee attributable to such Pledged Senior Notes will be remitted to the Purchase
Contract Agent for payment to the Holders of the related Corporate Units. The
Treasury Portfolio will be substituted for the Pledged Senior Notes and the
appropriate Applicable Ownership Interests (as specified in clause (i) of the
definition of such term) in the Treasury Portfolio will be pledged to the
Collateral Agent to secure the obligation of the Holders of Corporate Units to
pay the Purchase Price for the Common Stock under the related Purchase Contracts
on the Purchase Contract Settlement Date. With respect to Separate Senior Notes
upon a Successful Initial Remarketing, any proceeds of the Initial Remarketing
in excess of the portion of the Remarketing Fee attributable to the Separate
Senior Notes will be remitted to the Custodial Agent for payment to the holders
of Separate Senior Notes. None of the Company, the Purchase Contract Agent, or
any Holders of Corporate Units or holders of Separate Senior Notes whose Senior
Notes or Separate Senior Notes are so remarketed will otherwise be responsible
for the payment of any Remarketing Fee in connection therewith.
Following the occurrence of a Successful Initial Remarketing, the
Holders of Corporate Units and the Collateral Agent shall have such security
interests, rights and obligations with respect to the Applicable Ownership
Interests (as specified in clause (i) of the definition of such term) in the
Treasury Portfolio as the Holder of Corporate Units and the Collateral Agent had
in respect of the Senior Notes, subject to the Pledge thereof as provided in the
Pledge Agreement, and any reference herein or in the Certificates to the Senior
Notes shall be deemed to be a reference to such Applicable Ownership Interests
(as specified in clause (i) of the definition of that term) in the Treasury
Portfolio and any reference herein or in the Certificates to interest on the
Senior Notes shall be deemed to be a reference to corresponding distributions on
such Applicable Ownership Interests in the Treasury Portfolio. The Company may
cause to be made in any Corporate Units Certificates thereafter to be issued
such change in phraseology and form (but not in substance) as may be appropriate
to reflect the substitution of such Applicable Ownership Interests (as specified
in clause (i) of the definition of that term) in the Treasury Portfolio for
Senior Notes as Collateral.
In the event of a Successful Remarketing, the Maturity Date may be
extended to a date selected by the Company to a date that is two or three years
from the date on which the Reset Rate is set. Such extended maturity date (the
"EXTENDED MATURITY DATE"), if any, will be specified in the remarketing
announcement and will become effective on the date on which the Reset Rate is
set.
If, in spite of using its commercially reasonable efforts, the
Remarketing Agent cannot remarket the Pledged Senior Notes and the Separate
Senior Notes (if any) in the Initial Remarketing (other than to the Company) at
a price not less than 100% of the sum of the Treasury Portfolio Purchase Price
plus the Separate Senior Notes Purchase Price or a condition precedent set forth
in the Remarketing Agreement is not fulfilled, the Initial Remarketing will be
deemed to have failed (a "FAILED INITIAL REMARKETING"). Upon a Failed Initial
Remarketing, the Remarketing Agent shall return the Separate Senior Notes (if
any) subject to such Remarketing to the Custodial Agent.
39
(ii) Prior to 5:00 p.m. (New York City time) on the fifth Business
Day immediately preceding the applicable Remarketing Date, but no earlier than
the Payment Date immediately preceding such date, Holders of Separate Senior
Notes may elect to have their Separate Senior Notes remarketed under the
Remarketing Agreement by delivering their Separate Senior Notes, along with a
notice of such election, substantially in the form of Exhibit F to the Pledge
Agreement, to the Custodial Agent. The Custodial Agent shall hold Separate
Senior Notes in an account separate from the Collateral Account in which the
Pledged Senior Notes (as defined in the Pledge Agreement) shall be held. Holders
of Separate Senior Notes electing to have their Separate Senior Notes remarketed
will also have the right to withdraw that election by written notice to the
Custodial Agent, substantially in the form of Exhibit G to the Pledge Agreement,
on or prior to 5:00 p.m. (New York City time) on the fifth Business Day
immediately preceding the applicable Remarketing Date, upon which notice the
Custodial Agent shall return such Separate Senior Notes to such Holder. Promptly
after 11:00 a.m. on the Business Day immediately preceding the applicable
Remarketing Date, the Custodial Agent shall notify the Remarketing Agent of the
aggregate principal amount of the Separate Senior Notes to be remarketed. After
such time, such election shall become an irrevocable election to have such
Separate Senior Notes remarketed in such Remarketing.
(iii) Not later than seven calendar days nor more than 15 calendar
days prior to the applicable Remarketing Date, the Company shall request the
Depositary or its nominee to notify Depositary Participants holding Units and
Separate Senior Notes of the procedures to be followed in such Remarketing,
including in the case of a Failed Final Remarketing the procedures to be
followed to exercise Put Rights.
(iv) The Company agrees to use its reasonable best efforts to ensure
that, if required by applicable law, a registration statement with regard to the
full amount of the Senior Notes to be remarketed in the Initial Remarketing or
the Final Remarketing, as the case may be, shall be effective with the
Securities and Exchange Commission in a form that will enable the Remarketing
Agent to rely on it in connection with such Remarketing.
(v) The Company shall cause a notice of a Failed Remarketing to be
published (with a copy of such notice to be provided to the Purchase Contract
Agent) on the Business Day immediately following the applicable Remarketing
Date, in a daily newspaper in the English language of general circulation in the
City of New York, which is expected to be The Wall Street Journal.
(b) (i) Unless a Special Event Redemption, an Early Settlement or a
Cash Merger Early Settlement has occurred prior to the Final Remarketing Date,
if no Successful Remarketing has occurred prior to the Final Remarketing Date,
each Holder of Corporate Units shall have the right to satisfy such Holder's
obligations under the Purchase Contract on the Purchase Contract Settlement Date
in cash by notifying the Purchase Contract Agent by use of a notice in
substantially the form of Exhibit E hereto of its intention to pay in cash
("CASH SETTLEMENT") on or prior to 5:00 p.m. (New York City time) on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date.
Promptly following 5:00 p.m. (New York City time) on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, the Purchase
Contract Agent shall notify the Collateral Agent and the Indenture Trustee of
the receipt of such notices from Holders intending to make a Cash Settlement.
40
(ii) A Holder of a Corporate Unit who has so notified the Purchase
Contract Agent of its intention to effect a Cash Settlement shall pay the
Purchase Price to the Collateral Agent for deposit in the Collateral Account on
or prior to 5:00 p.m. (New York City time) on the fourth Business Day
immediately preceding the Purchase Contract Settlement Date, in lawful money of
the United States by certified or cashiers' check or wire transfer of
immediately available funds payable to or upon the order of the Securities
Intermediary. Any cash so received shall be invested promptly by the Securities
Intermediary in Permitted Investments and paid to the Company on the Purchase
Contract Settlement Date in settlement of the Purchase Contracts in accordance
with the terms of this Agreement and the Pledge Agreement. Any funds received by
the Securities Intermediary in respect of the investment earnings from such
Permitted Investments in excess of the Purchase Price for the shares of Common
Stock to be purchased by such Holder shall be distributed to the Purchase
Contract Agent when received for payment to the Holder.
(iii) If a Holder of a Corporate Unit does not notify the Purchase
Contract Agent of its intention to make a Cash Settlement in accordance with
Section 5.02(b)(ii) above, or does notify the Purchase Contract Agent in
accordance with Section 5.02(b)(i) above but fails to make such payment as
required by Section 5.02(b)(ii) above, such Holder shall be deemed to have
consented to the disposition of the Pledged Senior Notes pursuant to the Final
Remarketing as described in paragraph Section 5.02(c) below.
(iv) As soon as practicable after 5:00 p.m. (New York City time) on
the fourth Business Day preceding the Purchase Contract Settlement Date, the
Collateral Agent, based on cash payments received by the Collateral Agent
pursuant to Section 5.02(b)(ii) hereof, shall promptly notify the Purchase
Contract Agent and the Indenture Trustee of the aggregate principal amount of
Senior Notes to be tendered for purchase in the Remarketing in a notice pursuant
to the terms of the Pledge Agreement.
(c) (i) Unless a Special Event Redemption, an Early Settlement or a
Cash Merger Early Settlement has occurred prior to the Final Remarketing Date,
if a Failed Initial Remarketing has occurred, the Senior Notes of such Holders
of Corporate Units who have not notified the Purchase Contract Agent of their
intention to effect a Cash Settlement as provided in Section 5.02(b)(i) above,
or who have so notified the Purchase Contract Agent in accordance with Section
5.02(b)(i) above but have failed to make such payment as required by Section
5.02(b)(ii) above, and the Separate Senior Notes of any holder who has elected
for its Separate Senior Notes to be remarketed pursuant to Section 5.02(a)(ii)
will be remarketed by the Remarketing Agent (the "FINAL REMARKETING") on the
third Business Day immediately preceding the Purchase Contract Settlement Date
(the "FINAL REMARKETING DATE"). In order to facilitate the Final Remarketing,
the Purchase Contract Agent, based on the notices specified in Section
5.02(b)(iv), and the Collateral Agent, based on the notices specified in Section
5.02(a)(ii), shall notify the Remarketing Agent, by 11:00 a.m. (New York City
time) on the Business Day immediately preceding the Final Remarketing Date, of
the aggregate principal amount of Pledged Senior Notes or aggregate principal
amount of Separate Senior Notes that are to be remarketed pursuant to Section
5.02(a)(ii), as the case may be, to be remarketed. Concurrently, the Custodial
Agent will present for remarketing the Separate Senior Notes to the Remarketing
Agent.
41
(ii) Upon receipt of such notice from the Purchase Contract Agent
and the Collateral Agent and the Separate Senior Notes (if any) from the
Custodial Agent, as set forth in clause (i) above, the Remarketing Agent shall,
on the Final Remarketing Date, use its commercially reasonable efforts to
remarket (based on the Reset Rate) such Pledged Senior Notes and the Separate
Senior Notes on such date at a price equal to approximately 100.25% (or, if the
Remarketing Agent is unable to remarket the Pledged Senior Notes and the
Separate Senior Notes at such rate, at a rate below 100.25% but in no event less
than 100%) of the aggregate principal amount of such Senior Notes and Separate
Senior Notes being remarketed, as provided in the Remarketing Agreement. If the
Remarketing Agent is able to remarket the Pledged Senior Notes and Separate
Senior Notes at a price equal to or greater than 100% of the aggregate principal
amount of the Pledged Senior Notes and Separate Senior Notes (if any) (a
"SUCCESSFUL FINAL REMARKETING"), the Collateral Agent shall, in accordance with
the Pledge Agreement, cause the Securities Intermediary to transfer the Pledged
Senior Notes upon confirmation of deposit by the Remarketing Agent of the
proceeds of such Successful Remarketing in the Collateral Account. The
Remarketing Agent will deduct as the remarketing fee an amount equal to the
lesser of (x) 25 basis points (.25%) of the aggregate principal amount of the
remarketed Pledged Senior Notes and Separate Senior Notes (if any) and (y) any
proceeds of such Successful Final Remarketing in excess of the aggregate
principal amount of the remarketed Pledged Senior Notes and Separate Senior
Notes. To the extent that such amount is less than 25 basis points of the
aggregate principal amount of the remarketed Pledged Senior Notes and Separate
Senior Notes, the Company shall pay an amount, as an additional remarketing fee,
equal to such shortfall (such amount, together with the amount in the previous
sentence, the "FINAL REMARKETING FEE"). The proceeds from the Remarketing
remitted to the Collateral Agent shall be invested by the Collateral Agent in
Permitted Investments, in accordance with the Pledge Agreement, and then applied
to satisfy in full the obligations of such Holders of Corporate Units to pay the
Purchase Price for the shares of Common Stock under the related Purchase
Contracts on the Purchase Contract Settlement Date. Any proceeds in excess of
those required to pay the Purchase Price and the portion of the Final
Remarketing Fee attributable to the Senior Notes will be remitted to the
Purchase Contract Agent for payment to the Holders of the related Corporate
Units. With respect to Separate Senior Notes upon a Successful Final
Remarketing, any proceeds of the Final Remarketing in excess of the portion of
the Final Remarketing Fee attributable to the Separate Senior Notes will be
remitted to the Custodial Agent for payment to the holders of Separate Senior
Notes.
(iii) If, in spite of using its commercially reasonable efforts, the
Remarketing Agent cannot remarket the Pledged Senior Notes and Separate Senior
Notes (if any) in the Final Remarketing at a price not less than 100% of the
aggregate principal amount of the Pledged Senior Notes and Separate Senior Notes
to be remarketed in the Final Remarketing (other than to the Company) or a
condition precedent set forth in the Remarketing Agreement is not fulfilled, the
Final Remarketing will be deemed to have failed (a "FAILED FINAL REMARKETING").
Following a Failed Final Remarketing, as of the Purchase Contract Settlement
Date, each Holder of any Pledged Senior Notes unless such Holder has elected
Cash Settlement and delivered cash in accordance with Section 5.02(e)(ii) shall
be deemed to have exercised such Holder's Put Right with respect to such Senior
Notes and to have elected to have a portion of the Proceeds of the Put Right
set-off against such Holder's obligation to pay the aggregate Purchase Price for
the shares of Common Stock to be issued under the related Purchase Contracts in
full satisfaction of such Holders' obligations under such Purchase Contracts.
Following such set-off, each such Holder's
42
obligations to pay the Purchase Price for the shares of Common Stock will be
deemed to be satisfied in full, and the Collateral Agent shall cause the
Securities Intermediary to release the Pledged Senior Notes from the Collateral
Account and shall promptly transfer the Pledged Senior Notes to the Company.
Thereafter, the Collateral Agent shall promptly remit the remaining portion of
the Proceeds of the Holder's exercise of the Put Right in excess of the
aggregate Purchase Price for the shares of Common Stock to be issued under such
Purchase Contracts to the Purchase Contract Agent for payment to the Holder of
the Corporate Units to which such Senior Notes relate.
(d) As soon as practicable after 5:00 p.m. (New York City time) on
the fourth Business Day preceding the Purchase Contract Settlement Date, the
Collateral Agent, based on cash payments received by the Collateral Agent
pursuant to Section 5.02(b)(ii) hereof, shall promptly notify the Purchase
Contract Agent and the Indenture Trustee of the aggregate principal amount of
Senior Notes to be tendered for purchase in the Final Remarketing in a notice
pursuant to the terms of the Pledge Agreement.
(e) (i) Each Holder of a Corporate Unit who intends to effect a Cash
Settlement of the underlying Purchase Contract following a Failed Final
Remarketing shall so notify the Purchase Contract Agent by use of a notice in
substantially the form of Exhibit E hereto prior to 5:00 p.m. (New York City
time) on the second Business Day immediately preceding the Purchase Contract
Settlement Date. Promptly following 5:00 p.m. (New York City time) on the second
Business Day immediately preceding the Purchase Contract Settlement Date, the
Purchase Contract Agent shall notify the Collateral Agent and the Indenture
Trustee of the receipt of such notices from Holders intending to make a Cash
Settlement.
(ii) A Holder of a Corporate Unit who has so notified the Purchase
Contract Agent of its intention to effect a Cash Settlement shall pay the
Purchase Price to the Collateral Agent for deposit in the Collateral Account
prior to 5:00 p.m. (New York City time) on the Business Day immediately
preceding the Purchase Contract Settlement Date, in lawful money of the United
States by certified or cashiers' check or wire transfer, in each case in
immediately available funds payable to or upon the order of the Securities
Intermediary. Any cash so received shall be invested promptly by the Securities
Intermediary in Permitted Investments and paid to the Company on the Purchase
Contract Settlement Date in settlement of the Purchase Contracts in accordance
with the terms of this Agreement and the Pledge Agreement. Any funds received by
the Securities Intermediary in respect of the investment earnings from such
Permitted Investments in excess of the Purchase Price for the shares of Common
Stock to be purchased by such Holder shall be distributed to the Purchase
Contract Agent when received for payment to the Holder.
(iii) If a Holder of a Corporate Unit does not notify the Purchase
Contract Agent of its intention to make a Cash Settlement in accordance with
Section 5.02(a)(i) above, or does notify the Purchase Contract Agent in
accordance with Section 5.02(a)(i) above but fails to make such payment as
required by Section 5.02(a)(ii) above, such Holder shall be deemed to have
automatically exercised such Holder's Put Right following a Failed Final
Remarketing as described in paragraph Section 5.02(c)(iii) above.
43
(f) As soon practicable after 5:00 p.m. (New York city time) on the
Business Day preceding the Purchase Contract Settlement Date, the Collateral
Agent, based on cash payment received by the Collateral Agent pursuant to
Section 5.02(e)(ii) hereof, shall promptly notify the Purchase Contract Agent
and the Indenture Trustee of the aggregate principal amount of Senior Notes
pursuant to which a Put Right has been automatically exercised pursuant to
Section 5.02(c)(iii) hereof.
(g) Any distribution to Holders of any payments described above
shall be payable at the office of the Purchase Contract Agent in New York City
maintained for that purpose or, at the option of the Holder, by check mailed to
the address of the Person entitled thereto at such address as it appears on the
Security Register.
(h) Upon Cash Settlement of any Purchase Contract:
(i) the Collateral Agent will in accordance with the terms of the
Pledge Agreement cause the Pledged Senior Notes or, the appropriate
Applicable Ownership Interests (as specified in clause (i) of the
definition of such term) in the Treasury Portfolio, as the case may be,
underlying the relevant Units to be released from the Pledge, free and
clear of any security interest of the Company, and transferred to the
Purchase Contract Agent for delivery to the Holder thereof or its designee
as soon as reasonably practicable; and
(ii) subject to the receipt thereof, the Purchase Contract Agent
shall, by book-entry transfer or other appropriate procedures, in
accordance with written instructions provided by the Holder thereof,
transfer such Senior Notes, or the appropriate Applicable Ownership
Interests (as specified in clause (i) of the definition of such term) in
the Treasury Portfolio, as the case may be (or, if no such instructions
are given to the Purchase Contract Agent by the Holder, the Purchase
Contract Agent shall hold such Senior Notes, or the appropriate Applicable
Ownership Interests (as specified in clause (i) of the definition of such
term) in the Treasury Portfolio, as the case may be, and any interest
payment thereon, in the name of the Purchase Contract Agent or its nominee
in trust for the benefit of such Holder until the expiration of the time
period specified in the abandoned property laws of the relevant state
where such property is held).
(i) The obligations of the Holders to pay the Purchase Price are
non-recourse obligations and, except to the extent satisfied by Early
Settlement, Cash Merger Early Settlement or Cash Settlement, are payable solely
out of the proceeds of any Collateral pledged to secure the obligations of the
Holders, and in no event will Holders be liable for any deficiency between the
Proceeds of the disposition of Collateral and the Purchase Price.
(j) The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates thereof to
the Holder of the related Units unless the Company shall have received payment
for the Common Stock to be purchased thereunder in the manner herein set forth.
44
Section 5.03. Issuance of Shares of Common Stock.
Unless a Termination Event, an Early Settlement or a Cash Merger
Early Settlement shall have occurred, subject to Section 5.04(b)(ii), on the
Purchase Contract Settlement Date upon receipt of the aggregate Purchase Price
payable on all Outstanding Units, the Company shall issue and deposit with the
Purchase Contract Agent, for the benefit of the Holders of the Outstanding
Units, one or more certificates representing newly issued shares of Common Stock
registered in the name of the Purchase Contract Agent (or its nominee) as
custodian for the Holders (such certificates for shares of Common Stock,
together with any dividends or distributions for which a record date and payment
date for such dividend or distribution has occurred after the Purchase Contract
Settlement Date, being hereinafter referred to as the "PURCHASE CONTRACT
SETTLEMENT FUND") to which the Holders are entitled hereunder.
Subject to the foregoing, upon surrender of a Certificate to the
Purchase Contract Agent on or after the Purchase Contract Settlement Date, Early
Settlement Date or Cash Merger Early Settlement Date, as the case may be,
together with settlement instructions thereon duly completed and executed, the
Holder of such Certificate shall be entitled to receive forthwith in exchange
therefor a certificate representing that number of newly issued whole shares of
Common Stock which such Holder is entitled to receive pursuant to the provisions
of this Article 5 (after taking into account all Units then held by such
Holder), together with cash in lieu of fractional shares as provided in Section
5.09 and any dividends or distributions with respect to such shares constituting
part of the Purchase Contract Settlement Fund, but without any interest thereon,
and the Certificate so surrendered shall forthwith be cancelled. Such shares
shall be registered in the name of the Holder or the Holder's designee as
specified in the settlement instructions provided by the Holder to the Purchase
Contract Agent. If any shares of Common Stock issued in respect of a Purchase
Contract are to be registered to a Person other than the Person in whose name
the Certificate evidencing such Purchase Contract is registered (but excluding
any Depositary or nominee thereof), no such registration shall be made unless
the Person requesting such registration has paid any transfer and other taxes
required by reason of such registration in a name other than that of the
registered Holder of the Certificate evidencing such Purchase Contract or has
established to the satisfaction of the Company that such tax either has been
paid or is not payable.
Section 5.04. Certain Adjustments.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(i) In case the Company shall pay or make a dividend or other
distribution on Common Stock in Common Stock, each Fixed Settlement Rate in
effect at the close of business on the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution shall be
increased by dividing such Fixed Settlement Rate by a fraction of which:
(A) 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
(B) the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other
distribution,
45
such increase to become effective immediately at the opening of business on the
day following the date fixed for such determination. For the purposes of this
paragraph (i), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
any shares issuable in respect of any scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company agrees that it shall not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
(ii) In case the Company shall issue rights, warrants or options,
other than pursuant to any dividend reinvestment plans or share purchase plans,
to all holders of its Common Stock (not being available on an equivalent basis
to Holders of the Units upon settlement of the Purchase Contracts underlying
such Units) entitling them, for a period expiring within 45 days after the
record date for the determination of stockholders entitled to receive such
rights, warrants or options, to subscribe for or purchase shares of Common Stock
at a price per share less than the Current Market Price per share of Common
Stock on the date of announcement of such issuance, each Fixed Settlement Rate
in effect at the close of business on the date of such announcement shall be
increased by dividing such Fixed Settlement Rate by a fraction of which:
(C) the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date of such announcement plus
the number of shares of Common Stock that 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
(D) the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date of such announcement 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 Business Day following the date of such announcement. The Company agrees
that it shall notify the Purchase Contract Agent if any issuance of such rights,
warrants or options is cancelled or not completed following the announcement
thereof and each Fixed Settlement Rate shall thereupon be readjusted to the
Fixed Settlement Rate in effect immediately prior to the date of such
announcement. For the purposes of this paragraph (ii), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include any shares issuable in respect of any
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company agrees that it shall not issue any such rights, warrants or options in
respect of shares of Common Stock held in the treasury of the Company.
(iii) In case outstanding shares of Common Stock shall be subdivided
or split into a greater number of shares of Common Stock, each Fixed Settlement
Rate in effect at the close of business on the day preceding 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, such Settlement Rate
in effect at the close of business on the day preceding the day upon which such
combination becomes effective shall be proportionately reduced, such increase or
reduction, as
46
the case may be, to become effective immediately at the opening of business on
the day following the day upon which such subdivision, split or combination
becomes effective.
(iv) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its indebtedness or assets
(including shares of capital stock, securities, cash and property but excluding
any rights, warrants or options referred to in paragraph (ii) of this Section
5.04(a), any dividend or distribution paid exclusively in cash and any dividend
or distribution referred to in paragraph (i) of this Section 5.04(a)), each
Fixed Settlement Rate in effect at the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution shall be
adjusted by dividing such rate by a fraction of which:
(A) the numerator shall be the Current Market Price per share of
Common Stock on the date fixed for such determination less the then fair
market value (as determined by the Board of Directors, whose determination
shall be conclusive and the basis for which shall be generally described
in a Board Resolution) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of Common Stock; and
(B) the denominator shall be such Current Market Price per share of
Common Stock,
such adjustment to become effective at 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 (iv) is
applicable, paragraph (ii) of this Section 5.04(a) shall not be applicable. In
the event that such dividend or distribution is not so paid or made, each Fixed
Settlement Rate shall again be adjusted to be the Fixed Settlement Rate that
would then be in effect if such dividend or distribution had not been declared.
(v) In case the Company or any of its subsidiaries shall, by
dividend or otherwise, make distributions consisting exclusively of cash to all
holders of its Common Stock, excluding any cash dividend or distribution on the
Common Stock to the extent that the aggregate cash dividend or distribution per
share of Common Stock in any quarter does not exceed $[ ] (the "DIVIDEND
THRESHOLD AMOUNT") (the Dividend Threshold Amount is subject to adjustment
whenever the Fixed Settlement Rate is adjusted, which adjustment shall be the
inverse of the adjustment made to the Fixed Settlement Rate, provided that no
adjustment shall be made to the Dividend Threshold Amount for any adjustment
made pursuant to this Section 5.04(a)(v)) then, in such case, each Fixed
Settlement Rate in effect at the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution dividend or
distribution shall be adjusted by dividing such rate by a fraction of which:
(A) the numerator shall be the Current Market Price on such date
less the amount of cash so distributed applicable to one share of Common
Stock in excess of the Dividend Threshold Amount; and
(B) the denominator shall be the Current Market Price on such date,
47
such adjustment to be effective at the opening of business on the day following
the date fixed for the determination of stockholders entitled to receive such
dividend or distribution; provided that if the portion of the cash so
distributed applicable to one share of Common Stock in excess of the Dividend
Threshold Amount is equal to or greater than the Current Market Price on such
date, in lieu of the foregoing adjustment, adequate provision shall be made so
that each holder of a Unit shall have the right to receive upon settlement of
the Units such excess amount. In the event that such dividend or distribution is
not so paid or made, each Fixed Settlement Rate shall again be adjusted to be
the Fixed Settlement Rate that would then be in effect if such dividend or
distribution had not been declared.
(vi) In case 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 of consideration per share of
Common Stock having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a resolution
of the Board of Directors) that as of the last time (the "EXPIRATION TIME")
tenders or exchanges may be made pursuant to such tender or exchange offer (as
it may be amended) exceeds the Closing Price of a share of Common Stock on the
Trading Day next succeeding the Expiration Time, each Fixed Settlement Rate
shall be increased so that the same shall equal the rate determined by dividing
such Fixed Settlement Rate in effect immediately prior to the Expiration Time by
a fraction,
(A) the numerator of which shall be equal to the product of (x) the
Current Market Price of a share of Common Stock as of the Expiration Time
and (y) the number of shares of Common Stock outstanding (including any
shares accepted in terms of the tender or exchange offer, such shares
being referred to as the "PURCHASED SHARES") at the Expiration Time less
the fair market value (determined by the Board of Directors as aforesaid)
of the aggregate consideration payable to stockholders for all Purchased
Shares, and
(B) the denominator of which shall be the product of the number of
shares of Common Stock outstanding at the Expiration Time less (x) any
Purchased Shares and (y) the Current Market Price of a share of Common
Stock at the Expiration Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Expiration Time. If the Company is obligated to
purchase shares pursuant to any such tender or exchange offer, but the Company
is permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, each Fixed Settlement Rate shall again be
adjusted to be the Fixed Settlement Rate that would then be in effect if such
tender or exchange offer had not been made.
(vii) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 5.04(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
48
date fixed for the determination of stockholders entitled to receive such
distribution" and the "date fixed for such determination" within the
meaning of paragraph (iv) 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
(iii) of this Section).
(viii) The "CURRENT MARKET PRICE" per share of Common Stock on any
date of determination means the average of the daily Closing Prices for the ten
Trading Days ending on the earlier of such date of determination and the day
before the "ex date" with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "EX DATE," when used with
respect to any issuance or distribution, shall mean the first date on which
Common Stock trades regular way on such exchange or in such market without the
right to receive such issuance or distribution.
(ix) All adjustments to the Fixed Settlement Rate shall be
calculated to the nearest 1/10,000th of a share of Common Stock (or if there is
not a nearest 1/10,000th of a share, to the next lower 1/10,000th of a share).
No adjustments in the Settlement Rate shall be required unless such adjustment
would require an increase or decrease of at least one percent thereof; provided,
however, that any adjustment which by reason of this subparagraph are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment.
(x) The Company may, but shall not be required to, make such
increases in the Fixed Settlement Rate, in addition to those required by this
Section, as the Board of Directors considers to be advisable in order to avoid
or diminish any income tax to any holders of shares of Common Stock resulting
from any dividend or distribution of stock or issuance of rights or warrants to
purchase or subscribe for stock or from any event treated as such for income tax
purposes or for any other reason. Any such adjustment to the Fixed Settlement
Rate shall be proportionally made to both the Maximum Share Number and the
Minimum Share Number.
(xi) The Company has entered into a Rights Agreement dated as of
December 9, 1996, as amended (the "RIGHTS AGREEMENT"), with American Stock
Transfer & Trust Company pursuant to which share purchase rights (the "RIGHTS")
have been, and may in the future be, issued in respect of shares of Common
Stock. Each share of Common Stock issued upon settlement of any Purchase
Contract pursuant to this Article 5 shall be entitled to receive the appropriate
number of Rights, if any, and the certificates representing the Common Stock
issued upon such settlement shall bear such legends, if any, in each case as
provided by and subject to the terms of the Rights Agreement as in effect at the
time of such settlement. If after the date of this Agreement the Rights separate
from the Common Stock in accordance with the provisions of the Rights Agreement
so that a Holder would not be entitled to receive any Rights in respect of the
Common Stock issuable upon settlement of such Purchase Contract, the Settlement
Rate will be adjusted as provided in this Section 5.04 on the separation date,
subject
49
to readjustment in the event of the expiration, termination or redemption of the
Rights. In lieu of any such adjustment, the Company may amend the Rights
Agreement to provide that upon settlement Holders will receive, in addition to
the Common Stock issuable upon such settlement, the Rights that would have
attached to such shares of Common Stock if the Rights had not become separated
from the Common Stock pursuant to the provisions of the Rights Agreement. If the
Company hereafter adopts any stockholder rights plan similar to the Rights
Agreement, a Holder shall be entitled to receive upon settlement of its Purchase
Contracts in addition to the shares of Common Stock issuable upon settlement the
related rights for the Common Stock, whether or not the rights under the future
stockholder rights plan have separated from the Common Stock at the time of
settlement, but otherwise subject to the generally applicable terms of such
plan, and no additional adjustment to the Settlement Rate shall be made for the
future stockholder rights plan under this Section 5.04.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event.
(i) In the event of:
(A) any consolidation or merger of the Company with or into another
Person (other than a merger or consolidation in which the Company is the
continuing corporation and in which the shares of Common Stock outstanding
immediately prior to the merger or consolidation are not exchanged for
cash, securities or other property of the Company or another corporation);
(B) any sale, transfer, lease or conveyance to another Person of the
property of the Company as an entirety or substantially as an entirety;
(C) any statutory share exchange of the Company with another Person
(other than in connection with a merger or acquisition); or
(D) any liquidation, dissolution or termination of the Company other
than as a result of or after the occurrence of a Termination Event (any
event described in clauses (A), (B), (C) and (D), a "REORGANIZATION
EVENT"),
the Settlement Rate will be adjusted to provide that each Holder of Units will
receive on the Purchase Contract Settlement Date with respect to each Purchase
Contract forming a part thereof, the kind and amount of securities, cash and
other property receivable upon such Reorganization Event (without any interest
thereon, and without any right to dividends or distribution thereon which have a
record date that is prior to the Purchase Contract Settlement Date) by a Holder
of the one share of Common Stock (the "EXCHANGE PROPERTY"). The kind and amount
of Exchange Property will be determined assuming such Holder of Common Stock is
not a Person with which the Company consolidated or into which the Company
merged or which merged into the Company or to which such sale or transfer was
made, as the case may be (any such Person, a "CONSTITUENT PERSON"), or an
Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Stock held by Affiliates of the
Company and non-affiliates and such Holder failed to exercise its rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such Reorganization Event (provided that if the kind or
amount of securities, cash and other property receivable upon
50
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 5.04(b)(i) the kind and amount of securities, cash and other
property receivable upon such Reorganization Event by each non-electing share
shall be deemed to be the kind and amount so receivable per share by a plurality
of the non-electing shares).
The actual amount of Exchange Property receivable upon settlement of
each Purchase Contract shall be (1) in the case of settlement on the Purchase
Contract Settlement Date or pursuant to Section 5.04(b)(ii), a variable amount
based upon the applicable Settlement Rate and the Applicable Market Value of the
Exchange Property at such time and (2) in the case of any Early Settlement,
determined in accordance with the procedures described under Section 5.07 using
the Settlement Rate that results in the minimum amount of Exchange Property
being delivered under such Purchase Contract.
For purposes of this Section 5.04(b)(i) and Section 5.04(b)(ii), the
term "Applicable Market Value" shall be deemed to refer to the "Applicable
Market Value" of the Exchange Property, and such value shall be determined (A)
with respect to any publicly traded securities that compose all or part of the
Exchange Property, based on the Closing Price of such securities, (B) in the
case of any cash that composes all or part of the Exchange Property, based on
the amount of such cash and (C) in the case of any other property that composes
all or part of the Exchange Property, based on the value of such property, as
determined by a nationally recognized independent investment banking firm
retained by the Company for this purpose; provided that prior to the separation
of the Rights or any similar stockholder rights from the Common Stock, such
Rights or similar stockholder rights shall be deemed to have no value. The term
"Closing Price" shall be deemed to refer to the closing sale price, last quoted
bid price or mid-point of the last bid and ask prices, as the case may be, of
any publicly traded securities that comprise all or part of the Exchange
Property. The term "Trading Day" shall be deemed to refer to any publicly traded
securities that comprise all or part of the Exchange Property.
In the event of such a Reorganization Event, the Person formed by
such consolidation, merger or exchange or the Person which acquires the assets
of the Company or, in the event of a liquidation, dissolution or termination of
the Company, the Company or a liquidating trust created in connection therewith,
shall execute and deliver to the Purchase Contract Agent an agreement
supplemental hereto providing that each Holder of an Outstanding Unit shall have
the rights provided by this Section 5.04(b)(i). Such supplemental agreement
shall provide for adjustments which, for events subsequent to the effective date
of such supplemental agreement, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 5.04. The above
provisions of this Section 5.04 shall similarly apply to successive
Reorganization Events.
(ii) In the event of a consolidation or merger of the Company with
or into another Person (other than a consolidation or merger that does not
result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock), in each case in which 30% or more of the
total consideration paid to the Company's stockholders consists of cash or cash
equivalents (a "CASH Merger"), then a Holder of a Unit may settle ("CASH MERGER
EARLY SETTLEMENT") its Purchase Contract, upon the conditions set forth below,
at the Settlement
51
Rate in effect immediately prior to the closing of the Cash Merger; provided
that (A) the Cash Merger Early Settlement Date (as defined below) is no later
than the fifth Business Day immediately preceding the Purchase Contract
Settlement Date and (B) no Cash Merger Early Settlement will be permitted
pursuant to this Section 5.04(b)(ii) unless, at the time such Cash Merger Early
Settlement is effected, there is an effective Registration Statement with
respect to any securities to be issued and delivered in connection with such
Cash Merger Early Settlement, if such a Registration Statement is required (in
the view of counsel, which need not be in the form of a written opinion, for the
Company) under the Securities Act. If such a Registration Statement is so
required, the Company covenants and agrees to use reasonable best efforts to (x)
have in effect a Registration Statement covering any securities to be delivered
in respect of the Purchase Contracts being settled and (y) provide a Prospectus
in connection therewith, in each case in a form that may be used in connection
with such Cash Merger Early Settlement.
Within five Business Days of the completion of a Cash Merger, the
Company shall provide written notice to Holders of Units of such completion of a
Cash Merger, which shall specify the deadline for submitting the notice to
settle early in cash pursuant to this Section 5.04(b)(ii), the date on which
such Cash Merger Early Settlement shall occur (which date shall be 10 days after
the date of such written notice by the Company, but which shall in no event be
later than the earlier of the 20th day after the date of such notice and the
fifth Business Day immediately preceding the Purchase Contract Settlement Date)
(the "CASH MERGER EARLY SETTLEMENT DATE"), the applicable Settlement Rate and
the amount (per share of Common Stock) of cash, securities and other
consideration receivable by the Holder upon settlement. In addition, if a Holder
effects a Cash Merger Early Settlement of some or all of its Purchase Contracts,
such Holder shall be entitled to receive, on the Cash Merger Early Settlement
Date, the aggregate amount of any accrued and unpaid Contract Adjustment
Payments since the immediately preceding Payment Date with respect to such
Purchase Contracts. The Company shall pay such amount as a credit against the
amount otherwise payable by the Holders to effect such Cash Merger Early
Settlement.
Corporate Units Holders and Treasury Units Holders may only effect
Cash Merger Early Settlement pursuant to this Section 5.04(b)(ii) in integral
multiples of 40 Corporate Units or Treasury Units, as the case may be. If the
Treasury Portfolio has replaced the Senior Notes as a component of the Corporate
Units, Corporate Units Holders may only effect Cash Merger Early Settlement
pursuant to this Section 5.04(b)(ii) in multiples of [ ] Corporate Units. Other
than the provisions relating to timing of notice and settlement, which shall be
as set forth above, the provisions of Section 5.01(a) shall apply with respect
to a Cash Merger Early Settlement pursuant to this Section 5.04(b)(ii).
In order to exercise the right to effect Cash Merger Early
Settlement with respect to any Purchase Contracts, the Holder of the Certificate
evidencing Units shall deliver, no later than 5:00 p.m. (New York City time) on
the third Business Day immediately preceding the Cash Merger Early Settlement
Date, such Certificate to the Purchase Contract Agent at the Corporate Trust
Office duly endorsed for transfer to the Company or in blank with the form of
Election to Settle Early on the reverse thereof duly completed and accompanied
by payment (payable to the Company in immediately available funds) in an amount
equal to the product of (A) the Stated Amount times (B) the number of Purchase
Contracts with respect to which the Holder has
52
elected to effect Cash Merger Early Settlement, less any credit in respect of
Contract Adjustment Payments as set forth above.
If a Holder properly effects an effective Cash Merger Early
Settlement in accordance with the provisions of this Section 5.04(b)(ii), the
Company will deliver (or will cause the Collateral Agent to deliver) to the
Holder on the Cash Merger Early Settlement Date:
(A) the kind and amount of securities, cash and other property
receivable upon such Cash Merger by a Holder of the number of shares of
Common Stock issuable on account of each Purchase Contract if the Purchase
Contract Settlement Date had occurred immediately prior to such Cash
Merger (based on the Settlement Rate in effect at such time), assuming
such Holder of Common Stock is not a Constituent Person or an Affiliate of
a Constituent Person to the extent such Cash Merger provides for different
treatment of Common Stock held by Affiliates of the Company and
non-affiliates and such Holder failed to exercise its rights of election,
if any, as to the kind or amount of securities, cash and other property
receivable upon such Cash Merger (provided that if the kind or amount of
securities, cash and other property receivable upon such Cash Merger is
not the same for each non-electing share, then for the purpose of this
Section 5.04(b)(ii), the kind and amount of securities, cash and other
property receivable upon such Cash Merger 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). For the avoidance of doubt, for the purposes
of determining the Adjusted Applicable Market Value (in connection with
determining the appropriate Settlement Rate to be applied in the foregoing
sentence), the date of the closing of the Cash Merger shall be deemed to
be the Purchase Contract Settlement Date;
(B) the Senior Notes, the Applicable Ownership Interests in the
Treasury Portfolio or Treasury Securities, as the case may be, related to
the Purchase Contracts with respect to which the Holder is effecting a
Cash Merger Early Settlement; and
(C) if so required under the Securities Act, a Prospectus as
contemplated by this Section 5.04(b)(ii).
(c) All calculations and determinations pursuant to this Section
5.04 shall be made by the Company or its agent and the Purchase Contract Agent
shall have no responsibility with respect thereto.
(d) The Corporate Units or the Treasury Units of the Holders who do
not elect Cash Merger Early Settlement in accordance with the foregoing will
continue to remain outstanding and be subject to settlement on the Purchase
Contract Settlement Date in accordance with the terms hereof.
Section 5.05. Notice of Adjustments and Certain Other Events.
(a) Whenever the Fixed Settlement Rate is adjusted as provided under
Section 5.04(a), or the Settlement Rate is adjusted under Section 5.04(b), the
Company shall within 10 Business Days following the occurrence of an event that
requires such adjustment (or if the
53
Company is not aware of such occurrence, as soon as reasonably practicable after
becoming so aware):
(i) compute the adjusted Fixed Settlement Rate or Settlement Rate,
as the case may be, in accordance with Section 5.04 and prepare and
transmit to the Purchase Contract Agent an Officers' Certificate setting
forth the Fixed Settlement Rate or Settlement Rate, as the case may be,
the method of calculation thereof in reasonable detail, and the facts
requiring such adjustment and upon which such adjustment is based; and
(ii) provide a written notice to the Holders of the Units of the
occurrence of such event and a statement in reasonable detail setting
forth the method by which the adjustment to the Fixed Settlement Rate or
Settlement Rate, as the case may be, was determined and setting forth the
adjusted Fixed Settlement Rate or Settlement Rate, as the case may be.
(b) The Purchase Contract Agent shall not at any time be under any
duty or responsibility to any Holder of Units to determine whether any facts
exist which may require any adjustment of the Fixed Settlement Rate or
Settlement Rate, as the case may be, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method
employed in making the same. The Purchase Contract Agent shall be fully
authorized and protected in relying on any Officers' Certificate delivered
pursuant to Section 5.05(a)(i) and any adjustment contained therein and the
Purchase Contract Agent shall not be deemed to have knowledge of any adjustment
unless and until it has received such certificate. The Purchase Contract 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 Purchase Contract Agent makes no representation with respect thereto.
The Purchase Contract Agent shall not be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock pursuant to a
Purchase Contract or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article.
Section 5.06. Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Contract
Adjustment Payments (including any accrued and unpaid Contract Adjustment
Payments), if the Company shall have such obligation, and the rights and
obligations of Holders to purchase Common Stock, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Purchase Contract Agent or the Company, if, prior to or on the
Purchase Contract Settlement Date, a Termination Event shall have occurred.
Upon and after the occurrence of a Termination Event, the Units
shall thereafter represent the right to receive the Senior Notes, the Treasury
Securities or the appropriate Applicable Ownership Interests in the Treasury
Portfolio, as the case may be, forming part of such Units, in accordance with
the provisions of Section 5.04 of the Pledge Agreement. Upon
54
the occurrence of a Termination Event, the Company shall promptly but in no
event later than two Business Days thereafter give written notice to the
Purchase Contract Agent, the Collateral Agent and the Holders, at their
addresses as they appear in the Security Register.
Section 5.07. Early Settlement.
(a) Subject to and upon compliance with the provisions of this
Section 5.07, at the option of the Holder thereof, Purchase Contracts underlying
Units having an aggregated Stated Amount equal to $1,000 or an integral multiple
thereof may be settled early ("EARLY SETTLEMENT") at any time on or prior to
5:00 p.m. (New York City time) on the fifth Business Day immediately preceding
the Purchase Contract Settlement Date; provided that no Early Settlement will be
permitted pursuant to this Section 5.07 unless, at the time such Early
Settlement is effected, there is an effective Registration Statement with
respect to any securities to be issued and delivered in connection with such
Early Settlement, if such a Registration Statement is required (in the view of
counsel, which need not be in the form of a written opinion, for the Company)
under the Securities Act. If such a Registration Statement is so required, the
Company covenants and agrees to use reasonable best efforts to (i) have in
effect a Registration Statement covering any securities to be delivered in
respect of the Purchase Contracts being settled and (ii) provide a Prospectus in
connection therewith, in each case in a form that may be used in connection with
such Early Settlement.
(b) In order to exercise the right to effect Early Settlement with
respect to any Purchase Contracts, the Holder of the Certificate evidencing
Units shall deliver, at any time prior to 5:00 p.m. (New York City time) on the
fifth Business Day immediately preceding the Purchase Contract Settlement Date,
such Certificate to the Purchase Contract Agent at the Corporate Trust Office
duly endorsed for transfer to the Company or in blank with the form of Election
to Settle Early on the reverse thereof duly completed and accompanied by payment
(payable to the Company in immediately available funds) in an amount (the "EARLY
SETTLEMENT AMOUNT") equal to the sum of:
(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 Contract Adjustment Payments payable on such
Payment Date with respect to such Purchase Contracts.
Except as provided in the immediately preceding sentence, no payment
shall be made upon Early Settlement of any Purchase Contract on account of any
Contract Adjustment Payments accrued on such Purchase Contract or on account of
any dividends on the Common Stock issued upon such Early Settlement. If the
foregoing requirements are first satisfied with respect to Purchase Contracts
underlying any Units on 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 Units
and if such requirements are first satisfied after 5:00 p.m. (New York City
time) on a
55
Business Day or on a day that is not a Business Day, the "EARLY SETTLEMENT Date"
with respect to such Units shall be the next succeeding Business Day.
Upon the receipt of such Certificate and Early Settlement Amount
from the Holder, the Purchase Contract Agent shall pay to the Company such Early
Settlement Amount, the receipt of which payment the Company shall confirm in
writing. The Purchase Contract Agent shall then, in accordance with Section 5.06
of the Pledge Agreement, notify the Collateral Agent that (A) such Holder has
elected to effect an Early Settlement, which notice shall set forth the number
of such Purchase Contracts as to which such Holder has elected to effect Early
Settlement, (B) the Purchase Contract Agent has received from such Holder, and
paid to the Company as confirmed in writing by the Company, the related Early
Settlement Amount and (C) all conditions to such Early Settlement have been
satisfied.
Holders of Treasury Units may only effect Early Settlement pursuant
to this Section 5.07 in integral multiples of 40 Treasury Units. If the Treasury
Portfolio has replaced the Senior Notes as a component of the Corporate Units,
Corporate Units Holders may only effect Early Settlement pursuant to this
Section 5.07 in integral multiples of [ ] Corporate Units.
Upon Early Settlement of the Purchase Contracts, the rights of the
Holders to receive and the obligation of the Company to pay any Contract
Adjustment Payments (including any accrued and unpaid Contract Adjustment
Payments) with respect to such Purchase Contracts shall immediately and
automatically terminate.
(c) Upon Early Settlement of Purchase Contracts by a Holder of the
related Units, the Company shall issue, and the Holder shall be entitled to
receive, [ ] newly issued shares of Common Stock, as adjusted in the same manner
and the same time as the Settlement Rate is adjusted (the "EARLY SETTLEMENT
RATE").
(d) No later than the third Business Day after the applicable Early
Settlement Date, the Company shall cause:
(i) the shares of Common Stock issuable upon Early Settlement of
Purchase Contracts to be issued and delivered, together with payment in
lieu of any fraction of a share, as provided in Section 5.09; and
(ii) the related Pledged Senior Notes or the Applicable Ownership
Interests in the Treasury Portfolio (as specified in clause (i) of the
definition of such term), as applicable, in the case of Corporate Units,
or the related Pledged Treasury Securities, in the case of Treasury Units,
to be released from the Pledge by the Collateral Agent, free and clear of
the Company's security interest therein, and transferred, in each case, to
the Purchase Contract Agent for delivery to the Holder thereof or its
designee.
(e) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of shares of Common Stock from the Company and the Senior Notes, the
Applicable Ownership Interests (as specified in clause (i) of the definition of
such term) in the Treasury Portfolio or Treasury Securities, as the case may be,
from the Securities Intermediary, as applicable, the Purchase Contract Agent
shall, in accordance with the instructions provided by the Holder
56
thereof on the applicable form of Election to Settle Early on the reverse of the
Certificate evidencing the related Units:
(i) transfer to the Holder the Senior Notes, the Applicable
Ownership Interests (as specified in clause (i) of the definition of such
term) in the Treasury Portfolio or Treasury Securities, as the case may
be, forming a part of such Units,
(ii) deliver to the Holder a certificate or certificates for the
full number of shares of Common Stock issuable upon such Early Settlement,
together with payment in lieu of any fraction of a share, as provided in
Section 5.09, and
(iii) if so required under the Securities Act, deliver a Prospectus
for the shares of Common Stock issuable upon such Early Settlement as
contemplated by (a).
(f) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Units evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the
Purchase Contract Agent shall execute on behalf of the Holder, authenticate and
deliver to the Holder thereof, at the expense of the Company, a Certificate
evidencing the Units as to which Early Settlement was not effected.
(g) A Holder of a Unit who effects Early Settlement may elect to
have the Senior Notes no longer a part of a Corporate Unit remarketed in
accordance with the provisions of Section 5.02.
Section 5.08. Intentionally Omitted.
Section 5.09. No Fractional Shares.
No fractional shares or scrip representing fractional shares of
Common Stock shall be issued or delivered upon settlement on the Purchase
Contract Settlement Date, or upon Early Settlement or Cash Merger Early
Settlement of any Purchase Contracts. If Certificates evidencing more than one
Purchase Contract shall be surrendered for settlement at one time by the same
Holder, the number of full shares of Common Stock that shall be delivered upon
settlement shall be computed on the basis of the aggregate number of Purchase
Contracts evidenced by the Certificates so surrendered. Instead of any
fractional share of Common Stock that would otherwise be deliverable upon
settlement of any Purchase Contracts on the Purchase Contract Settlement Date,
or upon Early Settlement or Cash Merger Early Settlement, the Company, through
the Purchase Contract Agent, shall make a cash payment in respect of such
fractional interest in an amount equal to the percentage of such fractional
share times the Applicable Market Value calculated as if the date of such
settlement were the Purchase Contract Settlement Date. The Company shall provide
the Purchase Contract Agent from time to time with sufficient funds to permit
the Purchase Contract Agent to make all cash payments required by this Section
5.09 in a timely manner.
Section 5.10. 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;
57
provided, however, that the Company shall not be required to pay any such tax or
taxes which may be payable in respect of any exchange of or substitution for a
Certificate evidencing a Unit or any issuance of a share of Common Stock in a
name other than that of the registered Holder of a Certificate surrendered in
respect of the Units evidenced thereby, other than in the name of the Purchase
Contract Agent, as custodian for such Holder, and the Company shall not be
required to issue or deliver such share certificates or Certificates unless 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.
Section 5.11. Contract Adjustment Payments.
(a) Subject to Section 5.11(d), the Company shall pay, on each
Payment Date, the Contract Adjustment Payments payable in respect of each
Purchase Contract to the Person in whose name a Certificate is registered at the
close of business on the Record Date relating to such Payment Date. The Contract
Adjustment Payments will be payable at the office of the Purchase Contract Agent
in the Borough of Manhattan, New York City maintained for that purpose. If the
book-entry system for the Units has been terminated, the Contract Adjustment
Payments will be payable, at the option of the Company, by check mailed to the
address of the Person entitled thereto at such Person's address as it appears on
the Security Register, or by wire transfer to the account designated by such
Person by a prior written notice to the Purchase Contract Agent. If any date on
which Contract Adjustment Payments are to be made is not a Business Day, then
payment of the Contract Adjustment Payments payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest in
respect of such delay). Contract Adjustment Payments payable for any period will
be computed on the basis of a 360-day year of twelve 30-day months. The Contract
Adjustment Payments will accrue from [ ], 2004.
(b) Upon the occurrence of a Termination Event, the Company's
obligation to pay future Contract Adjustment Payments (including any accrued
Contract Adjustment Payments) shall cease.
(c) Each Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of (including as a
result of a Collateral Substitution or the recreation of Corporate Units) any
other Certificate shall carry the right to accrued and unpaid Contract
Adjustment Payments, which right was carried by the Purchase Contracts
underlying such other Certificates.
(d) In the case of any Unit with respect to which Early Settlement
or Cash Merger Early Settlement of the underlying Purchase Contract is effected
on a date that is after any Record Date and prior to or on the next succeeding
Payment Date, Contract Adjustment Payments otherwise payable on such Payment
Date shall be payable on such Payment Date notwithstanding such Early Settlement
or Cash Merger Early Settlement, and such Contract Adjustment Payments shall be
paid to the Person in whose name the Certificate evidencing such Unit is
registered at the close of business on such Record Date. Except as otherwise
expressly provided in the immediately preceding sentence, and the right to
receive accrued and unpaid Contract Adjustment Payments as set forth in Section
5.04(b)(ii), in the case of any Unit with respect to which Early Settlement or
Cash Merger Early Settlement of the underlying Purchase
58
Contract is effected, Contract Adjustment Payments that would otherwise be
payable after the Early Settlement or Cash Merger Early Settlement Date with
respect to such Purchase Contract shall not be payable.
(e) The Company's obligations with respect to Contract Adjustment
Payments, if any, will be subordinated and junior in right of payment to the
Company's obligations under any Senior Indebtedness.
(f) In the event (x) of any payment by, or distribution of assets
of, the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution, winding-up, liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, or (y) subject to the
provisions of Section 5.11(h) below, that (i) a default shall have occurred and
be continuing with respect to the payment of principal, interest or any other
monetary amounts due and payable on any Senior Indebtedness and such default
shall have continued beyond the period of grace, if any, specified in the
instrument evidencing such Senior Indebtedness (and the Purchase Contract Agent
shall have received written notice thereof from the Company or one or more
holders of Senior Indebtedness or their representative or representatives or the
trustee or trustees under any indenture pursuant to which any such Senior
Indebtedness may have been issued), or (ii) the maturity of any Senior
Indebtedness shall have been accelerated because of a default in respect of such
Senior Indebtedness (and the Purchase Contract Agent shall have received written
notice thereof from the Company or one or more holders of Senior Indebtedness or
their representative or representatives or the trustee or trustees under any
indenture pursuant to which any such Senior Indebtedness may have been issued),
then:
(i) the holders of all Senior Indebtedness shall first be entitled
to receive, in the case of clause (x) above, payment of all amounts due or
to become due upon all Senior Indebtedness and, in the case of subclauses
(i) and (ii) of clause (y) above, payment of all amounts due thereon, or
provision shall be made for such payment in money or money's worth, before
the Holders of any of the Units are entitled to receive any Contract
Adjustment Payments on the Purchase Contracts underlying the Units;
(ii) any payment by, or distribution of assets of, the Company of
any kind or character, whether in cash, property or securities, to which
the Holders of any of the Units would be entitled except for the
provisions of Section 5.11(e) through (q), including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other indebtedness of the Company being subordinated to the payment
of such Contract Adjustment Payments on the Purchase Contracts underlying
the Units, shall be paid or delivered by the Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the representative or representatives of
the holders of Senior Indebtedness or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of such Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor) to the holders
of such Senior
59
Indebtedness, before any payment or distribution is made of such Contract
Adjustment Payments to the Holders of such Units; and
(iii) in the event that, notwithstanding the foregoing, any payment
by, or distribution of assets of, the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other indebtedness of the Company being subordinated to the payment
of Contract Adjustment Payments on the Purchase Contracts underlying the
Units, shall be received by the Purchase Contract Agent or the Holders of
any of the Units when such payment or distribution is prohibited pursuant
to Section 5.11(e) through (q), such payment or distribution shall be paid
over to the representative or representatives of the holders of Senior
Indebtedness or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any such Senior Indebtedness may have
been issued, ratably as aforesaid, for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent
payment or distribution (or provision therefor) to the holders of such
Senior Indebtedness.
(g) For purposes of Section 5.11(e) through (q), the words "cash,
property or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any other
Person provided for by a plan of reorganization or readjustment, the payment of
which is subordinated at least to the extent provided in Section 5.11(e) through
(q) with respect to such Contract Adjustment Payments on the Units to the
payment of all Senior Indebtedness which may at the time be outstanding;
provided that (i) the indebtedness or guarantee of indebtedness, as the case may
be, that constitutes Senior Indebtedness is assumed by the Person, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness are not, without the consent of each such
holder adversely affected thereby, altered by such reorganization or
readjustment;
(h) Any failure by the Company to make any payment on or perform any
other obligation under Senior Indebtedness, other than any indebtedness incurred
by the Company or assumed or guaranteed, directly or indirectly, by the Company
for money borrowed (or any deferral, renewal, extension or refunding thereof) or
any indebtedness or obligation as to which the provisions of Section 5.11(e)
through (q) shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed, guaranteed or otherwise
created such indebtedness or obligation, shall not be deemed a default or event
of default if (i) the Company shall be disputing its obligation to make such
payment or perform such obligation and (ii) either (A) no final judgment
relating to such dispute shall have been issued against the Company which is in
full force and effect and is not subject to further review, including a judgment
that has become final by reason of the expiration of the time within which a
party may seek further appeal or review, and (B) in the event a judgment that is
subject to further review or appeal has been issued, the Company shall in good
faith be prosecuting an appeal or other proceeding for review and a stay of
execution shall have been obtained pending such appeal or review.
60
(i) Subject to the irrevocable payment in full of all Senior
Indebtedness, the Holders of the Units shall be subrogated (equally and ratably
with the holders of all obligations of the Company which by their express terms
are subordinated to Senior Indebtedness of the Company to the same extent as
payment of the Contract Adjustment Payments in respect of the Purchase Contracts
underlying the Units is subordinated and which are entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until all such Contract Adjustment
Payments owing on the Units shall be paid in full, and as between the Company,
its creditors other than holders of such Senior Indebtedness and the Holders, no
such payment or distribution made to the holders of Senior Indebtedness by
virtue of Section 5.11(e) through (q) that otherwise would have been made to the
Holders shall be deemed to be a payment by the Company on account of such Senior
Indebtedness, it being understood that the provisions of Section 5.11(e) through
(q) are and are intended solely for the purpose of defining the relative rights
of the Holders, on the one hand, and the holders of Senior Indebtedness, on the
other hand.
(j) Nothing contained in Section 5.11(e) through (q) or elsewhere in
this Agreement or in the Units is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders such Contract Adjustment Payments on the Units as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Purchase Contract Agent or any Holder from
exercising all remedies otherwise permitted by applicable law upon default under
this Agreement, subject to the rights, if any, under Section 5.11(e) through
(q), of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
(k) Upon payment or distribution of assets of the Company referred
to in Section 5.11(e) through (q), the Purchase Contract Agent and the Holders
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or Purchase Contract Agent or other
person making any payment or distribution, delivered to the Purchase Contract
Agent or to the Holders, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Section 5.11(e) through (q).
(l) The Purchase Contract Agent shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee or representative on behalf of such
holder) to establish that such notice has been given by a holder of Senior
Indebtedness or a trustee or representative on behalf of any such holder or
holders. In the event that the Purchase Contract Agent determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to Section 5.11(e) through (q), the Purchase
61
Contract Agent may request such Person to furnish evidence to the reasonable
satisfaction of the Purchase Contract Agent as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under Section 5.11(e) through (q), and, if such evidence
is not furnished, the Purchase Contract Agent may defer payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
(m) Nothing contained in Section 5.11(e) through (q) shall affect
the obligations of the Company to make, or prevent the Company from making,
payment of the Contract Adjustment Payments, except as otherwise provided in
this Section 5.11(e) through (q).
(n) Each Holder of Units, by its acceptance thereof, authorizes and
directs the Purchase Contract Agent on its behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in Section
5.11(e) through (q) and appoints the Purchase Contract Agent its
attorney-in-fact, as the case may be, for any and all such purposes.
(o) The Company shall give prompt written notice to the Purchase
Contract Agent of any fact known to the Company that would prohibit the making
of any payment of moneys to or by the Purchase Contract Agent in respect of the
Units pursuant to the provisions of this Section. Notwithstanding the provisions
of Section 5.11(e) through (q) or any other provisions of this Agreement, the
Purchase Contract Agent shall not be charged with knowledge of the existence of
any facts that would prohibit the making of any payment of moneys to or by the
Purchase Contract Agent, or the taking of any other action by the Purchase
Contract Agent, unless and until the Purchase Contract Agent shall have received
written notice thereof mailed or delivered to the Purchase Contract Agent at its
Institutional Trust Services department from the Company, any Holder, or the
holder or representative of any Senior Indebtedness; provided that if at least
two Business Days prior to the date upon which by the terms hereof any such
moneys may become payable for any purpose, the Purchase Contract Agent shall not
have received with respect to such moneys the notice provided for in this
Section, then, anything herein contained to the contrary notwithstanding, the
Purchase Contract Agent shall have full power and authority to receive such
moneys and to apply the same to the purpose for which they were received and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to or on or after such date.
(p) The Purchase Contract Agent in its individual capacity shall be
entitled to all the rights set forth in this Section with respect to any Senior
Indebtedness at the time held by it, to the same extent as any other holder of
Senior Indebtedness and nothing in this Agreement shall deprive the Purchase
Contract Agent of any of its rights as such holder.
(q) No right of any present or future holder of any Senior
Indebtedness to enforce the subordination herein shall at any time or in any way
be prejudiced or impaired by any act or failure to act on the part of the
Company or by any noncompliance by the Company with the terms, provisions and
covenants of this Agreement, regardless of any knowledge thereof which any such
holder may have or be otherwise charged with.
(r) Nothing in this Section 5.11 shall apply to claims of, or
payments to, the Purchase Contract Agent under or pursuant to Section 7.07.
62
(s) With respect to the holders of Senior Indebtedness, (i) the
duties and obligations of the Purchase Contract Agent shall be determined solely
by the express provisions of this Agreement; (ii) the Purchase Contract Agent
shall not be liable to any such holders if it shall, acting in good faith,
mistakenly pay over or distribute to the Holders or to the Company or any other
Person cash, property or securities to which any holders of Senior Indebtedness
shall be entitled by virtue of this Section 5.11 or otherwise; (iii) no implied
covenants or obligations shall be read into this Agreement against the Purchase
Contract Agent; and (iv) the Purchase Contract Agent shall not be deemed to be a
fiduciary as to such holders.
ARTICLE 6
REMEDIES
Section 6.01. Unconditional Right of Holders to Receive Contract
Adjustment Payments and to Purchase Shares of Common Stock.
Each Holder of a Unit shall have the right, which is absolute and
unconditional, (i) subject to Article 5, to receive each Contract Adjustment
Payment with respect to the Purchase Contract comprising part of such Unit on
the respective Payment Date for such Unit and (ii) except upon and following a
Termination Event, to purchase shares of Common Stock pursuant to such Purchase
Contract and, in each such case, to institute suit for the enforcement of any
such right to receive Contract Adjustment Payments and the right to purchase
shares of Common Stock, and such rights shall not be impaired without the
consent of such Holder.
Section 6.02. Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any right or
remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company and such Holder shall be restored severally and respectively to their
former positions hereunder, and thereafter all rights and remedies of such
Holder shall continue as though no such proceeding had been instituted.
Section 6.03. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates in the last
paragraph of Section 3.10, no right or remedy herein conferred upon or reserved
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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Section 6.04. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right upon a
default or remedy upon a default shall impair any such right or remedy or
constitute a waiver of any such right. Every right and remedy given by this
Article or by law to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by such Holders.
Section 6.05. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of a Unit, by
its acceptance of such Unit shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Agreement, or in any suit against the Purchase Contract Agent
for any action taken, suffered or omitted by it as Purchase Contract Agent, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and costs 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 Purchase Contract Agent,
to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% of the Outstanding Units, or to any suit instituted by
any Holder for the enforcement of interest on any Senior Notes or Contract
Adjustment Payments on or after the respective Payment Date therefor in respect
of any Unit held by such Holder, or for enforcement of the right to purchase
shares of Common Stock under the Purchase Contracts constituting part of any
Unit 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 Purchase Contract Agent or the Holders, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE 7
THE PURCHASE CONTRACT AGENT
Section 7.01. Certain Duties and Responsibilities.
(a) The Purchase Contract Agent:
(i) undertakes to perform, with respect to the Units, such duties
and only such duties as are specifically set forth in this Agreement, the
Pledge Agreement and the Remarketing Agreement and no implied covenants or
obligations shall be read into this
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Agreement, the Pledge Agreement or the Remarketing Agreement against the
Purchase Contract Agent; and
(ii) in the absence of bad faith or gross negligence on its part,
may, with respect to the Units, conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Purchase Contract Agent and
conforming to the requirements of this Agreement or the Pledge Agreement
or the Remarketing Agreement, as applicable, but in the case of any
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Purchase Contract Agent, the Purchase
Contract Agent shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Agreement, the
Pledge Agreement or the Remarketing Agreement, as applicable (but need not
confirm or investigate the accuracy of the mathematical calculations or
other facts stated therein).
(b) No provision of this Agreement, the Pledge Agreement or the
Remarketing Agreement shall be construed to relieve the Purchase Contract Agent
from liability for its own grossly negligent action, its own grossly negligent
failure to act, or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(ii) the Purchase Contract Agent shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it shall
be conclusively determined by a court of competent jurisdiction that the
Purchase Contract Agent was grossly negligent in ascertaining the
pertinent facts; and
(iii) no provision of this Agreement or the Pledge Agreement or the
Remarketing Agreement shall require the Purchase Contract Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(c) Whether or not therein expressly so provided, every provision of
this Agreement, the Pledge Agreement and the Remarketing Agreement relating to
the conduct or affecting the liability of or affording protection to the
Purchase Contract Agent shall be subject to the provisions of this Section.
(d) The Purchase Contract Agent is authorized to execute and deliver
the Pledge Agreement and the Remarketing Agreement in its capacity as Purchase
Contract Agent.
Section 7.02. Notice of Default.
Within 30 days after the occurrence of any default by the Company
hereunder of which a Responsible Officer of the Purchase Contract Agent has
actual knowledge, the Purchase Contract Agent shall transmit by mail to the
Company and the Holders of Units, as their names
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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 Purchase Contract Agent.
Subject to the provisions of Section 7.01:
(a) the Purchase Contract Agent may, in the absence of bad faith,
conclusively rely and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, Senior
Note, 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 Pledge
Agreement or the Remarketing Agreement the Purchase Contract Agent shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting to take any action hereunder, the Purchase Contract
Agent (unless other evidence be herein specifically prescribed in this
Agreement) may, in the absence of bad faith on its part, conclusively rely
upon an Officers' Certificate of the Company;
(d) the Purchase Contract Agent may consult with counsel of its
selection appointed with due care by it hereunder and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Purchase Contract Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Purchase Contract Agent,
in its discretion, may make reasonable further inquiry or investigation
into such facts or matters related to the execution, delivery and
performance of the Purchase Contracts as it may see fit, and, if the
Purchase Contract Agent shall determine to make such further inquiry or
investigation, it shall be entitled to examine the relevant books, records
and premises of the Company, personally or by agent or attorney;
(f) the Purchase Contract Agent may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents, attorneys, custodians or nominees or an Affiliate and the Purchase
Contract Agent shall not be responsible for any misconduct or negligence
on the part of any agent, attorney, custodian or nominee or an Affiliate
appointed with due care by it hereunder;
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(g) the Purchase Contract Agent shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement at the
request or direction of any of the Holders pursuant to this Agreement,
unless such Holders shall have offered to the Purchase Contract Agent
security or indemnity reasonably satisfactory to the Purchase Contract
Agent against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(h) the Purchase Contract Agent shall not be liable for any action
taken, suffered, or omitted to be taken by it in the absence of bad faith
or gross negligence by it;
(i) the Purchase Contract Agent shall not be deemed to have notice
of any default hereunder unless a Responsible Officer of the Purchase
Contract Agent has actual knowledge thereof or unless written notice of
any event that is in fact such a default is received by the Purchase
Contract Agent at the Corporate Trust Office of the Purchase Contract
Agent, and such notice references the Units and this Agreement;
(j) the Purchase Contract Agent may request that the Company deliver
an Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Agreement, which Officers' Certificate may be signed by
any person authorized to sign an Officers' Certificate, including any
person specified as so authorized in any such certificate previously
delivered and not superseded;
(k) the rights, privileges, protections, immunities and benefits
given to the Purchase Contract Agent, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable by, the
Purchase Contract Agent in each of its capacities hereunder, and to each
agent, custodian and other Person employed to act hereunder; and
(l) the Purchase Contract Agent shall not be required to initiate or
conduct any litigation or collection proceedings hereunder and shall have
no responsibilities with respect to any default hereunder except as
expressly set forth herein.
Section 7.04. Not Responsible for Recitals or Issuance of Units.
The recitals contained herein, in the Pledge Agreement, the
Remarketing Agreement and in the Certificates shall be taken as the statements
of the Company, and the Purchase Contract Agent assumes no responsibility for
their accuracy or validity. The Purchase Contract Agent makes no representations
as to the validity or sufficiency of either this Agreement or of the Units, or
of the Pledge Agreement or the Pledge or the Collateral and shall have no
responsibility for perfecting or maintaining the perfection of any security
interest in the Collateral. The Purchase Contract Agent shall not be accountable
for the use or application by the Company of the proceeds in respect of the
Purchase Contracts.
Section 7.05. May Hold Units.
Any Security Registrar or any other agent of the Company, or the
Purchase Contract Agent and its Affiliates, in their individual or any other
capacity, may become the
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owner or pledgee of Units 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 Purchase Contract Agent.
The Company may become the owner or pledgee of Units.
Section 7.06. Money Held in Custody.
Money held by the Purchase Contract Agent in custody hereunder need
not be segregated from the Purchase Contract Agent's other funds except to the
extent required by law or provided herein. The Purchase Contract Agent shall be
under no obligation to invest or pay interest on any money received by it
hereunder except as otherwise provided hereunder or agreed in writing with the
Company.
Section 7.07. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Purchase Contract Agent compensation for all
services rendered by it hereunder, under the Pledge Agreement and under
the Remarketing Agreement as the Company and the Purchase Contract Agent
shall from time to time agree in writing;
(b) except as otherwise expressly provided for herein, to reimburse
the Purchase Contract Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Purchase Contract Agent
in accordance with any provision of this Agreement, the Pledge Agreement
and the Remarketing Agreement (including the reasonable compensation and
the expenses and disbursements of its agents and counsel) in connection
with the negotiation, preparation, execution and delivery and performance
of this Agreement, the Pledge Agreement and the Remarketing Agreement and
any modification, supplement or waiver of any of the terms thereof, except
any such expense, disbursement or advance as may be attributable to its
gross negligence, willful misconduct or bad faith; and
(c) to indemnify the Purchase Contract Agent and any predecessor
Purchase Contract Agent (and each of its directors, officers, agents and
employees (collectively, the "INDEMNITEES") for, and to hold it harmless
against, any loss, claim, damage, fine, penalty, liability or expense
(including reasonable fees and expenses of counsel) incurred without gross
negligence, willful misconduct or bad faith on its part, arising out of or
in connection with the acceptance or administration of its duties
hereunder and under the Pledge Agreement and the Remarketing Agreement,
including the Indemnitees' reasonable costs and expenses of defending
themselves against any claim (whether asserted by the Company, a Holder or
any other person) or liability in connection with the exercise or
performance of any of the Purchase Contract Agent's powers or duties
hereunder or thereunder.
The provisions of this Section shall survive the resignation and
removal of the Purchase Contract Agent and the termination of this Agreement.
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Section 7.08. Corporate Purchase Contract Agent Required,
Eligibility.
There shall at all times be a Purchase Contract Agent hereunder
which shall be a Person 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, New
York City, if there be such a Person in the Borough of Manhattan, New York City,
qualified and eligible under this Article and willing to act on reasonable
terms. If such Person 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
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Purchase
Contract Agent shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 7.09. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Purchase Contract Agent and no
appointment of a successor Purchase Contract Agent pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Purchase Contract Agent in accordance with the applicable requirements of
Section 7.10.
(b) The Purchase Contract Agent may resign at any time by giving
written notice thereof to the Company 60 days prior to the effective date of
such resignation. If the instrument of acceptance by a successor Purchase
Contract Agent required by Section 7.10 shall not have been delivered to the
Purchase Contract Agent within 30 days after the giving of such notice of
resignation, the resigning Purchase Contract Agent may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any time by Act of
the Holders of at least a majority in number of the Outstanding Units delivered
to the Purchase Contract Agent and the Company. If the instrument of acceptance
by a successor Purchase Contract Agent required by Section 7.10 shall not have
been delivered to the Purchase Contract Agent within 30 days after such Act, the
Purchase Contract Agent being removed may petition any court of competent
jurisdiction for the appointment at the expense of the Company of a successor
Purchase Contract Agent.
(d) If at any time:
(i) the Purchase Contract Agent fails to comply with Section 310(b)
of the TIA, as if the Purchase Contract Agent were an indenture trustee
under an indenture qualified under the TIA, and shall fail to resign after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Unit for at least six months;
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(ii) the Purchase Contract 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
(iii) the Purchase Contract Agent shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the Purchase
Contract Agent or of its property shall be appointed or any public officer
shall take charge or control of the Purchase Contract Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Purchase Contract Agent, or (ii) any Holder who has been a bona fide
Holder of a Unit 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 Purchase Contract Agent and the appointment of a
successor Purchase Contract Agent.
(e) If the Purchase Contract Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Purchase Contract Agent for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Purchase Contract Agent and shall comply with the
applicable requirements of Section 7.10. If no successor Purchase Contract Agent
shall have been so appointed by the Company and accepted appointment in the
manner required by Section 7.10, any Holder who has been a bona fide Holder of a
Unit for at least six months, on behalf of itself and all others similarly
situated, or the Purchase Contract Agent may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a successor
Purchase Contract Agent.
(f) The Company shall give, or shall cause such successor Purchase
Contract Agent to give, notice of each resignation and each removal of the
Purchase Contract Agent and each appointment of a successor Purchase Contract
Agent by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders as their names and addresses appear in the applicable
Security Register. Each notice shall include the name of the successor Purchase
Contract Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Purchase
Contract Agent, every such successor Purchase Contract Agent so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Purchase
Contract Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Purchase Contract Agent shall become
effective and such successor Purchase Contract Agent, without any further act,
deed or conveyance, shall become vested with all the rights, powers, agencies
and duties of the retiring Purchase Contract Agent; but, on the request of the
Company or the successor Purchase Contract Agent, such retiring Purchase
Contract Agent shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Purchase Contract Agent all the
rights, powers and trusts of the retiring Purchase Contract Agent and duly
assign, transfer and deliver to such successor Purchase Contract Agent all
property and money held by such retiring Purchase Contract Agent hereunder.
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(b) Upon request of any such successor Purchase Contract Agent, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Purchase Contract Agent all such
rights, powers and agencies referred to in subsection (a) of this Section.
(c) No successor Purchase Contract Agent shall accept its
appointment unless at the time of such acceptance such successor Purchase
Contract Agent shall be qualified and eligible under this Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Purchase Contract Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Purchase Contract Agent shall
be a party, or any Person succeeding to all or substantially all the corporate
trust business of the Purchase Contract Agent, shall be the successor of the
Purchase Contract Agent hereunder, provided that such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Certificates shall have been authenticated and executed on behalf of the
Holders, but not delivered, by the Purchase Contract Agent then in office, any
successor by merger, conversion or consolidation to such Purchase Contract Agent
may adopt such authentication and execution and deliver the Certificates so
authenticated and executed with the same effect as if such successor Purchase
Contract Agent had itself authenticated and executed such Units.
Section 7.12. Preservation of Information; Communications to
Holders.
(a) The Purchase Contract Agent shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders received by the
Purchase Contract Agent in its capacity as Security Registrar.
(b) If three or more Holders (herein referred to as "APPLICANTS")
apply in writing to the Purchase Contract Agent, and furnish to the Purchase
Contract Agent reasonable proof that each such applicant has owned a Unit 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 Units and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Purchase Contract Agent shall mail to
all the Holders copies of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Purchase Contract Agent of the materials to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing.
Section 7.13. No Obligations of Purchase Contract Agent.
Except to the extent otherwise expressly provided in this Agreement,
the Purchase Contract Agent assumes no obligations and shall not be subject to
any liability under this Agreement, the Pledge Agreement, the Remarketing
Agreement or any Purchase Contract in respect of the obligations of the Holder
of any Unit thereunder. The Company agrees, and each Holder of a Certificate, by
its acceptance thereof, shall be deemed to have agreed, that the
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Purchase Contract Agent's execution of the Certificates on behalf of the Holders
shall be solely as agent and attorney-in-fact for the Holders, and that the
Purchase Contract Agent shall have no obligation to perform such Purchase
Contracts on behalf of the Holders, except to the extent expressly provided in
Article Five hereof. Anything contained in this Agreement to the contrary
notwithstanding, in no event shall the Purchase Contract Agent or its officers,
directors, employees or agents be liable under this Agreement, the Pledge
Agreement or the Remarketing Agreement to any third party for indirect,
incidental, special, punitive, or consequential loss or damage of any kind
whatsoever, including lost profits, whether or not the likelihood of such loss
or damage was known to the Purchase Contract Agent and regardless of the form of
action.
Section 7.14. Tax Compliance.
(a) The Purchase Contract 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 Units or (ii) the issuance, delivery,
holding, transfer, redemption or exercise of rights under the Units. Such
compliance shall include, without limitation, the preparation and timely filing
of required returns and the timely payment of all amounts required to be
withheld to the appropriate taxing authority or its designated agent.
(b) The Purchase Contract Agent shall comply in accordance with the
terms hereof with any written direction received from the Company with respect
to the execution or certification of any required documentation and the
application of such requirements to particular payments or Holders or in other
particular circumstances, and may for purposes of this Agreement conclusively
rely on any such direction in accordance with the provisions of Section 7.01(a)
hereof.
(c) The Purchase Contract Agent shall maintain all appropriate
records documenting compliance with such requirements, and shall make such
records available, on written request, to the Company or its authorized
representative within a reasonable period of time after receipt of such request.
ARTICLE 8
SUPPLEMENTAL AGREEMENTS
Section 8.01. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Purchase Contract Agent, at any time and from time
to time, may enter into one or more agreements supplemental hereto, in form
satisfactory to the Company and the Purchase Contract Agent, to:
(a) evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company
herein and in the Certificates;
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(b) add to the covenants of the Company for the benefit of the
Holders, or surrender any right or power herein conferred upon the
Company;
(c) evidence and provide for the acceptance of appointment hereunder
by a successor Purchase Contract Agent;
(d) make provision with respect to the rights of Holders pursuant to
the requirements of Section 5.04(b);
(e) except as provided for in Section 5.04, cure any ambiguity (or
formal defect) or correct or supplement any provisions herein which may be
inconsistent with any other provisions herein; or
(f) make any other provisions with respect to such matters or
questions arising under this Agreement, provided that such action shall
not adversely affect the interests of the Holders in any material respect.
Section 8.02. Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority of the
Outstanding Units voting together as one class, including without limitation the
consent of the Holders obtained in connection with a tender or an exchange
offer, by Act of said Holders delivered to the Company and the Purchase Contract
Agent, the Company, when duly authorized, and the Purchase Contract Agent may
enter into an agreement or agreements supplemental hereto for the purpose of
modifying in any manner the terms of the Purchase Contracts, or the provisions
of this Agreement or the rights of the Holders in respect of the Units;
provided, however, that, except as contemplated herein, no such supplemental
agreement shall, without the unanimous consent of the Holders of each
outstanding Purchase Contract affected thereby,
(a) change any Payment Date;
(b) change the amount or the type of Collateral required to be
Pledged to secure a Holder's obligations under the Purchase Contract,
unless such change is not adverse to the Holders, impair the right of the
Holder of any Purchase Contract to receive distributions on the related
Collateral or otherwise adversely affect the Holder's rights in or to such
Collateral or adversely alter the rights in or to such Collateral;
(c) reduce any Contract Adjustment Payments or change any place
where, or the coin or currency in which, any Contract Adjustment Payment
is payable;
(d) impair the right to institute suit for the enforcement of any
Purchase Contract or any Contract Adjustment Payments;
(e) reduce the number of shares of Common Stock or the amount of any
other property to be purchased pursuant to any Purchase Contract, increase
the price to purchase shares of Common Stock or any other property upon
settlement of any Purchase Contract or change the Purchase Contract
Settlement Date or the right to Early Settlement
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or Cash Merger Early Settlement or otherwise adversely affect the Holder's
rights under the Purchase Contract; or
(f) reduce the percentage of the outstanding Purchase Contracts the
consent of whose Holders is required for any modification or amendment to
the provisions of this Agreement, the Purchase Contracts or the Pledge
Agreement;
provided that if any amendment or proposal referred to above would adversely
affect only the Corporate Units or the Treasury Units, then only the affected
class of Holders as of the record date for the Holders entitled to vote thereon
will be entitled to vote on such amendment or proposal, and such amendment or
proposal shall not be effective except with the consent of Holders of not less
than a majority of such class; and provided, further, that the unanimous consent
of the Holders of each outstanding Purchase Contract of such class affected
thereby shall be required to approve any amendment or proposal specified in
clauses (a) through (f) above.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental agreement, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 8.03. 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 Purchase Contract Agent shall be
provided, and (subject to Section 7.01) shall be fully authorized and protected
in relying upon, an Officers' Certificate and an Opinion of Counsel stating that
the execution of such supplemental agreement is authorized or permitted by this
Agreement and that any and all conditions precedent to the execution and
delivery of such supplemental agreement have been satisfied. The Purchase
Contract Agent may, but shall not be obligated to, enter into any such
supplemental agreement which affects the Purchase Contract Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 8.04. 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 Certificates theretofore or thereafter authenticated, executed on behalf of
the Holders and delivered hereunder, shall be bound thereby.
Section 8.05. Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Purchase Contract Agent, bear a
notation in form approved by the Purchase Contract Agent as to any matter
provided for in such supplemental agreement. If the Company shall so determine,
new Certificates so modified as to conform, in the opinion of the Purchase
Contract Agent and the Company, to any such supplemental agreement may be
prepared and executed by
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the Company and authenticated, executed on behalf of the Holders and delivered
by the Purchase Contract Agent in exchange for outstanding Certificates.
ARTICLE 9
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 9.01. Covenant Not to Consolidate, Merge, Convey, Transfer
or Lease Property Except under Certain Conditions.
The Company covenants that it will not consolidate with, convert
into, or merge with and into, any other corporation or sell, assign, transfer,
lease or convey all or substantially all of its properties and assets to any
Person, unless:
(a) either the Company shall be the continuing corporation, or the
successor (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof
or the District of Columbia and such corporation shall expressly assume
all the obligations of the Company under the Purchase Contracts, this
Agreement, the Pledge Agreement, the Indenture (including any supplement
thereto) and the Remarketing Agreement by one or more supplemental
agreements in form reasonably satisfactory to the Purchase Contract Agent
and the Collateral Agent, executed and delivered to the Purchase Contract
Agent and the Collateral Agent by such corporation; and
(b) the Company or such successor corporation, as the case may be,
shall not, immediately after such consolidation, conversion, merger, sale,
assignment, transfer, lease or conveyance, be in default of payment
obligations under the Purchase Contracts, this Agreement, the Pledge
Agreement, the Indenture (including any supplement thereto) or the
Remarketing Agreement or in material default in the performance of any
other covenants under any of the foregoing agreements.
Section 9.02. Rights and Duties of Successor Corporation.
In case of any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance and upon any such assumption by a
successor corporation in accordance with Section 9.01, 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 Xxxxxxxxx'x, Inc., any or all of the Certificates evidencing Units
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Purchase Contract Agent; and, upon the order of such
successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Purchase Contract
Agent shall authenticate and execute on behalf of the Holders and deliver any
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Purchase Contract Agent for authentication and
execution, and any Certificate evidencing Units which such successor corporation
thereafter shall cause to be signed and delivered to the Purchase Contract Agent
for that purpose. All the Certificates issued shall in all
75
respects have the same legal rank and benefit under this Agreement as the
Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Certificates had been issued at the date of
the execution hereof.
In case of any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance, such change in phraseology and form
(but not in substance) may be made in the Certificates evidencing Units
thereafter to be issued as may be appropriate.
Section 9.03. Officers' Certificate and Opinion of Counsel Given to
Purchase Contract Agent.
The Purchase Contract Agent, subject to Section 7.01 and Section
7.03, shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance, and any such assumption, complies
with the provisions of this Article and that all conditions precedent to the
consummation of any such merger, consolidation, share exchange, sale,
assignment, transfer, lease or conveyance have been met.
ARTICLE 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 Units 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, New York City
an office or agency where Certificates may be presented or surrendered for
acquisition of shares of Common Stock upon settlement of the Purchase Contracts
on the Purchase Contract Settlement Date or upon Early Settlement or Cash Merger
Early Settlement and for transfer of Collateral upon occurrence of a Termination
Event, where Certificates may be surrendered for registration of transfer or
exchange, for a Collateral Substitution or recreation of Corporate Units and
where notices and demands to or upon the Company in respect of the Units and
this Agreement may be served. The Company will give prompt written notice to the
Purchase Contract Agent of the location, and any change in the location, of such
office or agency. The Company initially designates the Corporate Trust Office of
the Purchase Contract Agent as such office of the Company. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Purchase Contract Agent with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Company hereby appoints the Purchase Contract
Agent as its agent to receive all such presentations, surrenders, notices and
demands.
76
The Company may also from time to time designate one or more other
offices or agencies where Certificates may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, New York City for such purposes. The Company will give
prompt written notice to the Purchase Contract Agent of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates as the place of payment for the Units the
Corporate Trust Office and appoints the Purchase Contract 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 Purchase Contract
Settlement Date reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock the full number of shares of Common
Stock issuable against tender of payment in respect of all Purchase Contracts
constituting a part of the Units evidenced by Outstanding Certificates.
Section 10.04. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be
issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Units will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
Section 10.05. Statements of Officers of the Company as to Default.
The Company will deliver to the Purchase Contract Agent, within 120
days after the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate, stating whether or not to the knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions hereof, and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 10.06. ERISA.
Each Holder from time to time of the Units that is a Plan or who
used assets of a Plan to purchase Units hereby represents that either (i) no
portion of the assets used by such Holder to acquire the Corporate Units
constitutes assets of the Plan or (ii) the purchase or holding of the Corporate
Units by such purchaser or transferee will not constitute a non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or
similar violation under any applicable laws.
Section 10.07. Tax Treatment.
The Company covenants and agrees, for United States federal, state
and local income and franchise tax purposes, to (i) treat a Holder's acquisition
of the Corporate Units as the acquisition of the Senior Note and Purchase
Contract constituting the Corporate Units and (ii)
77
treat each Holder as the owner of the applicable interest in the Collateral
Account, including the Senior Notes and Applicable Ownership Interests in the
Treasury Portfolio or the Treasury Securities.
SIGNATURES ON THE FOLLOWING PAGE
78
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
XXXXXXXXX'X, INC.
By:
------------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Purchase Contract Agent
By:
------------------------------------
Name:
Title:
EXHIBIT A
(FORM OF FACE OF CORPORATE UNITS CERTIFICATE)
[For inclusion in Global Certificates only - THIS CERTIFICATE IS A
GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE CONTRACT AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF CEDE & CO., AS THE
NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY"), THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS
CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE
(OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No. _________ CUSIP No.
Number of Corporate Units: ___________________
XXXXXXXXX'X, INC.
Corporate Units
This Corporate Units Certificate certifies that [Cede & Co.] is the
registered Holder of the number of Corporate Units set forth above [for
inclusion in Global Certificates only - or such other number of Corporate Units
reflected in the Schedule of Increases or Decreases in the Global Certificate
attached hereto]. Each Corporate Unit consists of (i) either (a) a 1/40, or
2.5%, beneficial ownership interest of the Holder in one Senior Note due 2009
(the "SENIOR NOTE") of Xxxxxxxxx'x, Inc., a Delaware corporation (the
"COMPANY"), subject to the Pledge of such Senior Note by such Holder pursuant to
the Pledge Agreement, or (b) upon the occurrence of a Special Event Redemption
prior to the Purchase Contract Settlement Date or a Successful Remarketing of
the Senior Notes prior to the Final Remarketing Date, the Applicable Ownership
Interests, subject to the pledge of the appropriate Applicable Ownership
Interests (as specified in clause (i) of the definition of such term) in the
Treasury Portfolio by such Holder pursuant to the Pledge Agreement, and (ii) the
rights and obligations of the Holder under one
A-1
Purchase Contract with the Company. All capitalized terms used herein which are
defined in the Purchase Contract Agreement (as defined on the reverse hereof)
have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Senior Notes or the
appropriate Applicable Ownership Interests (as specified in clause (i) of the
definition of such term) in the Treasury Portfolio, as the case may be,
constituting part of each Corporate Unit evidenced hereby have been pledged to
the Collateral Agent, for the benefit of the Company, to secure the obligations
of the Holder under the Purchase Contract comprising part of such Corporate
Unit.
The Pledge Agreement provides that all payments of the principal
amount with respect to any of the Pledged Senior Notes (as defined in the Pledge
Agreement) or the appropriate Applicable Ownership Interests (as specified in
clause (i) of the definition of such term) in the Treasury Portfolio, as the
case may be, or interest or distributions on any Pledged Senior Notes or the
appropriate Applicable Ownership Interests (as specified in clause (ii) of the
definition of such term) in the Treasury Portfolio, as the case may be,
constituting part of the Corporate Units received by the Securities Intermediary
shall be paid by wire transfer in same day funds (i) in the case of (A) interest
on Pledged Senior Notes or distributions with respect to the appropriate
Applicable Ownership Interests (as specified in clause (ii) of the definition of
such term) in the Treasury Portfolio, as the case may be, and (B) any payments
of the principal amount of any Senior Notes or with respect to the appropriate
Applicable Ownership Interests (as specified in clause (i) of the definition of
such term) in the Treasury Portfolio, as the case may be, that have been
released from the Pledge pursuant to the Pledge Agreement, to the Purchase
Contract Agent to the account designated by the Purchase Contract Agent, no
later than 2:00 p.m., New York City time, on the Business Day such payment is
received by the Securities Intermediary (provided that in the event such payment
is received by the Securities Intermediary on a day that is not a Business Day
or after 12:30 p.m., New York City time, on a Business Day, then such payment
shall be made no later than 10:30 a.m., New York City time, on the next
succeeding Business Day) and (ii) in the case of payments with respect to the
principal amount of the Pledged Senior Notes or with respect to the appropriate
Applicable Ownership Interests (as specified in clause (i) of the definition of
such term) in the Treasury Portfolio, to the Company on the Purchase Contract
Settlement Date (as described herein) in accordance with the terms of the Pledge
Agreement, in full satisfaction of the respective obligations of the Holders of
the Corporate Units of which such Pledged Senior Notes or the Applicable
Ownership Interests (as specified in clause (i) of the definition of such term)
in the Treasury Portfolio, as the case may be, are a part under the Purchase
Contracts forming a part of such Corporate Units. Interest on the Senior Notes
and distributions on the appropriate Applicable Ownership Interests (as
specified in clause (ii) of the definition of such term) in the Treasury
Portfolio, as the case may be, forming part of a Corporate Units evidenced
hereby, which are payable quarterly in arrears on February 16, May 16, August
16, and November 16 of each year, commencing [ ] (a "PAYMENT DATE"), shall,
subject to receipt thereof by the Purchase Contract Agent from the Securities
Intermediary, be paid to the Person in whose name this Corporate Units
Certificate (or a Predecessor Corporate Units Certificate) is registered at the
close of business on the Record Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate Units Certificate to purchase, and the Company to sell, on May 16,
2007 (the "PURCHASE
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CONTRACT SETTLEMENT DATE"), at a price equal to $25 (the "PURCHASE PRICE"), a
number of newly issued shares of common stock, par value $1.00 per share
("COMMON STOCK"), of the Company, equal to the Settlement Rate, unless on or
prior to the Purchase Contract Settlement Date there shall have occurred a
Termination Event or an Early Settlement or Cash Merger Early Settlement with
respect to such Purchase Contract, all as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof. The purchase price
(the "PURCHASE PRICE") for the shares of Common Stock purchased pursuant to each
Purchase Contract evidenced hereby, if not paid earlier, shall be paid on the
Purchase Contract Settlement Date by application of payment received in respect
of the principal amount with respect to any Pledged Senior Notes pursuant to the
Remarketing or the appropriate Applicable Ownership Interests (as specified in
clause (i) of the definition of such term) in the Treasury Portfolio, as the
case may be, pledged to secure the obligations under such Purchase Contract of
the Holder of the Corporate Units of which such Purchase Contract is a part.
Each Purchase Contract evidenced hereby obligates the holder to
agree, for United States federal, state and local income and franchise tax
purposes, to (i) treat an acquisition of the Corporate Units as an acquisition
of the Senior Notes and Purchase Contracts constituting the Corporate Units and
(ii) treat itself as owner of the applicable interest in the Collateral Account,
including the Senior Notes and the Applicable Ownership Interests (as specified
in clause (i) of the definition of such term) in the Treasury Portfolio.
The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of a Corporate Unit evidenced hereby, an amount
(the "CONTRACT ADJUSTMENT PAYMENTS") equal to [ ]% per year of the Stated
Amount. Such Contract Adjustment Payments shall be payable to the Person in
whose name this Corporate Units Certificate is registered at the close of
business on the Record Date for such Payment Date.
Interest on the Senior Notes and distributions on the Applicable
Ownership Interests (as specified in clause (ii) of the definition of such term)
and the Contract Adjustment Payments will be payable at the office of the
Purchase Contract Agent in New York City. If the book-entry system for the
Corporate Units has been terminated, the Contract Adjustment Payments will be
payable, at the option of the Company, by check mailed to the address of the
Person entitled thereto at such Person's address as it appears on the Security
Register, or by wire transfer to the account designated by such Person by a
prior written notice to the Purchase Contract Agent.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Purchase Contract Agent by manual signature, this Corporate Units
Certificate shall not be entitled to any benefit under the Pledge Agreement or
the Purchase Contract Agreement or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company and the Holder specified above have
caused this instrument to be duly executed.
XXXXXXXXX'X, INC.
By:
------------------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts)
By: U.S. BANK TRUST NATIONAL
ASSOCIATION, not individually but
solely as attorney-in-fact of such
Holder
By:
------------------------------------
Name:
Title:
Date:
------------------------------------
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CERTIFICATE OF AUTHENTICATION
OF PURCHASE CONTRACT AGENT
This is one of the Corporate Units Certificates referred to in the
within mentioned Purchase Contract Agreement.
By: U.S. BANK TRUST NATIONAL ASSOCIATION,
as Purchase Contract Agent
By:
--------------------------------------
Name:
Title:
Date:
------------------------------------
A-5
(FORM OF REVERSE OF CORPORATE UNITS CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of [ ], 2004 (as may be supplemented from time to time, the
"PURCHASE CONTRACT AGREEMENT"), between the Company and U.S. Bank Trust National
Association, as Purchase Contract Agent (including its successors hereunder, the
"PURCHASE CONTRACT AGENT"), to which Purchase Contract Agreement and
supplemental agreements thereto reference, is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Purchase Contract Agent, the Company, and the Holders and of
the terms upon which the Corporate Units Certificates are, and are to be,
executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate Units Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to $25 (the "PURCHASE
PRICE"), a number of shares of Common Stock equal to the Settlement Rate, unless
an Early Settlement, a Cash Merger Early Settlement or a Termination Event with
respect to the Units of which such Purchase Contract is a part shall have
occurred. The "SETTLEMENT RATE" is equal to:
(1) if the Adjusted Applicable Market Value (as defined below) is
greater than or equal to $[ ] (the "THRESHOLD APPRECIATION PRICE"), [ ]
shares of Common Stock per Purchase Contract, (such number of shares, as
adjusted from time to time pursuant to Section 5.04, the "MINIMUM SHARE
NUMBER");
(2) if the Adjusted Applicable Market Value is less than the
Threshold Appreciation Price but greater than $[ ] (the "REFERENCE
PRICE"), the number of shares of Common Stock per Purchase Contract having
a value equal to the Stated Amount divided by the Adjusted Applicable
Market Value; and
(3) if the Adjusted Applicable Market Value is less than or equal to
the Reference Price, [ ] shares of Common Stock per Purchase Contract,
(such number of shares, as adjusted from time to time pursuant to Section
5.04, the "MAXIMUM SHARE NUMBER"),
in each case subject to adjustment as provided in the Purchase Contract
Agreement (and in each case rounded upward or downward to the nearest 1/10,000th
of a share).
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in Section 5.09 of the Purchase Contract
Agreement.
Each Purchase Contract evidenced hereby, which is settled through Early
Settlement or Cash Merger Early Settlement, shall obligate the Holder of the
related Corporate Units to purchase at the Purchase Price, and the Company to
sell, a number of newly issued shares of Common Stock equal to the Early
Settlement Rate (in the case of an Early Settlement) or applicable Settlement
Rate (in the case of a Cash Merger Early Settlement).
The "ADJUSTED APPLICABLE MARKET VALUE" means (i) prior to any adjustment
pursuant to paragraph (i), (ii), (iii), (iv), (v), (vi), (vii) or (x) of Section
5.04(a) of the Purchase Contract Agreement, the Applicable Market Value, and
(ii) at the time of and after any
A-6
adjustment of the Fixed Settlement Rate pursuant to paragraph (i), (ii), (iii),
(iv), (v), (vi), (vii) or (x) of Section 5.04(a) of the Purchase Contract
Agreement, the Applicable Market Value multiplied by a fraction, the numerator
of which shall be the Fixed Settlement Rate immediately after such adjustment
pursuant to paragraph (i), (ii), (iii), (iv), (v), (vi), (vii) or (x) of Section
5.04(a) of the Purchase Contract Agreement and the denominator of which shall be
the Fixed Settlement Rate immediately prior to such adjustment; provided,
however, that if such adjustment to the Fixed Settlement Rate is required to be
made pursuant to the occurrence of any of the events contemplated by paragraph
(i), (ii), (iii), (iv), (v), (vi), (vii) or (x) of Section 5.04(a) of the
Purchase Contract Agreement during the period taken into consideration for
determining the Applicable Market Value, appropriate and customary adjustments
shall be made to the Fixed Settlement Rate.
The "APPLICABLE MARKET VALUE" means the average of the Closing Price per
share of Common Stock on each of the 20 consecutive Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date.
The "CLOSING PRICE" per share of Common Stock on any date of determination
means:
(1) the closing sale price as of the close of the principal trading
session (or, if no closing price is reported, the last reported sale
price) per share on the New York Stock Exchange, Inc. (the "NYSE") on such
date;
(2) if Common Stock is not listed for trading on the NYSE on any
such date, the closing sale price (or, if no closing price is reported,
the last reported sale price) per share as reported in the composite
transactions for the principal United States national or regional
securities exchange on which Common Stock is so listed;
(3) if Common Stock is not so listed on a United States national or
regional securities exchange, the last closing sale price per share as
reported by the Nasdaq National Market, Inc.;
(4) if Common Stock is not so reported by the Nasdaq National
Market, Inc., 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
(5) if the bid price referred to above is not available, the market
value of Common Stock on such date as determined by a nationally
recognized independent investment banking firm retained by the Company for
purposes of determining the Closing Price.
A "TRADING DAY" means a day on which Common Stock (1) is not suspended
from trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (2) has traded at least
once on the national or regional securities exchange or association or
over-the-counter market that is the primary market for the trading of Common
Stock.
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In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Corporate Units Certificate may pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby by effecting a Cash Settlement, an Early Settlement or, if applicable, a
Cash Merger Early Settlement or from the proceeds of the Applicable Ownership
Interests (as specified in clause (i) of the definition of such term) in the
Treasury Portfolio or a Remarketing of the related Pledged Senior Notes. Unless
the Treasury Portfolio has replaced the Senior Notes as a component of Corporate
Units, a Holder of Corporate Units who (1) does not, on or prior to 5:00 p.m.
(New York City time) on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date, notify the Purchase Contract Agent of its
intention to effect a Cash Settlement, or who does so notify the Purchase
Contract Agent but fails to make an effective Cash Settlement on or prior to
5:00 p.m. (New York City time) on the fourth Business Day immediately preceding
the Purchase Contract Settlement Date, or (2) on or prior to 5:00 p.m. (New York
City time) on the fifth Business Day prior to the Purchase Contract Settlement
Date, does not make an effective Early Settlement, shall pay the Purchase Price
for the shares of Common Stock to be delivered under the related Purchase
Contract from the proceeds of the sale of the related Pledged Senior Notes held
by the Collateral Agent in the Remarketing unless the Holder has previously made
a Cash Merger Early Settlement. Unless the Treasury Portfolio has replaced the
Senior Notes as a component of Corporate Units, such sale will be made by the
Remarketing Agent pursuant to the terms of the Remarketing Agreement on the
Final Remarketing Date. If the Treasury Portfolio has replaced the Senior Notes
as a component of Corporate Units, a Holder of Corporate Units who does not
notify the Purchase Contract Agent, on or prior to 5:00 p.m. (New York City
time) on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date of its intention to effect a Cash Settlement shall pay the
Purchase Price for the shares of Common Stock to be delivered under the related
Purchase Contract from the proceeds at maturity of the Applicable Ownership
Interests (as defined in clause (i) of the definition of such term) in the
Treasury Portfolio.
As provided in the Purchase Contract Agreement, upon the occurrence of a
Failed Final Remarketing, unless a Holder of a Pledged Senior Note has notified
the Purchase Contract Agent of his intent to effect a Cash Settlement of the
Purchase Contract and delivered the Purchase Price to the Collateral Agent
pursuant to Section 5.02(e)(ii) of the Purchase Contract Agreement, such Holder
shall be deemed to have exercised such Holder's Put Right and to have elected to
pay the Purchase Price under the Purchase Contract out of a portion of the
proceeds from the Put Right in full satisfaction of such Holder's obligations
under the Purchase Contract. In the event of the Company's failure to pay the
Put Price when due, the Company shall be deemed to have netted such Holder's
obligation to pay the Company the Purchase Price under the Purchase Contracts
against the Company's obligation to pay the Put Price, in full satisfaction of
such Holder's obligation under the Purchase Contracts.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate Purchase Price for
the shares of Common Stock to be purchased thereunder in the manner set forth in
the Purchase Contract Agreement.
Under the terms of the Pledge Agreement and the Purchase Contract
Agreement, the Purchase Contract Agent will be entitled to exercise the voting
and any other consensual
A-8
rights pertaining to the Pledged Senior Notes, but only to the extent instructed
in writing by the Holders. Upon receipt of notice of any meeting at which
holders of Senior Notes are entitled to vote or upon any solicitation of
consents, waivers or proxies of holders of Senior Notes, the Purchase Contract
Agent shall, as soon as practicable thereafter, mail, first class, postage
pre-paid, to the Corporate Units Holders a notice:
(1) containing such information as is contained in the notice or
solicitation;
(2) stating that each Holder on the record date set by the Purchase
Contract Agent therefor (which, to the extent possible, shall be the same
date as the record date for determining the holders of Senior Notes, as
the case may be, entitled to vote) shall be entitled to instruct the
Purchase Contract Agent as to the exercise of the voting rights pertaining
to the Senior Notes underlying such Holder's Corporate Units; and
(3) stating the manner in which such instructions may be given.
Upon the written request of the Corporate Units Holders on such record date
received by the Purchase Contract Agent at least six days prior to such meeting,
the Purchase Contract Agent shall endeavor insofar as practicable to vote or
cause to be voted, in accordance with the instructions set forth in such
requests, the maximum aggregate principal amount of Senior Notes, as the case
may be, as to which any particular voting instructions are received. In the
absence of specific instructions from the Holder of a Corporate Unit, the
Purchase Contract Agent shall abstain from voting the Senior Note evidenced by
such Corporate Unit. The Company hereby agrees, if applicable, to solicit
Holders of Corporate Units to timely instruct the Purchase Contract Agent in
order to enable the Purchase Contract Agent to vote the Senior Notes. The
Holders of Corporate Units shall have no voting or other rights in respect of
Common Stock.
Upon the occurrence of a Special Event Redemption, the Collateral Agent
shall surrender the Pledged Senior Notes against delivery of an amount equal to
the aggregate Redemption Price of the Pledged Senior Notes and shall deposit the
funds in the Collateral Account in exchange for the Pledged Senior Notes.
Thereafter, pursuant to the terms of the Pledge Agreement, the Collateral Agent
shall cause the Securities Intermediary to apply an amount equal to the
aggregate Redemption Amount of such funds to purchase on behalf of the Holders
of Corporate Units the Treasury Portfolio and promptly (a) transfer the
Applicable Ownership Interests (as specified in clause (i) of the definition of
such term) in the Treasury Portfolio to the Collateral Account to secure the
obligations of each Holder of Corporate Units to purchase shares of Common Stock
under the Purchase Contracts constituting a part of such Corporate Units, (b)
transfer the Applicable Ownership Interests (as specified in clause (ii) of the
definition of such term) in the Treasury Portfolio to the Purchase Contract
Agent for the benefit of the Holders of such Corporate Units and (c) remit the
remaining portion of such funds to the Purchase Contract Agent for payment to
the Holders of such Corporate Units.
Upon the occurrence of a Successful Remarketing of Senior Notes prior to
the Final Remarketing Date, pursuant to the terms of the Remarketing Agreement,
the Remarketing Agent will apply an amount equal to the Treasury Portfolio
Purchase Price to purchase on behalf of the Holders of Corporate Units, the
Treasury Portfolio, and, after deducting all or a portion of the Remarketing Fee
to the extent permitted under the terms of the Remarketing Agreement,
A-9
promptly remit the remaining portion of such proceeds of such Successful
Remarketing to the Purchase Contract Agent for payment to the Holders of such
Corporate Units.
Following the occurrence of (i) a Special Event Redemption prior to the
Purchase Contract Settlement Date, or (ii) a Successful Remarketing of the
Senior Notes prior to the Final Remarketing Date, the Holders of Corporate Units
and the Collateral Agent shall have such security interest rights and
obligations with respect to the Applicable Ownership Interests (as specified in
clause (i) of the definition of such term) in the Treasury Portfolio as the
Holder of Corporate Units and the Collateral Agent had in respect of the Senior
Notes, as the case may be, subject to the Pledge of the Applicable Ownership
Interest (as specified in clause (i) of the definition of such term) as provided
in the Pledge Agreement and any reference herein to the Senior Notes shall be
deemed to be a reference to such Treasury Portfolio.
The Corporate Units Certificates are issuable only in registered form and
only in denominations of a single Corporate Unit and any integral multiple
thereof. The transfer of any Corporate Units Certificate will be registered and
Corporate Units Certificates may be exchanged as provided in the Purchase
Contract Agreement. The 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 Purchase
Contract Agent may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. A Holder who elects to
substitute a Treasury Security for a Senior Note, thereby creating Treasury
Units, shall be responsible for any fees or expenses payable in connection
therewith. Except as provided in the Purchase Contract Agreement, for so long as
the Purchase Contract underlying a Corporate Units remains in effect, such
Corporate Units shall not be separable into its constituent parts, and the
rights and obligations of the Holder of such Corporate Units in respect of the
Senior Notes and Purchase Contract constituting such Corporate Units may be
transferred and exchanged only as a Corporate Unit.
Unless the Treasury Portfolio has replaced the Senior Notes as a component
of the Corporate Units, and subject to the conditions set forth in the Purchase
Contract Agreement, the Holder of Corporate Units may substitute, at any time on
or prior to 5:00 p.m. (New York City time) on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date, for the Pledged Senior Notes
securing such Holder's obligations under the related Purchase Contracts,
Treasury Securities in an aggregate principal amount at maturity equal to the
aggregate principal amount of the Pledged Senior Notes in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement. From and
after such Collateral Substitution, each Unit for which such Pledged Treasury
Securities secures the Holder's obligation under the Purchase Contract shall be
referred to as a "TREASURY UNIT". A Holder may make such Collateral Substitution
only in integral multiples of 40 Corporate Units for 40 Treasury Units.
If the Treasury Portfolio has replaced the Senior Notes as a component of
the Corporate Units, a Holder may, at any time on or prior to the second
Business Day immediately preceding the Purchase Contract Settlement Date,
substitute Treasury Securities for the Applicable Ownership Interests in the
Treasury Portfolio, but only in integral multiples of [ ] Corporate Units. In
such an event, the Holder shall transfer Treasury Securities to the Collateral
A-10
Agent, and the Purchase Contract Agent shall instruct the Collateral Agent to
release the Pledge and transfer to the Holder the appropriate Applicable
Ownership Interests in the Treasury Portfolio.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Corporate Units Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Purchase
Contract Agent in New York City. If the book-entry system for the Corporate
Units has been terminated, the Contract Adjustment Payments will be payable, at
the option of the Company, by check mailed to the address of the Person entitled
thereto at such Person's address as it appears on the Security Register, or by
wire transfer to the account designated by such Person by a prior written notice
to the Purchase Contract Agent.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive and the obligation of the Company to pay any Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Purchase Contract Agent or the
Company, if, on or prior to the Purchase Contract Settlement Date, a Termination
Event shall have occurred. Upon the occurrence of a Termination Event, the
Company shall promptly but in no event later than two Business Days thereafter
give written notice to the Purchase Contract Agent, the Collateral Agent and the
Holders, at their addresses as they appear in the Security Register. Upon and
after the occurrence of a Termination Event, the Collateral Agent shall release
the Pledged Senior Notes or the appropriate Applicable Ownership Interests (as
specified in clause (i) of the definition of such term) (as defined in the
Pledge Agreement) in the Treasury Portfolio, as the case may be, from the Pledge
in accordance with the provisions of the Pledge Agreement. A Corporate Unit
shall thereafter represent the right to receive the Senior Note or the
appropriate Applicable Ownership Interests in the Treasury Portfolio forming a
part of such Corporate Unit in accordance with the terms of, and except as set
forth in, 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 Units may be settled early ("EARLY SETTLEMENT") at any time on or
prior to 5:00 p.m. (New York City time) on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date as provided in the Purchase
Contract Agreement. In order to exercise the right to effect Early Settlement
with respect to any Purchase Contract evidenced by this Certificate, the Holder
of this Corporate Units Certificate shall deliver to the Purchase Contract Agent
at the Corporate Trust Office prior to the time specified in the Purchase
Contract Agreement an Election to Settle Early form set forth below duly
completed and accompanied by payment in the form of immediately available funds
payable to the order of the Company in an amount (the "EARLY SETTLEMENT AMOUNT")
equal to the sum of:
(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
A-11
(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 Contract Adjustment Payments
payable on such Payment Date with respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related
Units, the Pledged Senior Notes or Pledged Applicable Ownership Interests (as
specified in clause (i) of the definition of such term) underlying such Units
shall be released from the Pledge as provided in the Pledge Agreement and the
Holder shall be entitled to receive a number of newly issued shares of Common
Stock adjusted in the same manner and at the same time as the Settlement Rate is
adjusted (the "EARLY SETTLEMENT RATE").
Upon the occurrence of a Cash Merger, a Holder of Corporate Units may
effect Cash Merger Early Settlement of the Purchase Contract underlying such
Corporate Units pursuant to the terms of Section 5.04(b)(ii) of the Purchase
Contract Agreement. Upon Cash Merger Early Settlement of Purchase Contracts by a
Holder of the related Corporate Units, the Pledged Senior Notes or Pledged
Applicable Ownership Interests (as specified in clause (i) of the definition of
such term) in the Treasury Portfolio underlying such Corporate Units shall be
released from the Pledge as provided in the Pledge Agreement.
Upon registration of transfer of this Corporate Units Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Purchase Contract Agent
pursuant to the Purchase Contract Agreement), under the terms of the Purchase
Contract Agreement and the Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by this Corporate Units Certificate. The Company covenants and agrees,
and the Holder, by its acceptance hereof, likewise covenants and agrees, to be
bound by the provisions of this paragraph.
The Holder of this Corporate Units Certificate, by its acceptance hereof,
irrevocably authorizes the Purchase Contract Agent to enter into and perform the
related Purchase Contracts forming part of the Corporate Units evidenced hereby
on its behalf as its attorney-in-fact, expressly withholds any consent to the
assumption (i.e., affirmance) of the Purchase Contracts by the Company or its
trustee in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform its obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, irrevocably
authorizes the Purchase Contract Agent to enter into and perform the Purchase
Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to, and agrees to be bound by, the Pledge of such
Holder's right, title and interest in and to the Collateral Account, including
the Senior Notes or the appropriate Applicable Ownership Interests (as specified
in clause (i) of the definition of such term) in the Treasury Portfolio, as the
case may be, underlying this Corporate Units Certificate pursuant to the Pledge
Agreement. The Holder further covenants and agrees that, to the extent and in
the manner provided in the Purchase Contract Agreement and the Pledge Agreement,
but subject to the terms thereof, payments with respect to the aggregate
principal amount of the Pledged Senior Notes or the appropriate Applicable
Ownership Interests
A-12
(as specified in clause (i) of the definition of such term) in the Treasury
Portfolio, as the case may be, on the Purchase Contract Settlement Date shall be
paid by the Collateral Agent to the Company in satisfaction of such Holder's
obligations under such Purchase Contract and such Holder shall acquire no right,
title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall be governed by, and construed in accordance
with, the laws of the State of New York.
Prior to due presentment of this Certificate for registration of transfer,
the Company, the Purchase Contract Agent and its Affiliates and any agent of the
Company or the Purchase Contract Agent may treat the Person in whose name this
Corporate Units Certificate is registered as the owner of the Corporate Units
evidenced hereby for the purpose of receiving payments of interest payable on
the Senior Notes, receiving payments of Contract Adjustment Payments (subject to
any applicable record date), performance of the Purchase Contracts and for all
other purposes whatsoever, whether or not any payments in respect thereof be
overdue and notwithstanding any notice to the contrary, and neither the Company,
the Purchase Contract Agent nor any such agent shall be affected by notice to
the contrary.
The Purchase Contracts shall not, prior to the settlement thereof, entitle
the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Purchase Contract Agent.
A-13
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM: as tenants in common
UNIF GIFT MIN ACT: ______________ Custodian _____________
(cust) (minor)
Under Uniform Gifts to Minors Act of
---------------------------------------
TENANT: as tenants by the entireties
JT TEN: as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other
Identifying Number of Assignee)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or type name and address including Postal Zip Code of Assignee)
the within Corporate Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing attorney __________________, to transfer
said Corporate Units Certificates on the books of Xxxxxxxxx'x, Inc., with full
power of substitution in the premises.
Dated: Signature
-------------------------------------- ------------------------
NOTICE: The
signature to this
assignment must
correspond with
the name as it
appears upon the
face of the within
Corporate Units
A-14
Certificates in
every particular,
without alteration
or enlargement or
any change
whatsoever.
Signature Guarantee:
------------------------------------------------------------
A-15
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Corporate Units
evidenced by this Corporate Units Certificate be registered in the name of, and
delivered, together with a check in payment for any fractional share, 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.
Date:
----------------- -----------------------------------------
Signature
Signature Guarantee:
---------------------
(if assigned to another person)
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please (i) Please print name and address of
print such Person's name and Registered Holder:
address and (ii) provide a guarantee
of your signature:
------------------------------------ ----------------------------------------
Name Name
------------------------------------ ----------------------------------------
Address Address
------------------------------------ ----------------------------------------
------------------------------------ ----------------------------------------
------------------------------------ ----------------------------------------
Social Security or other
Taxpayer Identification
Number, if any
A-16
ELECTION TO SETTLE EARLY/CASH MERGER EARLY SETTLEMENT
The undersigned Holder of this Corporate Units Certificate hereby
irrevocably exercises the option to effect [Early Settlement] [Cash Merger Early
Settlement following a Cash Merger] in accordance with the terms of the Purchase
Contract Agreement with respect to the Purchase Contracts underlying the number
of Corporate Units evidenced by this Corporate Units Certificate specified
below. The undersigned Holder directs that a certificate for shares of Common
Stock or other securities deliverable upon such [Early Settlement] [Cash Merger
Early Settlement] be registered in the name of, and delivered, together with a
check in payment for any fractional share and any Corporate Units Certificate
representing any Corporate Units evidenced hereby as to which [Early Settlement]
[Cash Merger Early Settlement] of the related Purchase Contracts is not
effected, to the undersigned at the address indicated below unless a different
name and address have been indicated below. Pledged Senior Notes or the
appropriate Applicable Ownership Interests in the Treasury Portfolio, as the
case may be, deliverable upon such [Early Settlement] [Cash Merger Early
Settlement] will be transferred in accordance with the transfer instructions set
forth below. If shares are to be registered in the name of a Person other than
the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: Signature
--------------------- -------------------------------------
Signature Guarantee:
---------------------------------
A-17
Number of Units evidenced hereby as to which [Early Settlement] [Cash
Merger Early Settlement] of the related Purchase Contracts is being elected:
If shares of Common Stock or REGISTERED HOLDER
Corporate Units Certificates are
to be registered in the name of
and delivered to and Pledged
Senior Notes or the Applicable
Ownership Interests in the
Treasury Portfolio, as the case
may be, are to be transferred to
a Person other than the Holder,
please print such Person's name
and address:
Please print name and
address of Registered
Holder:
------------------------------------------ ---------------------------
Name Name
------------------------------------------ ---------------------------
Address Address
------------------------------------------ ---------------------------
------------------------------------------ ---------------------------
------------------------------------------ ---------------------------
Social Security or other
Taxpayer Identification
Number, if any
A-18
Transfer Instructions for Pledged Senior Notes or the Applicable Ownership
Interests in the Treasury Portfolio, as the case may be, transferable upon
[Early Settlement] [Cash Merger Early Settlement] or a Termination Event:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A-19
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have
been made:
Number of
Corporate Units
Amount of Amount of evidenced by this
increase in decrease in Global Signature of
Number of Number of Certificate authorized
Corporate Units Corporate Units following such signatory of
evidenced by the evidenced by the decrease or Purchase Contract
Date Global Certificate Global Certificate increase Agent
A-20
EXHIBIT B
(FORM OF FACE OF TREASURY UNIT CERTIFICATE)
[For inclusion in Global Certificate only - THIS CERTIFICATE
IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE CONTRACT AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF CEDE & CO., AS NOMINEE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS
EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A
TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No. _______ CUSIP No.
Number of Treasury Units: ______
XXXXXXXXX'X, INC.
Treasury Units
This Treasury Units Certificate certifies that [Cede & Co.] [
] is the registered Holder of the number of Treasury Units set forth above [for
inclusion in Global Certificates only - or such other number of Treasury Units
reflected in the Schedule of Increases or Decreases in the Global Certificate
attached hereto]. Each Treasury Unit consists of (i) a 1/40 undivided beneficial
ownership interest of a Treasury Security having a principal amount at maturity
equal to $1,000, subject to the Pledge of such Treasury Security by such Holder
pursuant to the Pledge Agreement, and (ii) the rights and obligations of the
Holder under one Purchase Contract with Xxxxxxxxx'x, Inc., a Delaware
corporation (the "COMPANY"). All capitalized terms used herein which are defined
in the Purchase Contract Agreement (as defined on the reverse hereof) have the
meaning set forth therein.
B-1
Pursuant to the Pledge Agreement, the Treasury Securities
constituting part of each Treasury Unit evidenced hereby have been pledged to
the Collateral Agent, for the benefit of the Company, to secure the obligations
of the Holder under the Purchase Contract comprising part of such Treasury Unit.
Each Purchase Contract evidenced hereby obligates the Holder
of this Treasury Units Certificate to purchase, and the Company, to sell, on May
16, 2007 (the "PURCHASE CONTRACT SETTLEMENT DATE"), at a price equal to $25 (the
"PURCHASE PRICE"), a number of newly issued shares of common stock, par value
$1.00 per share ("COMMON STOCK"), of the Company, equal to the Settlement Rate,
unless prior to or on the Purchase Contract Settlement Date there shall have
occurred a Termination Event, an Early Settlement or a Cash Merger Early
Settlement with respect to such Purchase Contract, all as provided in the
Purchase Contract Agreement and more fully described on the reverse hereof. The
purchase price (the "PURCHASE PRICE") for the shares of Common Stock purchased
pursuant to each Purchase Contract evidenced hereby, if not paid earlier, shall
be paid on the Purchase Contract Settlement Date by application of the proceeds
from the Treasury Securities at maturity pledged to secure the obligations of
the Holder under such Purchase Contract of the Treasury Units of which such
Purchase Contract is a part.
Each Purchase Contract evidenced hereby obligates the holder
to agree, for United States federal, state and local income and franchise tax
purposes, to (i) treat an acquisition of the Treasury Units as an acquisition of
the Treasury Securities and Purchase Contracts constituting the Treasury Units
and (ii) treat itself as owner of the applicable interest in the Collateral
Account, including the Treasury Securities.
The Company shall pay, on each Payment Date, in respect of
each Purchase Contract forming part of a Treasury Unit evidenced hereby, an
amount (the "CONTRACT ADJUSTMENT PAYMENTS") equal to [ ]% per year of the Stated
Amount. Such Contract Adjustment Payments shall be payable to the Person in
whose name this Treasury Units Certificate is registered at the close of
business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of
the Purchase Contract Agent in New York City. If the book-entry system for the
Treasury Units has been terminated, the Contract Adjustment
Payments will be payable, at the option of the Company, by check mailed to the
address of the Person entitled thereto at such Person's address as it appears on
the Security Register, or by wire transfer to the account designated by such
Person by a prior written notice to the Purchase Contract Agent.
Reference is hereby made to the further provisions set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Purchase Contract Agent by manual signature, this Treasury Units
Certificate shall not be entitled to any benefit under the Pledge Agreement or
the Purchase Contract Agreement or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company and the Holder specified above
have caused this instrument to be duly executed.
XXXXXXXXX'X, INC.
By:
-----------------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase Contracts)
By: U.S. BANK TRUST NATIONAL ASSOCIATION, not
individually but solely as attorney-in-fact
or such Holder
By:
-----------------------------------
Name:
Title:
Dated:
-------------------
B-3
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Treasury Units referred to in the
within-mentioned Purchase Contract Agreement.
U.S. BANK TRUST NATIONAL
ASSOCIATION,
as Purchase Contract Agent
By:
------------------------
Name:
-------------------
Title:
-----------------
Dated:
------------------------
B-4
(REVERSE OF TREASURY UNIT CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a
Purchase Contract Agreement, dated as of [ ], 2004 (as may be supplemented from
time to time, the "PURCHASE CONTRACT AGREEMENT") between the Company and U.S.
Bank Trust National Association, , as Purchase Contract Agent (including its
successors thereunder, herein called the "PURCHASE CONTRACT AGENT"), to which
the Purchase Contract Agreement and supplemental agreements thereto reference,
is hereby made for a description of the respective rights, limitations of
rights, obligations, duties and immunities thereunder of the Purchase Contract
Agent, the Company and the Holders and of the terms upon which the Treasury
Units Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder
of this Treasury Units Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to $25 (the "PURCHASE PRICE")
a number of newly issued shares of Common Stock equal to the Settlement Rate,
unless an Early Settlement, a Cash Merger Early Settlement or a Termination
Event with respect to the Units of which such Purchase Contract is a part shall
have occurred. The "SETTLEMENT RATE" is equal to:
(1) if the Adjusted Applicable Market Value (as defined below)
is greater than or equal to $[ ] (the "THRESHOLD APPRECIATION PRICE"),
shares of Common Stock per Purchase Contract (such number of shares, as
adjusted from time to time pursuant to Section 5.04, the "MINIMUM SHARE
NUMBER");
(2) if the Adjusted Applicable Market Value is less than the
Threshold Appreciation Price but greater than $[ ] (the "REFERENCE
PRICE"), the number of shares of Common Stock per Purchase Contract
having a value equal to the Stated Amount divided by the Adjusted
Applicable Market Value; and
(3) if the Adjusted Applicable Market Value is less than or
equal to the Reference Price, [ ] shares of Common Stock per Purchase
Contract (such number of shares, as adjusted from time to time pursuant
to Section 5.04, the "MAXIMUM SHARE NUMBER"),
in each case subject to adjustment as provided in the Purchase Contract
Agreement (and in each case rounded upward or downward to the nearest 1/10,000th
of a share).
No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, as provided in Section 5.09 of the Purchase
Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled
through Early Settlement or Cash Merger Early Settlement shall obligate the
Holder of the related Treasury Units to purchase at the Purchase Price, and the
Company to sell, a number of newly issued shares of Common Stock equal to the
Early Settlement Rate (in the case of an Early Settlement) or applicable
Settlement Rate (in the case of a Cash Merger Early Settlement).
The "ADJUSTED APPLICABLE MARKET VALUE" means (i) prior to any
adjustment pursuant to paragraph (i), (ii), (iii), (iv), (v), (vi), (vii) or (x)
of Section 5.04(a) of the Purchase
B-5
Contract Agreement, the Applicable Market Value, and (ii) at the time of and
after any adjustment of the Fixed Settlement Rate pursuant to paragraph (i),
(ii), (iii), (iv), (v), (vi), (vii) or (x) of Section 5.04(a) of the Purchase
Contract Agreement, the Applicable Market Value multiplied by a fraction, the
numerator of which shall be the Fixed Settlement Rate immediately after such
adjustment pursuant to paragraph (i), (ii), (iii), (iv), (v), (vi), (vii) or (x)
of Section 5.04(a) of the Purchase Contract Agreement and the denominator of
which shall be the Fixed Settlement Rate immediately prior to such adjustment;
provided, however, that if such adjustment to the Fixed Settlement Rate is
required to be made pursuant to the occurrence of any of the events contemplated
by paragraph (i), (ii), (iii), (iv), (v), (vi), (vii) or (x) of Section 5.04(a)
of the Purchase Contract Agreement during the period taken into consideration
for determining the Applicable Market Value, appropriate and customary
adjustments shall be made to the Fixed Settlement Rate.
The "APPLICABLE MARKET VALUE" means the average of the Closing
Price per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date.
The "CLOSING PRICE" per share of Common Stock on any date of
determination means:
(1) the closing sale price as of the close of the principal
trading session (or, if no closing price is reported, the last reported
sale price) per share on the New York Stock Exchange, Inc. (the "NYSE")
on such date;
(2) if Common Stock is not listed for trading on the NYSE on
any such date, the closing sale price (or, if no closing price is
reported, the last reported sale price) per share as reported in the
composite transactions for the principal United States national or
regional securities exchange on which Common Stock is so listed;
(3) if Common Stock is not so listed on a United States
national or regional securities exchange, the last closing sale price
per share as reported by the Nasdaq National Market, Inc.;
(4) if Common Stock is not so reported by the Nasdaq National
Market, Inc., 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
(5) if the bid price referred to above is not available, the
market value of Common Stock on such date as determined by a nationally
recognized independent investment banking firm retained by the Company
for purposes of determining the Closing Price.
A "TRADING DAY" means a day on which Common Stock (1) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of Common Stock.
B-6
In accordance with the terms of the Purchase Contract
Agreement, the Holder of this Treasury Unit shall pay the Purchase Price for the
shares of the Common Stock purchased pursuant to each Purchase Contract
evidenced hereby either by effecting an Early Settlement or, if applicable, a
Cash Merger Early Settlement of each such Purchase Contract or by applying a
principal amount of the Pledged Treasury Securities underlying such Holder's
Treasury Unit equal to the Stated Amount of such Purchase Contract to the
purchase of the Common Stock. A Holder of Treasury Units who (1) on or prior to
5:00 p.m. (New York City time) on the fifth Business Day prior to the Purchase
Contract Settlement Date, does not make an effective Early Settlement or (2) on
or prior to 5:00 p.m. (New York City time) on the fifth Business Day prior to
the Purchase Contract Settlement Date, does not make an effective Cash Merger
Early Settlement, shall pay the Purchase Price for the shares of Common Stock to
be issued under the related Purchase Contract from the proceeds of the Pledged
Treasury Securities.
The Company shall not be obligated to issue any shares of
Common Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment of the aggregate
purchase price for the shares of Common Stock to be purchased thereunder in the
manner set forth in the Purchase Contract Agreement.
The Treasury Units Certificates are issuable only in
registered form and only in denominations of a single Treasury Unit and any
integral multiple thereof. The transfer of any Treasury Units Certificate will
be registered and Treasury Units Certificates may be exchanged as provided in
the Purchase Contract Agreement. The 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 Purchase Contract Agent may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. A Holder who
elects to substitute Senior Notes or Applicable Ownership Interests in the
Treasury Portfolio, for Treasury Securities, thereby recreating Corporate Units,
shall be responsible for any fees or expenses associated therewith. Except as
provided in the Purchase Contract Agreement, for so long as the Purchase
Contract underlying a Treasury Unit remains in effect, such Treasury Unit shall
not be separable into its constituent parts, and the rights and obligations of
the Holder of such Treasury Unit in respect of the Treasury Security and the
Purchase Contract constituting such Treasury Unit may be transferred and
exchanged only as a Treasury Unit.
Unless the Treasury Portfolio has replaced the Senior Notes as
a component of the Corporate Units and subject to the conditions set forth in
the Purchase Contract Agreement, a Holder of Treasury Units may recreate, at any
time on or prior to 5:00 p.m. (New York City time) on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, Corporate Units by
delivering to the Securities Intermediary Senior Notes with an aggregate
principal amount, equal to the aggregate principal amount at maturity of the
Pledged Treasury Securities in exchange for the release of such Pledged Treasury
Securities in accordance with the terms of the Purchase Contract Agreement and
the Pledge Agreement. From and after such substitution, the Holder's Units shall
be referred to as a "CORPORATE UNIT". Any such creation of Corporate Units may
be effected only in multiples of 40 Treasury Units for 40 Corporate Units.
B-7
If the Treasury Portfolio has replaced the Senior Notes as a
component of the Corporate Units, a Holder may, at any time on or prior to the
second Business Day immediately preceding the Purchase Contract Settlement Date,
substitute Treasury Securities for the Applicable Ownership Interests in the
Treasury Portfolio, but only in integral multiples of [ ] Treasury Units. In
such an event, the Holder shall transfer Treasury Securities to the Collateral
Agent, and the Purchase Contract Agent shall instruct the Collateral Agent to
release the Pledge of and transfer to the Holder the appropriate Applicable
Ownership Interests in the Treasury Portfolio.
The Company shall pay, on each Payment Date, the Contract
Adjustment Payments payable in respect of each Purchase Contract to the Person
in whose name the Treasury Units Certificate evidencing such Purchase Contract
is registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Purchase
Contract Agent in New York City. If the book-entry system for the Corporate
Units has been terminated, the Contract Adjustment Payments will be payable, at
the option of the Company, by check mailed to the address of the Person entitled
thereto at such Person's address as it appears on the Security Register, or by
wire transfer to the account designated by such Person by a prior written notice
to the Purchase Contract Agent.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights of
the Holders to receive and the obligation of the Company to pay any Contract
Adjustment Payments, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Purchase Contract Agent or
the Company, if, on or prior to the Purchase Contract Settlement Date, a
Termination Event shall have occurred. Upon the occurrence of a Termination
Event, the Company shall promptly but in no event later than two Business Days
thereafter give written notice to the Purchase Contract Agent, the Collateral
Agent and the Holders, at their addresses as they appear in the Security
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Pledged Treasury Securities (as defined in the Pledge
Agreement) in accordance with the provisions of the Pledge Agreement. A Treasury
Unit shall thereafter represent the right to receive the interest in the
Treasury Security forming a part of such Treasury Unit, in accordance with the
terms of and except as set forth in, 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 Units 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 Contract evidenced by this
Certificate, the Holder of this Treasury Units Certificate shall deliver to the
Purchase Contract Agent at the Corporate Trust Office an Election to Settle
Early form set forth below duly completed and accompanied by payment in the form
of immediately available funds payable to the order of the Company in an amount
(the "EARLY SETTLEMENT AMOUNT") equal to the sum of:
(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
B-8
(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 Contract Adjustment Payments
payable on such Payment Date with respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the
related Units, the Pledged Treasury Securities underlying such Units shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of newly issued shares of Common Stock
adjusted in the same manner and at the same time as the Settlement Rate is
adjusted (the "EARLY SETTLEMENT RATE").
Upon the occurrence of a Cash Merger, a Holder of Treasury
Units may effect Cash Merger Early Settlement of the Purchase Contract
underlying such Treasury Units pursuant to the terms of Section 5.04(b)(ii) of
the Purchase Contract Agreement. Upon Cash Merger Early Settlement of Purchase
Contracts by a Holder of the related Treasury Units, the Pledged Treasury
Securities underlying such Treasury Units shall be released from the Pledge as
provided in the Pledge Agreement.
Upon registration of transfer of this Treasury Units
Certificate, the transferee shall be bound (without the necessity of any other
action on the part of such transferee, except as may be required by the Purchase
Contract Agent pursuant to the Purchase Contract Agreement), under the terms of
the Purchase Contract Agreement and the Purchase Contracts evidenced hereby and
the transferor shall be released from the obligations under the Purchase
Contracts evidenced by this Treasury Units Certificate. The Company covenants
and agrees, and the Holder, by its acceptance hereof, likewise covenants and
agrees, to be bound by the provisions of this paragraph.
The Holder of this Treasury Units Certificate, by its
acceptance hereof, authorizes the Purchase Contract Agent to enter into and
perform the related Purchase Contracts forming part of the Treasury Units
evidenced hereby on its behalf as its attorney-in-fact, expressly withholds any
consent to the assumption (i.e., affirmance) of the Purchase Contracts by the
Company or its trustee in the event that the Company becomes the subject of a
case under the Bankruptcy Code, agrees to be bound by the terms and provisions
thereof, covenants and agrees to perform its obligations under such Purchase
Contracts, consents to the provisions of the Purchase Contract Agreement,
authorizes the Purchase Contract Agent to enter into and perform the Purchase
Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Treasury Securities
underlying this Treasury Units Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect to the aggregate principal
amount of the Pledged Treasury Securities on the Purchase Contract Settlement
Date shall be paid by the Collateral Agent to the Company in satisfaction of
such Holder's obligations under such Purchase Contract and such Holder shall
acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of a majority
of the Purchase Contracts.
B-9
The Purchase Contracts shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York.
Prior to due presentment of this Certificate for registration
or transfer, the Company, the Purchase Contract Agent and its Affiliates and any
agent of the Company or the Purchase Contract Agent may treat the Person in
whose name this Treasury Units Certificate is registered as the owner of the
Treasury Units evidenced hereby for the purpose of receiving payments of
interest on the Treasury Securities, receiving payments of Contract Adjustment
Payments (subject to any applicable record date), performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not any payments in
respect thereof be overdue and notwithstanding any notice to the contrary, and
neither the Company, the Purchase Contract Agent nor any such agent shall be
affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of Common
Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Purchase Contract Agent.
B-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM: as tenants in common
Custodian
----------------------------------------
(cust) (minor)
UNIF GIFT MIN ACT:
Under Uniform Gifts to Minors Act of
----------------------------------------
TENANT: as tenants by the entireties
JT TEN: as joint tenants with right of
survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
--------------------------------------------------------------------------------
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
the within Corporate Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing attorney --------------------- , to
transfer said Treasury Units Certificates on the books of Xxxxxxxxx'x, Inc.,
with full power of substitution in the premises.
Dated: Signature:
------------------------------------------ -------------
NOTICE: The signature
to this assignment
must correspond with
the name as it
appears upon the face
of the within
Corporate Units
Certificates in every
particular, without
alteration or
enlargement or any
change whatsoever.
Signature Guarantee:
------------------------------------------------------------
B-11
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of Treasury
Units evidenced by this Treasury Units Certificate be registered in the name of,
and delivered, together with a check in payment for any fractional share, 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:
--------------------------------------------
If shares are to be registered in the name of and
delivered to a Person other than the Holder, please (i)
print such Person's name and address and (ii) provide a
guarantee of your signature:
------------------------------------------------
Name
------------------------------------------------
Address
------------------------------------------------
------------------------------------------------
------------------------------------------------
Social Security or other
Taxpayer Identification
Number, if any
------------------------------------------------
Signature
Signature Guarantee:
--------------------------
(if assigned to another person)
REGISTERED HOLDER
Please print name and address of Registered Holder:
------------------------------------------------
Name
------------------------------------------------
Address
------------------------------------------------
------------------------------------------------
------------------------------------------------
B-12
ELECTION TO SETTLE EARLY/CASH MERGER EARLY SETTLEMENT
The undersigned Holder of this Treasury Units Certificate
hereby irrevocably exercises the option to effect [Early Settlement] [Cash
Merger Early Settlement upon a Cash Merger] in accordance with the terms of the
Purchase Contract Agreement with respect to the Purchase Contracts underlying
the number of Treasury Units evidenced by this Treasury Units Certificate
specified below. The option to effect [Early Settlement] [Cash Merger Early
Settlement] may be exercised only with respect to Purchase Contracts underlying
Treasury Units with an aggregate Stated Amount equal to $[ ] or an integral
multiple thereof. The undersigned Holder directs that a certificate for shares
of Common Stock or other securities deliverable upon such [Early Settlement]
[Cash Merger Early Settlement] be registered in the name of, and delivered,
together with a check in payment for any fractional share and any Treasury Units
Certificate representing any Treasury Units evidenced hereby as to which Cash
Merger Early Settlement of the related Purchase Contracts is not effected, to
the undersigned at the address indicated below unless a different name and
address have been indicated below. Pledged Treasury Securities deliverable upon
such [Early Settlement] [Cash Merger Early Settlement] will be transferred in
accordance with the transfer instructions set forth below. If shares are to be
registered in the name of a Person other than the undersigned, the undersigned
will pay any transfer tax payable incident thereto.
Dated: Signature:
------------------------------------ ---------------------
Signature Guarantee:
-------------------------------
B-13
Number of Units evidenced hereby as to which [Early
Settlement] [Cash Merger Early Settlement] of the related Purchase Contracts is
being elected:
If shares of Common Stock or REGISTERED HOLDER Corporate Units Certificates are
to be registered in the name of and Please print name and address of delivered
to and Pledged Senior Notes or the Applicable Ownership Interests in the
Treasury Portfolio, as the case may be, are to be transferred to a Person other
than the Holder, please print such Person's name and address:
REGISTERED HOLDER
Please print name and
address of Registered Holder:
-------------------------- -----------------------------
Name Name
-------------------------- -----------------------------
Address Address
-------------------------- -----------------------------
-------------------------- -----------------------------
-------------------------- -----------------------------
Social Security or other
Taxpayer Identification
Number, if any
B-14
Transfer Instructions for Pledged Treasury Securities
Transferable upon [Early Settlement] [Cash Merger Early Settlement] or a
Termination Event:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
B-15
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
Number of Corporate
Amount of increase Units evidenced by
in Number of Amount of decrease in this Global Signature of
Corporate Units Number of Corporate Certificate authorized signatory
evidenced by the Units evidenced by following such of Purchase Contract
Date Global Certificate the Global Certificate decrease or increase Agent
--------- ------------------ ---------------------- -------------------- --------------------
--------- ------------------ ---------------------- -------------------- --------------------
--------- ------------------ ---------------------- -------------------- --------------------
--------- ------------------ ---------------------- -------------------- --------------------
--------- ------------------ ---------------------- -------------------- --------------------
--------- ------------------ ---------------------- -------------------- --------------------
B-16
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
U.S. Bank Trust National Association
The Purchase Contract Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Re: [ Corporate Units] [ Treasury Units] of Xxxxxxxxx'x,
Inc., a Delaware corporation (the "COMPANY").
The undersigned Holder hereby notifies you that it has
delivered to U.S. Bank Trust National Association, as Securities Intermediary,
for credit to the Collateral Account, $_____ aggregate principal amount of
[Senior Notes] [Treasury Securities] in exchange for the [Pledged Senior Notes]
[Pledged Treasury Securities] [Pledged Applicable Ownership Interest] held in
the Collateral Account, in accordance with the Pledge Agreement, dated as of
[ ], 2004 (the "PLEDGE AGREEMENT"; unless otherwise defined herein, terms
defined in the Pledge Agreement are used herein as defined therein), between
you, the Company, the Collateral Agent, the Custodial Agent and the Securities
Intermediary. The undersigned Holder has paid all applicable fees and expenses
relating to such exchange. The undersigned Holder hereby instructs you to
instruct the Collateral Agent to release to you on behalf of the undersigned
Holder the [Pledged Senior Notes] [Pledged Treasury Securities] related to such
[Corporate Units] [Treasury Units] [Pledged Applicable Ownership Interest].
Date:
----------------------------------- ---------------------------
Signature Guarantee:
Please print name and address of ---------------------------
Registered Holder:
---------------------------------------- ---------------------------
Name Social Security or other
Taxpayer Identification
Number, if any
Address
----------------------------------------
----------------------------------------
-----------------------------------------
C-1
EXHIBIT D
NOTICE FROM PURCHASE CONTRACT AGENT
TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
------------------------------
-------------------------------
Attention:
Telecopy:
----------------
Re: [Corporate Units] [Treasury Units] of Xxxxxxxxx'x,
Inc., a Delaware corporation (the "Company")
Please refer to the Purchase Contract Agreement, dated as of [
], 2004 (the "PURCHASE CONTRACT AGREEMENT"; unless otherwise defined herein,
terms defined in the Purchase Contract Agreement are used herein as defined
therein), between the Company and the undersigned, as Purchase Contract Agent
and as attorney-in-fact for the holders of Corporate Units and Treasury Units
from time to time.
We hereby notify you that a Termination Event has occurred and
that [the Senior Notes] [Applicable Ownership Interests (as specified in clause
(i) of the definition of such term) in the Treasury Portfolio] [the Treasury
Securities] compromising a portion of your ownership interest in ______,
[Corporate Units] [Treasury Units] have been released and are being held by us
for your account pending receipt of transfer instructions with respect to such
[Senior Notes] [Applicable Ownership Interests] [Treasury Securities] (the
"RELEASED SECURITIES").
Pursuant to Section 3.15 of the Purchase Contract Agreement,
we hereby request written transfer instructions with respect to the Released
Securities. Upon receipt of your instructions and upon transfer to us of your
[Corporate Units][Treasury Units] effected through book-entry or by delivery to
us of your [Corporate Units Certificate][Treasury Units Certificate], we shall
transfer the Released Securities by book-entry transfer or other appropriate
procedures, in accordance with your instructions.
D-1
In the event you fail to effect such transfer or delivery, the
Released Securities and any distributions thereon, shall be held in our name, or
a nominee in trust for your benefit, until such time as such [Corporate
Units][Treasury Units] are transferred or your [Corporate Units Certificate]
[Treasury Units Certificate] is surrendered or satisfactory evidence is provided
that such [Corporate Units Certificate][Treasury Units Certificate] has been
destroyed, lost or stolen, together with any indemnification that we or the
Company may require.
Date: By: U.S. Bank Trust National
Association as the Purchase
Contract Agent
By:
-----------------------------
Name:
Title: Authorized Signatory
D-2
EXHIBIT E
NOTICE TO SETTLE BY CASH
U.S. Bank Trust National Association
The Purchase Contract Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Re: Corporate Units of Xxxxxxxxx'x, Inc., a Delaware
corporation (the "COMPANY")
The undersigned Holder hereby irrevocably notifies you in
accordance with Section 5.02 of the Purchase Contract Agreement, dated as of
[ ], 2004 (the "PURCHASE CONTRACT AGREEMENT"; unless otherwise defined herein,
terms defined in the Purchase Contract Agreement are used herein as defined
therein), between the Company and you, as Purchase Contract Agent and as
attorney-in-fact for the Holders of the Purchase Contracts, that such Holder has
elected to pay to the Securities Intermediary for deposit in the Collateral
Account, on or prior to 5:00 p.m. (New York City time) on the fourth Business
Day immediately preceding the Purchase Contract Settlement Date (in lawful money
of the United States by certified or cashiers' check or wire transfer, in
immediately available funds), $ as the Purchase Price for the shares of
Common Stock issuable to such Holder by the Company with respect to Purchase
Contracts on the Purchase Contract Settlement Date. The undersigned Holder
hereby instructs you to notify promptly the Collateral Agent of the undersigned
Holders' election to make such Cash Settlement with respect to the Purchase
Contracts related to such Holder's Corporate Units.
Date:
----------------------------- -------------------------------
Signature
Signature Guarantee:
-----------
Please print name and address of Registered Holder:
------------------------------------
------------------------------------
E-1
EXHIBIT F
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Settlement of Purchase Contract through Remarketing)
U.S. Bank Trust National Association
The Collateral Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Re: Corporate Units of Xxxxxxxxx'x, Inc., a Delaware
corporation (the "COMPANY")
Please refer to the Purchase Contract Agreement, dated as of [
], 2004 (the "PURCHASE CONTRACT AGREEMENT"; unless otherwise defined herein,
terms defined in the Purchase Contract Agreement are used herein as defined
therein), between the Company and the undersigned, as Purchase Contract Agent
and as attorney-in-fact for the Holders of Corporate Units from time to time.
In accordance with Section 5.02 of the Purchase Contract
Agreement and, based on notices of [Early Settlements] [Cash Settlements]
received from Holders of Corporate Units as of 5:00 p.m. (New York City time),
on the fifth Business Day immediately preceding the [Initial] [Final]
Remarketing Date, we hereby notify you that an aggregate principal amount of $
Senior Notes are to be tendered for purchase in the Remarketing.
Date: By: U.S. Bank Trust National
Association as the Purchase
Contract Agent
By:
-----------------------------
Name:
Title: Authorized Signatory
F-1
