1
Exhibit 4(t)
================================================================================
CMS ENERGY CORPORATION
AND
THE BANK OF NEW YORK
as Unit Agent
---------------------------
MASTER UNIT AGREEMENT
---------------------------
Dated as of July 8, 1999
================================================================================
2
TABLE OF CONTENTS
Page
----
RECITALS ......................................................................1
WITNESSETH.....................................................................1
ARTICLE I DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION..........................................1
SECTION 1.01 Definitions...............................................1
SECTION 1.02 Compliance Certificates and Opinions.....................10
SECTION 1.03 Form of Documents Delivered to Unit Agent................11
SECTION 1.04 Acts of Holders; Record Dates............................11
SECTION 1.05 Notices, etc. to Unit Agent and the Company..............13
SECTION 1.06 Notice to Holders; Waiver................................14
SECTION 1.07 Effect of Headings and Table of Contents.................14
SECTION 1.08 Successors and Assigns...................................14
SECTION 1.09 Separability Clause......................................14
SECTION 1.10 Benefits of Agreement....................................15
SECTION 1.11 Governing Law............................................15
SECTION 1.12 Legal Holidays...........................................15
SECTION 1.13 Counterparts.............................................16
SECTION 1.14 Inspection of Agreement..................................16
ARTICLE II UNIT CERTIFICATE FORMS.........................................16
SECTION 2.01 Forms of Unit Certificates Generally.....................16
SECTION 2.02 Form of Unit Agent's Certificate of
Authentication...........................................17
ARTICLE III THE UNITS......................................................17
SECTION 3.01 Title and Terms; Denominations...........................17
SECTION 3.02 Rights and Obligations Evidenced by the Unit
Certificates.............................................17
SECTION 3.03 Execution, Authentication, Delivery and Dating...........18
SECTION 3.04 Temporary Unit Certificates..............................19
SECTION 3.05 Registration; Registration of Transfer and Exchange......20
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Unit
Certificates.............................................22
SECTION 3.07 Persons Deemed Owners....................................23
SECTION 3.08 Cancellation.............................................24
i
3
Page
----
SECTION 3.09 Substitution of Pledged Securities and Creation of
Stripped Units; Units Not Otherwise Separable...........25
SECTION 3.10 Payments on the Units....................................26
SECTION 3.11 No Consent to Assumption.................................27
ARTICLE IV THE PLEDGED SECURITIES.........................................27
SECTION 4.01 INTENTIONALLY LEFT BLANK.................................27
SECTION 4.02 Transfer of Pledged Securities Upon Occurrence
of Termination Event.....................................27
ARTICLE V THE PURCHASE CONTRACTS.........................................28
SECTION 5.01 Purchase of Shares of Common Stock.......................28
SECTION 5.02 Contract Payments........................................30
SECTION 5.03 Deferral of Payment Dates For Contract Payment...........31
SECTION 5.04 Payment of Purchase Price................................32
SECTION 5.05 Issuance of Shares of Common Stock.......................34
SECTION 5.06 Adjustment of Settlement Rate............................35
SECTION 5.07 Notice of Adjustments and Certain Other Events...........41
SECTION 5.08 No Fractional Shares.....................................42
SECTION 5.09 Charges and Taxes........................................42
SECTION 5.10 Termination Event; Notice................................43
SECTION 5.11 Early Settlement.........................................43
ARTICLE VI REMEDIES.......................................................45
SECTION 6.01 Unconditional Rights of Holders..........................45
SECTION 6.02 Restoration of Rights and Remedies.......................46
SECTION 6.03 Rights and Remedies Cumulative...........................46
SECTION 6.04 Delay or Omission Not Waiver.............................46
SECTION 6.05 Undertaking for Costs....................................46
SECTION 6.06 Waiver of Stay or Extension Laws.........................47
ARTICLE VII THE UNIT AGENT.................................................47
SECTION 7.01 Certain Duties and Responsibilities......................47
SECTION 7.02 Notice of Default........................................48
SECTION 7.03 Certain Rights of Unit Agent.............................48
SECTION 7.04 Not Responsible for Recitals or Issuance of Units........50
SECTION 7.05 May Hold Units...........................................50
SECTION 7.06 Money Held in Trust......................................50
SECTION 7.07 Compensation and Reimbursement...........................50
SECTION 7.08 Corporate Unit Agent Required; Eligibility...............51
SECTION 7.09 Resignation and Removal; Appointment of
Successor................................................51
ii
4
Page
----
SECTION 7.10 Acceptance of Appointment by Successor...................53
SECTION 7.11 Merger, Conversion, Consolidation or Succession
to Business..............................................53
SECTION 7.12 Preservation of Information; Communications to
Holders..................................................54
SECTION 7.13 No Obligations of Unit Agent.............................54
SECTION 7.14 Tax Compliance...........................................55
ARTICLE VIII SUPPLEMENTAL AGREEMENTS........................................55
SECTION 8.01 Supplemental Agreements Without Consent of
Holders...................................................55
SECTION 8.02 Supplemental Agreements with Consent of Holders...........56
SECTION 8.03 Execution of Supplemental Agreements......................58
SECTION 8.04 Effect of Supplemental Agreements.........................58
SECTION 8.05 Reference to Supplemental Agreements......................58
ARTICLE IX CONSOLIDATION, MERGER, SALE OR
CONVEYANCE.....................................................59
SECTION 9.01 Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain
Conditions...............................................59
SECTION 9.02 Rights and Duties of Successor Corporation...............59
SECTION 9.03 Opinion of Counsel to Unit Agent.........................60
ARTICLE X COVENANTS......................................................60
SECTION 10.01 Performance Under Purchase Contracts.....................60
SECTION 10.02 Maintenance of Office or Agency..........................60
SECTION 10.03 Company to Reserve Common Stock..........................61
SECTION 10.04 Covenants as to Common Stock.............................61
SECTION 10.05 Statements of Officers of the Company as to
Default..................................................61
EXHIBIT A FORM OF NORMAL UNIT CERTIFICATE...............................A-1
SETTLEMENT INSTRUCTIONS......................................................A-8
REQUEST TO CREATE STRIPPED UNITS............................................A-10
EXHIBIT B FORM OF STRIPPED UNIT CERTIFICATE.............................B-1
SETTLEMENT INSTRUCTIONS......................................................B-7
iii
5
Page
----
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION............................AA-3
FORM OF REVERSE OF SECURITY.................................................AA-4
ASSIGNMENT..................................................................AA-6
NOTICE TO REQUIRE EXERCISE OF JUNIOR SUBORDINATED
DEBENTURE PUT OPTION...................................................AA-7
iv
6
MASTER UNIT AGREEMENT, dated as of July 8, 1999, between CMS Energy
Corporation, a Michigan corporation (the "Company"), and The Bank of New York, a
New York banking corporation, acting as unit agent for the Holders of Units from
time to time (the "Unit Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Unit Certificates evidencing the Units.
All things necessary to make the Company's obligations under the Units,
when the Unit Certificates are executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Unit Agent, as in this
Agreement provided, the valid obligations of the Company, and to constitute
these presents a valid agreement of the Company, in accordance with its terms,
have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the Units by
the Holders thereof, it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular; and
(b) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 1.04.
7
"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.
"Aggregate Call Option Exercise Consideration" has the meaning set forth in
the Call Option Agreement.
"Applicable Market Value" has the meaning specified in Section 5.01.
"Board of Directors" means the board of directors of the Company or a duly
authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of Directors,
a copy of which has been certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification and delivered to the
Unit Agent.
"Business Day" means any day that is not a Saturday, Sunday or a day on
which banking institutions in The City of New York are authorized or obligated
by law or executive order to be closed.
"Call Option" means an option entitling the Call Option Holder to acquire
the Trust Preferred Securities or Junior Subordinated Debentures underlying the
related Normal Unit on the terms and subject to the conditions set forth in the
Call Option Agreement.
"Call Option Agreement" means the Call Option Agreement, dated as of the
date hereof, between the Call Option Holder named therein and the Unit Agent, in
its capacity as Unit Agent and as attorney-in-fact for the Holders from time to
time of the Normal Units, the form of which is attached hereto as Exhibit C, as
the same may be amended from time to time in accordance with the terms hereof
and thereof.
2
8
"Call Option Expiration Date" means April 1, 2002 (or, if such date is not
a Business Day, the next succeeding Business Day).
"Call Option Holder" means the Person named as the Call Option Holder in
the Call Option Agreement.
"Call Settlement Date" means the date on which the Call Options are settled
pursuant to the Call Option Agreement.
"Closing Price" has the meaning specified in Section 501.
"Collateral Agent" means Chase Manhattan Bank, as Collateral Agent under
the Pledge Agreement, until a successor Collateral Agent shall have become such
pursuant to the applicable provisions of the Pledge Agreement, and thereafter
"Collateral Agent" shall mean the Person that is then the Collateral Agent
thereunder.
"Common Stock" means the Common Stock, $.01 par value per share, of the
Company.
"Company" means the Person designated as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Contract Payment" means, with respect to each Purchase Contract, an amount
payable by the Company to the Holder of the related Unit, accruing on the Stated
Amount of such Unit from and including the date of first issuance of any Units
to but excluding the Stock Purchase Date and payable quarterly in arrears on
each Quarterly Payment Date to and including the Stock Purchase Date at a rate
per annum equal to the Contract Payment Rate (and computed on the basis of a
360-day year of twelve 30-day months), plus any additional fees accrued thereon
pursuant to Section 5.03.
"Contract Payment Rate" means .125%.
"Corporate Trust Office" means the principal office of the Unit Agent in
the Borough of Manhattan, The City of New York, at which at any particular time
its corporate trust business shall be administered, which office at the date
hereof is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx
00000; Attention: Corporate Trust Administration.
3
9
"Current Market Price" has the meaning specified in Section 5.06(a)(8).
"Declaration" means the Declaration of Trust, dated as of June 13, 1997 and
amended and restated as of the date hereof, executed by the Administrators, the
Sponsor and the Trustees of the Trust, as the same may be amended or
supplemented from time to time in accordance with the terms thereof.
"Deferral Rate" means 8.625% per annum and, for the period after the Call
Option Expiration Date, the Reset Rate.
"Depositary" means a clearing agency registered under the Exchange Act that
is designated to act as Depositary for Global Units as contemplated by Section
3.05.
"Early Settlement" has the meaning specified in Section 5.11(a).
"Early Settlement Amount" has the meaning specified in Section 5.11(a).
"Early Settlement Date" has the meaning specified in Section 5.1(a).
"Early Settlement Rate" has the meaning specified in Section 5.11(b).
"Exchange Act" means the Securities Exchange Act of 1934 or any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.04.
"Floor Price" has the meaning specified in Section 5.01.
"Global Unit Certificate" means a Unit Certificate that evidences all or
part of the Normal Units or a Unit Certificate that evidences all or a part of
the Stripped Units and is registered in the name of the Depositary or a nominee
thereof.
"Holder" means a Person in whose name a Unit Certificate is registered in
the Unit Register; "Holder", when used with respect to any particular Unit
Certificate (or Unit), means a Person in whose name such Unit Certificate (or
the Unit Certificate evidencing such Unit) is registered in the relevant Unit
Register.
"Indenture" means the Indenture, dated as of June 1, 1997 hereof, between
the Company and The Bank of New York, as Trustee, as the same may be amended,
modified or supplemented from time to time in accordance with the terms thereof.
4
10
"Issuer Order" or "Issuer Request" means a written order or request signed
in the name of the Company by its Chairman of the Board, any Vice Chairman, its
President or a Vice President and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Unit Agent.
"Junior Subordinated Debenture Put Option" has the meaning specified for
the term "Put Option" in the Indenture.
"Junior Subordinated Debentures" means the 8.625% Junior Subordinated
Deferrable Interest Debentures of the Company due 2004 issued under the
Indenture.
"Normal Unit" means the rights to purchase Common Stock under a Purchase
Contract, together with beneficial ownership of the Trust Preferred Securities
or other Pledged Securities pledged to secure the obligations referred to in (a)
and (b) below, subject to (a) the obligations owed to the Company under such
Purchase Contract, (b) for so long as any Call Options remain exercisable, the
obligations owed to the Call Option Holder under a Call Option and (c) the
pledge arrangements securing the foregoing obligations; provided, however, that
the term "Normal Unit" will not include any Stripped Unit.
"NYSE" has the meaning specified in Section 5.01.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, any Vice Chairman, the President or any Vice President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company and delivered to the Unit Agent.
"Opinion of Counsel" means an opinion in writing signed by legal counsel,
who may be an employee of or counsel to the Company.
"Outstanding Unit Certificates" means, as of the date of determination, all
Unit Certificates theretofore authenticated, executed and delivered pursuant to
this Agreement, but not including:
(a) Unit Certificates theretofore canceled by the Unit Agent or
delivered to the Unit Agent for cancellation; and
(b) Unit Certificates in exchange for or in lieu of which other Unit
Certificates have been authenticated, executed on behalf of the Holder and
delivered pursuant to this Agreement, other than any such Unit Certificate in
respect of which
5
11
there shall have been presented to the Unit Agent proof satisfactory to it that
such Unit Certificate is held by a bona fide purchaser in whose hands the Units
evidenced by such Unit Certificate are valid obligations of the Company.
"Outstanding Units" means, as of the date of determination, all Units
evidenced by then Outstanding Unit Certificates, except, on or after the
Termination Date or Stock Purchase Date, Units for which the underlying Pledged
Securities or the Common Stock purchasable upon settlement of the underlying
Purchase Contracts, as the case may be, have been theretofore deposited with the
Unit Agent in trust for the Holders of such Units; provided, however, that in
determining whether the Holders of the requisite number of 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, except that, in determining whether the Unit
Agent shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Units which a
Responsible Officer of the Unit Agent actually knows to be so owned shall be so
disregarded. Units so owned which have been pledged in good faith may be
regarded as Outstanding Units if the pledgee establishes to the satisfaction of
the Unit 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.
"Paid Units" has the meaning specified in Section 5.04(a).
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" means the pledge of the Pledged Securities under the Pledge
Agreement.
"Pledge Agreement" means the Pledge Agreement, dated as of the date hereof,
among the Company, the Call Option Holder, the Collateral Agent and the Unit
Agent, in its capacity as Unit Agent and as attorney-in-fact for the Holders
from time to time of the Units, the form of which is attached hereto as Exhibit
D, as the same may be amended from time to time in accordance with the terms
hereof and thereof.
"Pledged Securities" means the securities pledged to the Collateral Agent
pursuant to the Pledge and constituting a part of the Units.
6
12
"Predecessor Unit Certificate" of any particular Unit Certificate means
every previous Unit Certificate evidencing all or a portion of the rights and
obligations of the Holder under the Units evidenced thereby; and, for the
purposes of this definition, any Unit Certificate authenticated and delivered
under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Unit Certificate shall be deemed to evidence the same rights and
obligations of the Holder as the mutilated, destroyed, lost or stolen Unit
Certificate.
"Present Value" shall have the meaning set forth in the Pledge Agreement.
"Principal Agreements" means this Agreement, the Pledge Agreement and the
Call Option Agreement.
"Purchase Contract" means a contract obligating the Company to sell and the
Holder of the related Unit to purchase Common Stock on the terms and subject to
the conditions set forth in Article Five hereof.
"Purchase Contract Settlement Fund" has the meaning specified in Section
5.05.
"Purchased Shares" has the meaning specified in Section 5.06(a)(6).
"Quarterly Payment Date" means each January 1, April 1, July 1 and
October 1, commencing October 1.
"Record Date", when used with respect to any payment date, means the 15th
day of the month immediately preceding the month including such payment date;
and provided further, that if payments are in respect of Trust Preferred
Securities or Junior Subordinated Debentures underlying Normal Units, "Record
Date", when used with respect to such payments, means the record date for such
payments determined as provided under the Declaration or the Indenture, as the
case may be.
"Reorganization Event" has the meaning specified in Section 5.06(b).
"Responsible Officer", when used with respect to the Unit Agent, means any
vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any trust officer or assistant trust officer, or any other
officer or assistant officer of the Unit Agent customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular
7
13
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Settlement Rate" has the meaning specified in Section 5.01.
"Stated Amount" means $41.50 per Unit.
"Stock Purchase Date" means July 1, 2002.
"Stripped Unit" means the rights to purchase Common Stock under a Purchase
Contract, together with beneficial ownership of the Treasury Securities pledged
to secure the obligations referred to in (a) below, subject to (a) the
obligations owed to the Company under such Purchase Contract and (b) the pledge
arrangements securing the foregoing obligations; provided, however, that the
term "Stripped Unit" will only include Units issued as a result of a Stripped
Unit Creation as contemplated by Section 3.09.
"Stripped Unit Creation" has the meaning specified in Section 3.09(a).
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following events at
any time on or prior to the Stock Purchase Date: (a) a decree or order of a
court having jurisdiction in the premises shall have been entered adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, rehabilitation, liquidation, receivership or other
similar relief with respect of the Company under the United States Bankruptcy
Code or any other similar applicable Federal or State law, and, unless such
decree or order shall have been entered within 60 days prior to the Stock
Purchase Date, such decree or order shall have continued undischarged and
unstayed for a period of 60 days, or (b) a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver or liquidator or
trustee or assignee in bankruptcy or insolvency of the Company or of its
property, or for the winding up or liquidation of its affairs, shall have been
entered, and, unless such decree or order shall have been entered within 60 days
prior to the Stock Purchase Date, such decree or order shall have continued
undischarged and unstayed for a period of 60 days, or (c) the Company shall
institute bankruptcy, insolvency or similar proceedings, or shall consent to the
filing of a bankruptcy, insolvency or similar proceeding against it, or shall
file a petition or answer or consent seeking reorganization, rehabilitation,
liquidation, receivership or
8
14
other similar relief under the United States Bankruptcy Code or any other
similar applicable Federal or State law, or shall consent to the filing of any
such petition, or shall consent to the appointment of a receiver or liquidator
or trustee or assignee in bankruptcy or insolvency of it or of its property, or
shall make an assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 or any statute successor
thereto, in each case as amended from time to time.
"Trading Day" has the meaning specified in Section 5.01.
"Treasury Securities" means United States Treasury Securities.
"Trust" means CMS Energy Trust II, a statutory business trust created under
the laws of the State of Delaware.
"Trust Preferred Securities"(sm) means 8.625% Trust Preferred Securities of
the Trust issued under the Declaration, which term may refer to a single
security or more than one security as the context may require.
"Underwriting Agreement" means the Underwriting Agreement dated July 1,
1999 among the Company, the Trust and Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation and Banc of America Securities LLC as
the Underwriters named therein.
"Unit Agent" means the Person named as the "Unit Agent" in the first
paragraph of this Agreement until a successor Unit Agent shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter "Unit
Agent" shall mean the Person who is then the Unit Agent hereunder.
"Unit Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Normal Units or Stripped
Units, as the case may be, specified on such certificate.
"Unit Register" and "Unit Registrar" have the respective meanings specified
in Section 3.05.
9
15
"Units" means the Normal Units and, if any are issued, the Stripped Units.
The Purchase Contracts, Call Options and/or Pledged Securities constituting a
part of any Units are sometimes referred to herein as "underlying" such Units
and are sometimes herein said to "underlie" such Units.
"Unpaid Units" has the meaning specified in Section 5.04(a).
"Vice President" means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president".
SECTION 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Unit Agent to take any action under
any provision of this Agreement, the Company shall furnish to the Unit Agent at
the Unit Agent's request (i) 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/or (ii) an Opinion of Counsel
stating that, in the opinion of such counsel, all such conditions precedent, if
any, have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Agreement relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement shall include:
(a) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
10
16
SECTION 1.3 Form of Documents Delivered to Unit Agent.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Unit 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
11
17
any purpose of this Agreement and (subject to Section 7.01) conclusive in favor
of the Unit Agent and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Unit Agent deems sufficient.
(c) The ownership of Units shall be proved by the Unit 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 Unit 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
Unit Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Unit Certificate.
(e) The Company may set any day 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 Outstanding Units on such record date, and no other Holders, shall
be entitled to take the relevant action, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite number of Outstanding Units on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite number of Outstanding Units on the date
such action is taken. Promptly after any record date is set pursuant to this
12
18
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 Unit 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, 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 Unit Agent in writing, and to each Holder of Units in the manner set forth
in Section 1.06, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this
Section, the Company shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
SECTION 1.5 Notices, etc. to Unit Agent and the Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Agreement
to be made upon, given or furnished to, or filed with,
(a) the Unit Agent by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing (which may be via facsimile) and
personally delivered or mailed, first-class postage prepaid, to the Unit Agent
at 000 Xxxxxxx Xxxxxx, Xxxxx 00Xxxx, Xxx Xxxx, Xxx Xxxx, 00000 Attention:
Corporate Trust Administration or at any other address previously furnished in
writing by the Unit Agent to the Holders and the Company and shall be deemed
delivered when actually received by a Responsible Officer of the Unit Agent, or
(b) the Company by the Unit Agent or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or mailed,
first-class postage prepaid, to the Company at Fairlane Plaza South, Suite 1100,
000 Xxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: General Counsel, or
at any other address previously furnished in writing by the Company to the Unit
Agent and the Holders.
13
19
SECTION 1.6 Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Unit 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
Unit Agent, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Unit Agent shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.7 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.8 Successors and Assigns.
All covenants and agreements in this Agreement by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.9 Separability Clause.
In case any provision in this Agreement or in the 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.
14
20
SECTION 1.10 Benefits of Agreement.
Nothing in this Agreement or in the Unit Certificates, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefits or any legal or equitable right, remedy
or claim under this Agreement. The Holders from time to time shall be
beneficiaries of this Agreement and shall be bound by all of the terms and
conditions hereof and of the Units evidenced by their Unit Certificates by
their acceptance of delivery thereof.
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, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
SECTION 1.12 Legal Holidays.
In any case where any Quarterly Payment Date or the Stock Purchase Date
shall not be a Business Day, then (notwithstanding any other provision of this
Agreement or of the Units) payment in respect of distributions or interest on or
principal of Pledged Securities or Contract Payments shall not be made, Purchase
Contracts shall not be performed and other actions described herein shall not
occur, but such payments shall be made, the Purchase Contracts shall be
performed and such other actions shall occur, as applicable, on the next
succeeding Business Day with the same force and effect as if made on such
Quarterly Payment Date or Stock Purchase Date, as the case may be; provided,
that to the extent such payment is made on the next succeeding Business Day, no
distributions or interest shall accrue or be payable by the Company or any
Holder for the period from and after any such Quarterly Payment Date or Stock
Purchase Date, as the case may be, to the date of payment or performance; except
that if such next succeeding Business Day is in the next succeeding calendar
year, such payment shall be made, the Purchase Contracts shall be performed or
such other action shall occur on the immediately preceding Business Day with the
same force and effect as if made on such Quarterly Payment Date or the Stock
Purchase Date.
15
21
SECTION 1.13 Counterparts.
This Agreement may be executed in any number of counterparts, each of
which, when so executed, shall be deemed an original, but all such counterparts
shall together constitute one and the same instrument.
SECTION 1.14 Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times upon
reasonable prior written notice at the Corporate Trust Office for inspection by
any Holder.
ARTICLE II
UNIT CERTIFICATE FORMS
SECTION 2.1 Forms of Unit Certificates Generally.
Unit Certificates evidencing Normal Units shall be in substantially the
form set forth in Exhibit A hereto and Unit Certificates evidencing the Stripped
Units shall be in substantially the form of Exhibit B hereto, in each case 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 Depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Unit Certificates, as evidenced by their
execution of the Unit Certificates.
The definitive Unit Certificates shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing the Unit Certificates,
consistent with the provisions of this Agreement, as evidenced by their
execution thereof.
Every Global Unit Certificate authenticated, executed and delivered
hereunder shall bear a legend in substantially the following form:
THIS UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE WITHIN THE MEANING
OF THE MASTER UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS UNIT
CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A UNIT
CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS UNIT
16
22
CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE MASTER UNIT AGREEMENT.
SECTION 2.2 Form of Unit Agent's Certificate of Authentication.
The form of the Unit Agent's certificate of authentication of the Units
shall be in substantially the form set forth on the form of the Unit
Certificates.
ARTICLE III
THE UNITS
SECTION 3.1 Title and Terms; Denominations.
The aggregate number of Units evidenced by Unit Certificates authenticated,
executed on behalf of the Holders and delivered hereunder is limited to
7,250,000 (subject to increase up to a maximum of 8,337,500 to the extent the
over-allotment option of the underwriters under the Underwriting Agreement is
exercised), except for Unit Certificates authenticated, executed and delivered
upon registration of transfer of, in exchange for, or in lieu of, other Unit
Certificates pursuant to Section 3.04, 3.05, 3.06 or 8.05.
All of the Unit Certificates authenticated, executed and delivered
hereunder shall be Normal Units except for any Unit Certificates evidencing
Stripped Units issued in connection with a Stripped Unit Creation pursuant to
Section 3.09 and Unit Certificates authenticated, executed and delivered upon
registration of transfer of, in exchange for, or in lieu of, other Unit
Certificates evidencing Stripped Units pursuant to Section 3.04, 3.05, 3.06 or
8.05.
Unit Certificates shall be issuable only in registered form and only in
denominations of a single Unit and any integral multiple thereof.
SECTION 3.2 Rights and Obligations Evidenced by the Unit Certificates.
Each Unit Certificate shall evidence the number of Units specified therein.
Prior to the purchase, if any, of shares of Common Stock under the Purchase
Contracts, the Units shall not entitle the Holders to any of the rights or
privileges of a
17
23
holder of shares of Common Stock by virtue of holding such Units, including,
without limitation, the right to vote or receive any dividends or other
distributions or to consent or to receive notice as stockholders in respect of
the meetings of stockholders or for the election of directors of the Company or
for any other matter.
Pursuant to the Pledge Agreement, the Holders from time to time of the
Units acting through the Unit Agent, as their attorney-in-fact, shall pledge to
the Collateral Agent (for the benefit of the Company and the Call Option Holder
as their interests may appear), and grant to the Collateral Agent, the Company
and the Call Option Holder (as their interests may appear) a security interest
in all of the right, title and interest of such Holders in and to the Pledged
Securities underlying such Units (and proceeds therefrom), as collateral
security to ensure the performance when due by such Holders of their respective
obligations under the Purchase Contracts and Call Options underlying such Units.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
Subject to the provisions of Section 3.09 hereof, upon the execution and
delivery of this Agreement, and at any time and from time to time thereafter,
the Company may deliver Unit Certificates executed by the Company to the Unit
Agent for authentication, execution on behalf of the Holders and delivery,
together with its Issuer Order for authentication of such Unit Certificates, and
the Unit Agent in accordance with such Issuer Order shall authenticate, execute
on behalf of the Holders and make such Unit Certificates available for delivery.
The Unit Certificates shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Unit Certificates may be manual or facsimile.
Unit 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 Unit Certificates or
did not hold such offices at the date of such Unit Certificates.
Each Unit Certificate shall be dated the date of its authentication.
18
24
No Purchase Contract or Call Option underlying a Unit evidenced by a Unit
Certificate shall be valid until such Unit Certificate has been executed on
behalf of the Holder by the manual signature of an authorized signatory of the
Unit Agent, as such Holder's attorney-in-fact. Such signature by an authorized
signatory of the Unit Agent shall be conclusive evidence that the Holder of such
Unit Certificate has entered into the Purchase Contracts and Call Options
underlying the Units evidenced by such Unit Certificate.
No Unit Certificate shall be entitled to any benefit under this Agreement
or be valid or obligatory for any purpose unless there appears on such Unit
Certificate a certificate of authentication substantially in the form provided
for herein executed by an authorized signatory of the Unit Agent by manual
signature, and such certificate upon any Unit Certificate shall be conclusive
evidence, and the only evidence, that such Unit Certificate has been duly
authenticated and delivered hereunder.
SECTION 3.4 Temporary Unit Certificates.
Pending the preparation of definitive Unit Certificates, the Company shall
execute and deliver (together with an Issuer Order) to the Unit Agent, and the
Unit Agent shall authenticate, execute on behalf of the Holders, and deliver, in
lieu of such definitive Unit Certificates, temporary Unit Certificates which are
in substantially the form set forth in Exhibit A or Exhibit B hereto, with such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the Units are listed
or Depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Unit Certificates, as evidenced by their
execution of the Unit Certificates.
If temporary Unit Certificates are issued, the Company will cause
definitive Unit Certificates to be prepared without unreasonable delay. After
the preparation of definitive Unit Certificates, the temporary Unit Certificates
shall be exchangeable for definitive Unit Certificates upon surrender of the
temporary Unit 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 Unit Certificates, the Company shall execute and deliver
to the Unit Agent, and the Unit Agent shall authenticate, execute on behalf of
the Holder, and deliver in exchange therefor, one or more definitive Unit
Certificates of authorized denominations and evidencing a like number of Normal
Units or Stripped Units, as the case may be, as the temporary Unit Certificate
or Unit Certificates so surrendered. Until so exchanged, the temporary Unit
Certificates shall in all respects evidence the same
19
25
benefits and the same obligations with respect to the Units evidenced thereby as
definitive Unit Certificates.
SECTION 3.5 Registration; Registration of Transfer and Exchange.
The Unit Agent shall keep at the Corporate Trust Office registers (the
registers maintained in such office being herein referred to as the "Unit
Registers") in which, subject to such reasonable regulations as it may
prescribe, the Unit Agent shall provide for the registration of Unit
Certificates evidencing the Normal Units and the Stripped Units and of transfers
of Unit Certificates evidencing the Normal Units and the Stripped Units (the
Unit Agent, in such capacity, the "Unit Registrar"). Upon request from any
Trustee or Administrator of the Trust, the Unit Agent shall furnish to such
requesting party a copy of the Unit Register for the Unit Certificates
evidencing the Normal Units as promptly as practicable.
Upon surrender for registration of transfer of any Unit Certificate at the
Corporate Trust Office, the Company shall execute and deliver to the Unit Agent,
and the Unit 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 Unit Certificates evidencing a like number of
Normal Units or Stripped Units, as the case may be.
At the option of the Holder, Unit Certificates may be exchanged for other
Unit Certificates evidencing a like number of Normal Units or Stripped Units, as
the case may be, upon surrender of the Unit Certificates to be exchanged at the
Corporate Trust Office.
Whenever any Unit Certificates are so surrendered for exchange, the Company
shall execute and deliver to the Unit Agent, and the Unit Agent shall
authenticate, execute on behalf of the Holder, and deliver the Unit Certificates
which the Holder making the exchange is entitled to receive.
All Unit Certificates issued upon any registration of transfer or exchange
of a Unit Certificate shall evidence the ownership of the same number of Normal
Units or Stripped Units, as the case may be, and be entitled to the same
benefits and subject to the same obligations, under the Principal Agreements as
the Normal Units or Stripped Units, as the case may be, evidenced by the Unit
Certificate surrendered upon such registration of transfer or exchange.
20
26
Every Unit Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Unit Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Unit Agent duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Unit Certificate, but the Company and the Unit 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 Unit Certificates (which, for these purposes, includes a
Stripped Unit Creation or a transfer of Pledged Securities as contemplated by
Section 5.04(a)), other than any exchanges pursuant to Sections 3.04, 3.06 and
8.05 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated
to authenticate, execute on behalf of the Holder and deliver any Unit
Certificate in respect of a Unit Certificate presented or surrendered for
registration of transfer or for exchange on or after the Stock Purchase Date or
the Termination Date. In lieu of delivery of a new Unit Certificate, upon
satisfaction of the applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from such Holder,
the Unit Agent shall (a) if the Stock Purchase Date has occurred, deliver the
shares of Common Stock issuable in respect of the Purchase Contracts forming a
part of the Units evidenced by such Unit Certificate, or (b) if a Termination
Event shall have occurred on or prior to the Stock Purchase Date, transfer the
liquidation or principal amount of the Pledged Securities evidenced thereby, in
each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
The provisions of Clauses (a), (b), (c) and (d) below shall apply only to
Global Unit Certificates:
(a) Each Global Unit Certificate authenticated and executed on behalf of
the Holders under this Agreement shall be registered in the name of the
Depositary designated for such Global Unit Certificate or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Unit Certificate shall constitute a single Unit Certificate for
all purposes of this Agreement.
(b) Notwithstanding any other provision in this Agreement, no Global
Unit Certificate may be exchanged in whole or in part for Unit Certificates
registered,
21
27
and no transfer of a Global Unit Certificate in whole or in part may be
registered, in the name of any Person other than the Depositary for such Global
Unit Certificate or a nominee thereof unless (i) such Depositary (x) has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Unit Certificate or (y) has ceased to be a clearing agency
registered under the Exchange Act or (ii) there shall have occurred and be
continuing a default by the Company in respect of its obligations under one or
more Principal Agreements.
(c) Subject to Clause (b) above, any exchange of a Global Unit
Certificate for other Unit Certificates may be made in whole or in part, and all
Unit Certificates issued in exchange for a Global Unit Certificate or any
portion thereof shall be registered in such names as the Depositary for such
Global Unit Certificate shall direct.
(d) Every Unit Certificate authenticated and delivered upon registration
of transfer of, in exchange for or in lieu of a Global Unit Certificate or any
portion thereof, whether pursuant to this Section, Section 3.04, 3.06 or 8.05 or
otherwise, shall be authenticated, executed on behalf of the Holders and
delivered in the form of, and shall be, a Global Unit Certificate, unless such
Unit Certificate is registered in the name of a Person other than the Depositary
for such Global Unit Certificate or a nominee thereof.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Unit Certificates.
If any mutilated Unit Certificate is surrendered to the Unit Agent, the
Company shall execute and deliver to the Unit Agent, and the Unit Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, a new Unit Certificate, evidencing the same number of Normal Units or
Stripped Units, as the case may be, and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Unit Agent (a) evidence
to their satisfaction of the destruction, loss or theft of any Unit Certificate,
and (b) such security or indemnity as may be required by them to save each of
them and any agent of any of them harmless, then, in the absence of notice to
the Company or the Unit Agent that such Unit Certificate has been acquired by a
bona fide purchaser, the Company shall execute and deliver to the Unit Agent,
and the Unit Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or stolen Unit
Certificate, a new Unit Certificate, evidencing the same number of Normal Units
or Stripped Units, as the case may be, and bearing a number not
contemporaneously outstanding.
22
28
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated
to authenticate, execute on behalf of the Holder, and deliver to the Holder, on
or after the Stock Purchase Date or the Termination Date, a Unit Certificate in
respect of any mutilated, destroyed, lost or stolen Unit Certificate. In lieu of
delivery of a new Unit Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Unit Agent shall (a)
if the Stock Purchase Date has occurred, deliver the shares of Common Stock
issuable in respect of the Purchase Contracts forming a part of the Units
evidenced by such Unit Certificate, or (b) if a Termination Event shall have
occurred on or prior to the Stock Purchase Date, transfer the liquidation or
principal amount of the Pledged Securities evidenced thereby, in each case
subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
Upon the issuance of any new Unit Certificate under this Section, the
Company and the Unit Agent may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Unit Agent) connected therewith.
Every new Unit Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Unit Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder, whether or
not the destroyed, lost or stolen Unit Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of the Principal Agreements equally and proportionately
with any and all other Unit Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
settlement of mutilated, destroyed, lost or stolen Unit Certificates.
SECTION 3.7 Persons Deemed Owners.
Prior to due presentment of a Unit Certificate for registration of
transfer, the Company and the Unit Agent, and any agent of the Company or the
Unit Agent, may treat the Person in whose name such Unit Certificate is
registered as the owner of the Units evidenced thereby, for the purpose of
receiving payments of distributions or interest on the Pledged Securities,
receiving or making payments of Contract
23
29
Payments and performance of the underlying Purchase Contracts and Call Options
and for all other purposes whatsoever, whether or not the payment of
distributions or interest on the Pledged Securities or any Contract Payment
payable in respect of the Purchase Contracts constituting a part of the Units
evidenced thereby shall be overdue and notwithstanding any notice to the
contrary, and neither the Company nor the Unit Agent, nor any agent of the
Company or the Unit Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Unit Certificate,
nothing herein shall prevent the Company, the Unit Agent or any agent of the
Company or the Unit Agent, from giving effect to any written certification,
proxy or other authorization furnished by any Depositary (or its nominee), as a
Holder, with respect to such Global Unit Certificate or impair, as between such
Depositary and owners of beneficial interests in such Global Unit Certificate,
the operation of customary practices governing the exercise of rights of such
Depositary (or its nominee) as Holder of such Global Unit Certificate.
SECTION 3.8 Cancellation.
All Unit Certificates surrendered for delivery of shares of Common Stock on
or after the Stock Purchase Date, transfer of Pledged Securities after the
occurrence of a Termination Event or pursuant to an Early Settlement, or
registration of transfer or exchange shall, if surrendered to any Person other
than the Unit Agent, be delivered to the Unit Agent and, if not already
canceled, shall be promptly canceled by it. The Company may at any time deliver
to the Unit Agent for cancellation any Unit Certificates previously
authenticated, executed and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Unit Certificates so delivered shall,
upon Issuer Order, be promptly canceled by the Unit Agent. No Unit Certificates
shall be authenticated, executed on behalf of the Holder and delivered upon
transfer of, in exchange for or in lieu of any Unit Certificates canceled as
provided in this Section, except as expressly permitted by this Agreement. All
canceled Unit Certificates held by the Unit Agent shall be disposed by the Unit
Agent in its customary manner.
If the Company or any Affiliate of the Company shall acquire any Unit
Certificate, such acquisition shall not operate as a cancellation of such Unit
Certificate unless and until such Unit Certificate is delivered to the Unit
Agent canceled or for cancellation.
24
30
SECTION 3.9 Substitution of Pledged Securities and Creation of Stripped
Units; Units Not Otherwise Separable.
(a) A Holder of Normal Units may obtain the release from the Pledge of
such Holder's Pledged Securities underlying such Normal Units, free and clear of
the Company's and the Call Option Holder's security interests therein, and
convert such Normal Units into Stripped Units (collectively, a "Stripped Unit
Creation") at any time after the original issuance of such Normal Units and on
or prior to the second Business Day immediately preceding the Stock Purchase
Date by:
(i) delivering to the Collateral Agent: (w) Treasury Securities
that through their scheduled payments will generate not later than the
Stock Purchase Date an amount of cash that is at least equal to the
aggregate Stated Amount of such Normal Units, (x) if the Call Options
underlying such Normal Units remain exercisable on the date on which the
requirements contained in this Section 3.09(a) for such Stripped Unit
Creation are satisfied, an instrument from the Call Option Holder releasing
its security interest in the Pledged Securities securing such Call Options
and agreeing that such Call Options no longer underlie such Normal Units
(or the Stripped Units such Normal Units then become); and
(ii) surrendering the Unit Certificate evidencing such Normal
Units, with the form of Request to Create Stripped Units thereon duly
completed and executed, to the Unit Agent, whereupon the Unit Agent shall
promptly request the Collateral Agent to release the Pledged Securities
underlying such Normal Units; provided, however, that if Treasury
Securities are the Pledged Securities under lying such Normal Units, a
Stripped Unit Creation may only be effected with respect to a number of
Normal Units that will result in the release from the Pledge of Treasury
Securities in denominations of $1,000 and integral multiples thereof.
(b) Upon receipt of the items described in subclause (w) of clause (i)
of Section 3.09(a) above and the request from the Unit Agent described in clause
(ii) of Section 3.09(a) above, the Collateral Agent will, in accordance with the
terms of the Pledge Agreement, release to the Unit Agent, on behalf of the
Holder, from the Pledge, free and clear of the Company's and the Call Option
Holders's security interests therein, the securities that theretofore had been
the Pledged Securities
25
31
underlying such Normal Units, and upon receipt thereof the Unit Agent shall
promptly:
(i) cancel the Unit Certificate for such Normal Units;
(ii) transfer such released Pledged Securities to the Holder
or, subject to Section 3.05, the Holder's designee;
(iii) authenticate, execute on behalf of such Holder and
deliver to the Holder or, subject to Section 3.05, the Holder's
designee a Unit Certificate executed by the Company in accordance with
Section 3.03 evidencing a number of Stripped Units equal to the number
of such Normal Units.
Concurrently with the release of the securities that theretofore had been the
Pledged Securities underlying such Normal Units as contemplated by the preceding
sentence, the Treasury Securities delivered to the Collateral Agent as
contemplated by clause (i) of Section 3.09(a) above shall thereupon be
substituted for such securities as Pledged Securities underlying the Stripped
Units created from such Normal Units.
(c) Except for a Stripped Unit Creation effected in compliance with this
Section 3.09, for so long as the Purchase Contract underlying a Normal Unit
remains in effect such Normal Unit shall not be separable into its constituent
parts, and the rights and obligations of the Holder of such Normal Unit in
respect of the Pledged Securities, Purchase Contract and Call Option underlying
such Normal Unit may be acquired, and may be transferred and exchanged, only as
an integrated Normal Unit. For so long as the Purchase Contract underlying a
Stripped Unit remains in effect such Stripped Unit shall not be separable into
its constituent parts, and the rights and obligations of the Holder of such
Stripped Unit in respect of the Pledged Securities and Purchase Contract
underlying such Stripped Unit may be acquired, and may be transferred and
exchanged, only as an integrated Stripped Unit. Other than a Unit Certificate,
no Holder of a Unit, nor any transferee thereof, shall be entitled to receive a
certificate evidencing the ownership of Pledged Securities or any other rights
or obligations underlying such Unit for so long as the Purchase Contract
underlying such Unit remains in effect.
SECTION 3.10 Payments on the Units.
Contract Payments (if any) payable by the Company to the Holders, and all
amounts payable to Holders as required by 5.04(b), will be payable at the office
of
26
32
the Unit Agent in The City of New York maintained for that purpose or, at the
option of the Company, by check mailed to the address of the Person entitled
thereto at such address as it appears on the relevant Unit Register on the
Record Date; provided, however, that for so long as any Units are evidenced by
Global Certificates, the Unit Agent will pay each such amount payable in respect
of such Units by wire transfer in same-day funds, no later than 2:00 p.m., New
York City time, on the Business Day such amount is received by the Unit Agent
from the Collateral Agent or the Company (or, if such amount is received by the
Unit Agent after 1:00 p.m., New York City time, on a Business Day or on a day
that is not a Business Day, no later than 10:00 a.m., New York City time, on the
next succeeding Business Day), to the Depositary, to the account or accounts
designated by it for such purpose.
SECTION 3.11 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, receiver, liquidator
or a person or entity performing similar functions, its trustee in the event
that the Company becomes the debtor under the Bankruptcy Code or subject to
other similar state or federal law providing for reorganization or liquidation.
ARTICLE IV
THE PLEDGED SECURITIES
SECTION 4.1 INTENTIONALLY LEFT BLANK.
SECTION 4.2 Transfer of Pledged Securities Upon Occurrence of
Termination Event.
Upon the occurrence of a Termination Event and the transfer of the Pledged
Securities underlying each Holder's Units to the Unit Agent pursuant to the
terms of the Pledge Agreement, the Unit Agent shall request transfer
instructions with respect to such Pledged Securities from such Holder by written
request mailed to such Holder at his address as it appears in the relevant Unit
Register. Thereafter, upon surrender to the Unit Agent of a Unit Certificate
evidencing a Holder's Units, with transfer instructions in proper form for
transfer of the underlying Pledged Securities, the Unit Agent shall transfer the
Pledged Securities evidenced by such Unit Certificate to such
27
33
Holder in accordance with such instructions; provided, however, that if the
Pledged Securities are to be transferred to a Person other than the Person in
whose name such Unit Certificate is registered, no such transfer shall be made
unless the Person requesting the transfer has paid any transfer and other taxes
required by reason of such transfer to a Person other than the registered Holder
of such Unit Certificate or has established to the satisfaction of the Company
that such tax either has been paid or is not payable. Until the foregoing
conditions to transfer any of the Pledged Securities underlying any Units has
been met, the Unit Agent shall hold such Pledged Securities as custodian for the
Holder of such Units.
If upon a Termination Event any Holder of Units would, after satisfying the
foregoing conditions, otherwise be entitled to receive (or have transferred to
such Holder's designee) Treasury Securities of any series having a principal
amount that is not an integral multiple of $1,000, such Holder shall instead be
entitled to receive (or have transferred to such Holder's designee) Treasury
Securities of such series in a principal amount equal to the next lower integral
multiple of $1,000 plus a portion of the net proceeds from the sale of Treasury
Securities of such series contemplated by the succeeding sentence representing
such Holder's interest therein. As soon as practicable after transfer to the
Unit Agent of the Pledged Securities as provided in the Pledge Agreement, the
Unit Agent shall, on behalf of all Holders who, by virtue of the preceding
sentence, will not be entitled to a portion of the Treasury Securities of any
series to which they would otherwise be entitled, aggregate and sell the
Treasury Securities of such series representing such portion to or through one
or more U.S. government securities dealers at then prevailing prices, deduct
from the proceeds of such sales all commissions and other out-of-pocket
transaction costs incurred in connection with such sales and, until the net
proceeds therefrom have been distributed to the Holders entitled thereto or
their designees, hold such proceeds in trust for such Holders.
ARTICLE V
THE PURCHASE CONTRACTS
SECTION 5.1 Purchase of Shares of Common Stock.
Each Purchase Contract underlying a Unit shall obligate the Holder of such
Unit to purchase, and the Company to sell, on the Stock Purchase Date, unless an
Early Settlement has occurred in accordance with Section 5.11 hereof, at a price
equal to the Stated Amount, a number of newly issued shares of Common Stock
28
34
equal to the Settlement Rate, unless, on or prior to the Stock Purchase Date,
there shall have occurred a Termination Event. The "Settlement Rate" is equal to
(a) if the Applicable Market Value (as defined below) is greater than or equal
to $53 (the "Threshold Appreciation Price"), .7830 of a share of Common Stock
per Purchase Contract, (b) if the Applicable Market Value is less than the
Threshold Appreciation Price but is greater than $34.24 (the "Floor Price"), a
fractional share of Common Stock per Purchase Contract equal to the Stated
Amount divided by the Applicable Market Value (rounded upward or downward to the
nearest 1/10,000th of a share or, if there is not a nearest 1/10,000th of a
share, to the next lower 1/10,000th of a share) and (c) if the Applicable Market
Value is less than or equal to the Floor Price, 1.2121 shares of Common Stock
per Purchase Contract, in each case subject to adjustment as provided in Section
5.06. As provided in Section 5.09, no fractional shares of Common Stock will be
issued upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Prices per
share of Common Stock on each of the twenty consecutive Trading Days ending on
the last Trading Day immediately preceding the Stock Purchase Date. The "Closing
Price" of the Common Stock on any date of determination means the closing sale
price (or, if no closing price is reported, the last reported sale price) of the
Common Stock on the New York Stock Exchange (the "NYSE") on such date or, if the
Common Stock is not listed for trading on the NYSE on any such date, as reported
in the composite transactions for the principal United States securities
exchange on which the Common Stock is so listed, or if the Common Stock is not
so listed on a United States national or regional securities exchange, as
reported by The NASDAQ Stock Market, or, if the Common Stock is not so reported,
the last quoted bid price for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization, or, if such
bid price is not available, the market value of the Common Stock on such date as
determined by a nationally recognized investment banking firm retained for this
purpose by the Company. A "Trading Day" means a day on which the Common Stock
(A) is not suspended from trading on any national or regional securities
exchange or association or over-the-counter market at the close of business and
(B) has traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a Unit Certificate evidencing Normal Units, by his
acceptance thereof, irrevocably authorizes the Unit Agent to enter into and
perform the underlying Purchase Contracts and Call Options on his behalf as his
attorney-in-fact, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase Contracts
and Call Options, consents to
29
35
the provisions of the Principal Agreements, irrevocably authorizes the Unit
Agent to enter into and perform the Call Option Agreement and the Pledge
Agreement on his behalf as his attorney-in-fact, and consents to and agrees to
be bound by the Pledge of the Pledged Securities underlying such Normal Units
pursuant to the Pledge Agreement. Each Holder of a Unit Certificate evidencing
Stripped Units, by his acceptance thereof, irrevocably authorizes the Unit Agent
to enter into and perform the underlying Purchase Contracts on his behalf as
his attorney-in-fact, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase Contracts,
consents to the provisions of the Principal Agreements, irrevocably authorizes
the Unit Agent to perform the Pledge Agreement on his behalf as his
attorney-in-fact, and consents to and agrees to be bound by the Pledge of the
Pledged Securities underlying such Stripped Units pursuant to the Pledge
Agreement. Each Holder of Units, by his acceptance thereof, further irrevocably
covenants and agrees that, unless such Holder satisfies its obligations to the
Company under the Purchase Contracts underlying such Units as provided in
Section 5.04(a), then to the extent and in the manner provided in Section
5.04(b) and the Pledge Agreement, but subject to the terms thereof, payments in
respect of all or a portion of the principal of or proceeds from the Pledged
Securities on the Stock Purchase Date shall be paid by the Collateral Agent to
the Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
payments.
Upon registration of transfer of a Unit Certificate, the transferee shall
be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts and any Call Options
evidenced thereby and by the Pledge Agreement and the transferor shall be
released from all such obligations evidenced by the Unit Certificate so
transferred. The Company covenants and agrees, and each Holder of a Unit
Certificate, by his acceptance thereof, likewise covenants and agrees, to be
bound by the provisions of this paragraph.
SECTION 5.2 Contract Payments.
Subject to Section 5.03, if any Contract Payments are or will be payable by
the Company to the Holders, the Company shall pay, prior to 1:00 p.m., New York
City time, on each Quarterly Payment Date to and including the Stock Purchase
Date, the Contract Payments payable in respect of each Purchase Contract to the
Person in whose name the Unit Certificate (or one or more Predecessor Unit
Certificates) evidencing such Purchase Contract is registered at the close of
business on the Record Date next preceding such Quarterly Payment Date. The
Company's
30
36
obligations with respect to such Contract Payments will be subordinated and
junior in right of payment to the Company's obligations under its Senior
Indebtedness.
Each Unit Certificate delivered under this Agreement upon registration of
transfer of, in exchange for or in lieu of any other Unit Certificate shall
carry the rights to receive and obligations to pay Contract Payments accrued and
unpaid, and to accrue, which were carried by the Purchase Contracts evidenced by
such other Unit Certificate.
SECTION 5.3 Deferral of Payment Dates For Contract Payment.
So long as no default in the Company's obligations under the Principal
Agreements has occurred and is continuing, the Company shall have the right, at
any time prior to the Stock Purchase Date, to defer the payment of any or all of
the Contract Payments, if any, otherwise payable by the Company on any Quarterly
Payment Date, but only if the Company shall give the Holders and the Unit Agent
written notice of its election to defer such payment (specifying the amount to
be deferred) at least five Business Days prior to the earlier of (a) the next
succeeding Quarterly Payment Date, (b) the date the Company is required to give
notice of the Record Date or Quarterly Payment Date with respect to payment of
such Contract Payment to the NYSE or other applicable self-regulatory
organization or to Holders, or (c) the Record Date for such Quarterly Payment
Date. Any Contract Payments so deferred shall bear additional Contract Payments
thereon at a rate per annum equal to the Deferral Rate (computed on the basis of
a 360-day year of twelve 30- day months), compounding on each succeeding
Quarterly Payment Date, until paid in full. Deferred Contract Payments (and
additional Contract Payments accrued thereon) shall be due on the next
succeeding Quarterly Payment Date except to the extent that payment is deferred
pursuant to this Section. No Contract Payments may be deferred to a date that is
after the Stock Purchase Date.
In the event the Company exercises its option to defer the payment of
Contract Payments (if any) payable by it, then, until all deferred Contract
Payments (including additional Contract Payments accrued thereon) have been paid
in full, the Company shall not (a) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect to,
any of the Company's capital stock, (b) make any payment of principal, interest
or premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu with or junior in right of payment to the Contract
Payments or (c) make any guarantee payments with respect to any guarantee by the
Company of any securities of any subsidiary of the Company if such guarantee
ranks pari passu or
31
37
junior in right of payment to the Contract Payments (other than, in the case of
clauses (a), (b) and (c), (i) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of, common stock
of the Company, (ii) any declaration of a dividend in connection with the
implementation of a stockholder's rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (iii) payments under the Company's guarantee of the Trust
Preferred Securities, (iv) as a result of a reclassification of the Company's
capital stock solely into shares of one or more classes or series of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the Company's capital
stock, (v) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the securities being converted or exchanged and (vi) purchases of
common stock in connection with the satisfaction by the Company of its
obligations under any of the Company's benefit plans for its and its
subsidiaries' directors, officers or employees or any of the company's dividend
reinvestment plans).
SECTION 5.4 Payment of Purchase Price.
(a) Unless a holder settles the underlying Purchase Contract through the
early delivery of cash to the Unit Agent in the manner described in Section
5.11, a Holder of Units shall, by no later than 10:00 a.m., New York City time,
on the Stock Purchase Date, deliver to the Unit Agent payment of the purchase
price for the shares of Common Stock to be purchased pursuant to the Purchase
Contracts underlying such Units, which payment shall be made in lawful money of
the United States by certified or cashier's check payable to the order of the
Company in immediately available funds in an amount equal to the aggregate
Stated Amount of such Holder's Units.
By 11:00 a.m., New York City time, on the Stock Purchase Date, the Unit
Agent shall (i) transfer to the Company all of the payments the Company is
entitled to receive as contemplated by the preceding sentence, (ii) notify the
Collateral Agent and the Company as to the number of Normal Units and the number
of Stripped Units, respectively, with respect to which payment has been received
as aforesaid (such Units being collectively referred to as "Paid Units") and the
number of Normal Units and the number of Stripped Units, respectively, with
respect to which payment has not been received as aforesaid (such Units being
collectively referred to as "Unpaid Units"), and (iii) request the Collateral
Agent (with notice of such request to the Company) to release the Pledged
Securities underlying the Paid Units (or, in the case of Treasury Securities,
the cash payments received thereon) from the Pledge and
32
38
transfer such released Pledged Securities (or such cash) to the Unit Agent for
delivery to the Holders of such Units entitled thereto, free and clear of the
Company's security interest therein.
By 1:00 p.m., New York City time, on the Stock Purchase Date, the
Collateral Agent shall, as provided by the terms of the Pledge Agreement, comply
with the request referred to in clause (iii) of the preceding sentence (subject
to the Company's right under the Pledge Agreement to prevent the Collateral
Agent from doing so to the extent the aggregate amount the Company has received
as contemplated by clause (i) of the preceding sentence is less than the
aggregate amount payable with respect to the Units referred to in such request).
The Unit Agent shall thereupon, subject to its receipt from the Collateral Agent
of the Pledged Securities (or cash) referred to in such request and subject to
Section 3.05, transfer such released Pledged Securities (or cash) to the
respective Holders entitled thereto in accordance with the settlement
instructions specified in the form of Settlement Instructions appearing on the
Unit Certificates evidencing the Paid Units; provided, however, that if any such
Unit Certificate is not surrendered to the Unit Agent with the form of
Settlement Instructions thereon duly completed and executed, the Unit Agent
shall hold such Pledged Securities (or cash), and any principal payments,
distributions or interest received on such Pledged Securities, as custodian for
the Holder entitled thereto, to be delivered to such Holder (without any
interest thereon and subject to Section 3.05) upon surrender of such Unit
Certificate to the Unit Agent (with the form of Settlement Instructions thereon
duly completed and executed).
(b) With respect to each Holder's Unpaid Units, pursuant to the terms of
the Pledge Agreement,
(i) (x) if Trust Preferred Securities underlie such Unpaid
Units, the Collateral Agent, on behalf of such Holder, shall exercise such
Holder's right under the Declaration to require the Trust to distribute
Junior Subordinated Debentures having an aggregate principal amount equal
to the aggregate liquidation amount of such Trust Preferred Securities, in
exchange for such Trust Preferred Securities, and, upon receiving such
Junior Subordinated Debentures, shall thereupon, as Put Agent, exercise the
Junior Subordinated Debenture Put Option with respect thereto and (y) if
Junior Subordinated Debentures underlie such Unpaid Units, the Collateral
Agent, on behalf of such Holder, shall, as Put Agent, exercise the Junior
Subordinated Debenture Put Option with respect thereto;
33
39
(ii) the Collateral Agent shall deliver to the Company, out of
the proceeds from the exercise of such Junior Subordinated Debenture Put
Option or, if Treasury Securities underlie such Unpaid Units, the proceeds
from the payment of such Treasury Securities at maturity, an amount equal
to the aggregate Stated Amount of such Unpaid Units plus the unpaid
Contract Payments, if any, payable by such Holder to the Company in respect
of such Unpaid Units to satisfy in full such Holder's obligations under
such Unpaid Units; and
(iii) the Collateral Agent shall remit to the Unit Agent, on
behalf of such Holder, the remainder of the proceeds, if any, from the
Pledged Securities underlying such Unpaid Units for distribution to such
Holder.
The amount referred to in clause (iii) above shall, subject to receipt
thereof by the Unit Agent from the Collateral Agent, be paid to the Person
in whose name the Unit Certificate (or one or more Predecessor Unit
Certificates) evidencing such Unpaid Units is registered at the close of
Business on the Record Date next preceding the Stock Purchase Date.
(c) Each Holder will be entitled to apply any unpaid amounts owing by
the Company to such Holder as a set-off to reduce, dollar-for-dollar, any
amounts then owing by such Holder to the Company in respect of such Holder's
Units, and such set-off amounts will be treated for all purposes as having been
paid in full by such Holder as required hereby.
(d) 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 of the related Unit unless the Company shall have received payment in
full of the aggregate purchase price for the shares of Common Stock to be
purchased thereunder in the manner herein set forth (either directly or by
operation of set-off as contemplated by the preceding sentence).
SECTION 5.5 Issuance of Shares of Common Stock.
Unless a Termination Event or an Early Settlement shall have occurred, as
promptly as practicable on or after the Stock Purchase Date, upon receipt by the
Company of payment in full of the aggregate purchase price for the shares of
Common Stock purchased by the Holders pursuant to the foregoing provisions of
this Article, and subject to Section 5.06(b), the Company shall deposit with the
Unit
34
40
Agent, for the benefit of the Holders of the Units, one or more certificates
representing the newly issued shares of Common Stock registered in the name of
the Unit Agent (or its nominee) as custodian for the Holders (such certificates
for shares of Common Stock, together with any dividends or distributions with
respect thereto, being hereinafter referred to as the "Purchase Contract
Settlement Fund") to which the Holders are entitled hereunder. Subject to the
foregoing, upon surrender of a Unit Certificate to the Unit Agent on or after
the Stock Purchase Date, with the form of Settlement Instructions thereon duly
completed and executed, the Holder of such Unit Certificate shall be entitled to
receive in exchange therefor a certificate representing that number of whole
shares of Common Stock which such Holder is entitled to receive pursuant to the
provisions of this Article Five (after taking into account all 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 declared and paid after the
Stock Purchase Date with respect to such shares constituting part of the
Purchase Contract Settlement Fund, but without any interest thereon, and the
Unit 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 form of Settlement Instructions appearing on the surrendered Unit
Certificate.
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 Unit
Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Unit 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 5.6 Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on any class of Common Stock of the Company in Common Stock, the
Settlement Rate in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be increased by dividing such Settlement
Rate by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the
35
41
opening of business on the day following the date fixed for such determination.
For the purposes of this paragraph (1), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all
holders of its Common Stock (not being available on an equivalent basis to
Holders of the 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,
options or warrants, to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price per share of the Common Stock
on the date fixed for the determination of stockholders entitled to receive such
rights, options or warrants (other than pursuant to a dividend reinvestment
plan), the Settlement Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by dividing
such Settlement Rate by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such Current Market Price
and the denominator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination plus the number
of shares of Common Stock so offered for subscription or purchase, such increase
to become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
paragraph (2), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company shall not issue any such rights, options or
warrants in respect of shares of Common Stock held in the treasury of the
Company.
(3) In case outstanding shares of Common Stock shall be subdivided into
a greater number of shares of Common Stock, the Settlement Rate in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and, conversely, in case
out standing shares of Common Stock shall each be combined into a smaller number
of shares of Common Stock, the Settlement Rate in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be
36
42
proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (2) of this Section, any dividend or distribution paid exclusively in
cash and any dividend or distribution referred to in paragraph (1) of this
Section), the Settlement Rate shall be increased so that the same shall equal
the rate determined by dividing the Settlement Rate in effect immediately prior
to the close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the Current Market Price per share of the Common Stock on the date fixed for
such determination less the then fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Unit Agent) of the portion of the assets or evidences
of indebtedness so distributed applicable to one share of Common Stock and the
denominator shall all be such Current Market Price per share of the Common
Stock, such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution. In any case in which this
paragraph (4) is applicable, paragraph (2) of this Section shall not be
applicable.
(5) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock cash (excluding any cash that is distributed in
a Reorganization Event to which Section 5.06(b) applies or as part of a
distribution referred to in paragraph (4) of this Section) in an aggregate
amount that, when combined with (I) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in cash within
the 12 months preceding the date of payment of such distribution to the extent
such amount has not already been applied in a prior adjustment pursuant to this
paragraph (5) and (II) the aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution), as of the date of expiration of such
tender or exchange offer, of the consideration paid in respect of any tender or
exchange offer by the Company or any of its subsidiaries for all or any portion
of the Common Stock expiring within the 12 months preceding the date of payment
of such distribution and in respect of which no adjustment pursuant to paragraph
(6) of this Section has been made, exceeds 15% of the product of the Current
Market Price per share of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such distribution times the
number of
37
43
shares of Common Stock outstanding on such date (such excess portion of such
distribution being herein referred to as the "Excess Amount"), the Settlement
Rate shall be increased so that the same shall equal the rate determined by
dividing the Settlement Rate in effect immediately prior to the close of
business on the date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which (i) the numerator shall be the
Current Market Price per share of the Common Stock on the date fixed for such
determination less an amount equal to (x) such Excess Amount divided by (y) the
number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination and (ii) the denominator shall be the Current
Market Price per share of the Common Stock on the date fixed for such
determination, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution.
(6) In case the Company or any subsidiary of the Company shall
consummate a tender or exchange offer for all or any portion of the Common Stock
and pay an aggregate consideration in respect thereof having a fair market value
(as deter mined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) that, when combined with (I) the
aggregate of the cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution), as of the date of expiration of such tender or exchange offer, of
the consideration paid in respect of any other tender or exchange offer by the
Company or any of its subsidiaries for all or any portion of the Common Stock
expiring within the 12 months preceding the date of expiration of such tender or
exchange offer and in respect of which no adjustment pursuant to this paragraph
(6) has been made and (II) the aggregate amount of any distributions to all
holders of the Company's Common Stock made exclusively in cash within 12 months
preceding the date of expiration of such tender or exchange offer to the extent
such amount has not already been applied in a prior adjustment pursuant to
paragraph (5) of this Section, exceeds 15% of the product of the Current Market
Price per share of the Common Stock on the date of expiration of such tender or
exchange offer times the number of shares of Common Stock outstanding (including
any tendered shares) at the close of business on the date of such expiration,
the Settlement Rate shall be increased so that the same shall equal the rate
determined by dividing the Settlement Rate in effect immediately prior to the
close of business on the date of such expiration by a fraction of which (i) the
numerator shall be (A) the product of (I) the Current Market Price per share of
the Common Stock on the date of such expiration and (II) the number of shares of
Common Stock outstanding (including any tendered shares) at the close of
business on the date of such expiration less (B) the amount of cash plus the
fair market value (determined as aforesaid) of the
38
44
aggregate consideration paid in respect of such tender or exchange offer and
(ii) the denominator shall be the product of (A) the Current Market Price per
share of the Common Stock on the date of such expiration and (B) the number of
shares of Common Stock outstanding (including any tendered shares) at the close
of business on the date of such expiration less the number of shares acquired
pursuant to such tender or exchange, such adjustment to become effective
immediately prior to the opening of business on the day following the date of
such expiration.
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 5.06(b) applies) shall be deemed to
involve (i) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of stockholders entitled
to receive such distribution" and the "date fixed for such determination" within
the meaning of paragraph (4) of this Section), and (ii) a subdivision 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
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section).
(8) The "Current Market Price" per share of Common Stock on any day
means the average of the daily Closing Prices for the 5 consecutive Trading Days
selected by the Company commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the day in question and the day before the
"ex" date with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term " 'ex' date", when used
with respect to any issuance or distribution, shall mean the first date on which
the Common Stock trades regular way on such exchange or in such market without
the right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate shall be calculated to the
nearest 1/10,000th of a share of Common Stock (or, if there is not a nearest
1/10,000th of a share, to the next lower 1/10,000th of a share). No adjustment
in the Settlement Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent therein; provided, however, that
any adjustments which by reason of this subparagraph are not required to be made
shall be carried forward and taken into account in any subsequent adjustment. If
an adjustment is
39
45
made to the Settlement Rate pursuant to paragraph (1), (2), (3), (4), (5), (6),
(7) or (10) of this Section 5.06(a), an adjustment shall also be made to the
Applicable Market Value solely to determine which of clauses (a), (b) or (c) of
the definition of Settlement Rate in Section 501 will apply on the Stock
Purchase Date. Such adjustment shall be made by multiplying the Applicable
Market Value by a fraction of which the numerator shall be the Settlement Rate
immediately after such adjustment pursuant to paragraph (1), (2), (3), (4), (5),
(6), (7) or (10) of this Section 506(a) and the denominator shall be the
Settlement Rate immediately before such adjustment.
(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section, as it considers to be advisable in
order to avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance of rights
or warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization Event.
If, prior to setting any of the Purchase Contracts there is (i) any
consolidation or merger of the Company with or into another Person (other than a
merger or consolidation in which the Company is the continuing corporation and
in which the Common Stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash, securities or other property of the
Company or another corporation), (ii) any sale, transfer, lease or conveyance to
another Person of the property of the Company as an entirety or substantially as
an entirety, (iii) any statutory exchange of securities of the Company with
another Person (other than in connection with a merger or acquisition) or (iv)
any liquidation, dissolution or winding up of the Company (any such event, a
"Reorganization Event"), the Settlement Rate will be adjusted to provide that
each Holder of Units will receive on the Stock Purchase Date with respect to
each Purchase Contract forming a part thereof (or if applicable, upon the Early
Settlement Date), the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by a holder of the number of shares of
Common Stock issuable on account of each Purchase Contract if the Stock Purchase
Date had occurred immediately prior to such Reorganization Event, assuming such
holder of Common Stock is not a Person with which the Company consolidated or
into which the Company merged or which merged into the Company or to which such
sale or transfer was made, as the case may be ("constituent Person"), or an
Affiliate of a constituent Person, and failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such Reorganization Event (provided that if the kind or
amount of securities, cash and other property receivable upon such
Reorganization
40
46
Event is not the same for each share of Common Stock held immediately prior to
such Reorganization Event by other than a constituent Person or an Affiliate
thereof and in respect of which such rights of election shall not have been
exercised ("non-electing share"), then for the purpose of this Section the kind
and amount of securities, cash and other property receivable upon such
Reorganization Event by each non-electing share shall be deemed to be the kind
and amount so receivable per share of the non-electing shares). In the event of
such a Reorganization Event, the Person formed by such consolidation, merger or
exchange or the Person which acquires the assets of the Company or, in the event
of a liquidation or dissolution of the Company, the Company or a liquidating
trust created in connection therewith, shall execute and deliver to the Unit
Agent an agreement supplemental hereto providing that the Holders of each
Outstanding Unit shall have the rights provided by this Section 5.06. Such
supplemental agreement shall provide for adjustments which, for events
subsequent to the effective date of such supplemental agreement, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section. The above provisions of this Section shall similarly apply to
successive Reorganization Events.
SECTION 5.7 Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the adjusted Settlement Rate in accordance
with Section 5.06 and prepare and transmit to the Unit Agent an Officers'
Certificate setting forth the Settlement Rate, the method of calculation
thereof in reasonable detail, and the facts requiring such adjustment and
upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an event
that permits or requires an adjustment to the Settlement Rate pursuant to
Section 5.06 (or if the Company is not aware of such occurrence, as soon as
practicable after becoming so aware), provide a written notice to the
Holders of the Units of the occurrence of such event and a statement in
reasonable detail setting forth the method by which the adjustment to the
Settlement Rate was determined and setting forth the adjusted Settlement
Rate.
41
47
(b) The Unit 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 Settlement Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed in making the same. The Unit 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 Unit Agent
makes no representation with respect thereto. The Unit 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 5.8 No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Stock Purchase Date.
If Unit Certificates evidencing more than one Purchase Contract shall be
surrendered for settlement at one time by the same Holder, the number of full
shares of Common Stock which shall be delivered upon settlement shall be
computed on the basis of the aggregate number of Purchase Contracts evidenced by
the Unit Certificates so surrendered. Instead of any fractional share of Common
Stock which would other wise be deliverable upon settlement of any Purchase
Contracts on the Stock Purchase Date, the Company, through the Unit Agent, shall
make a cash payment in respect of such fractional interest in an amount equal to
such fraction times the Applicable Market Value. The Company shall provide the
Unit Agent from time to time with sufficient funds to permit the Unit Agent to
make all cash payments required by this Section 5.08 in a timely manner.
SECTION 5.9 Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable to
the initial issuance and delivery of the shares of Common Stock pursuant to the
Purchase Contracts; provided, however, that the Company shall not be required to
pay any such tax or taxes which may be payable in respect of any exchange of or
substitution for a Unit Certificate evidencing a Purchase Contract or any
issuance of a share of Common Stock in a name other than that of the registered
Holder of a Unit Certificate surrendered in respect of the Purchase Contracts
evidenced thereby, other than in the name of the Unit Agent, as custodian for
such Holder, and the Company shall not be required to issue or deliver such
share certificates or Unit Certificates
42
48
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 5.10 Termination Event; Notice.
The Purchase Contracts and the obligations and rights of the Company and
the Holders thereunder, including, without limitation, all obligations and
rights to pay or receive any accrued or deferred Contract Payments or to settle
such Purchase Contracts pursuant to this Article Five, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Unit Agent or the Company, if, on or prior to the Stock Purchase
Date, a Termination Event shall have occurred. Upon the occurrence of a
Termination Event, the Company shall give written notice to the Unit Agent, the
Collateral Agent and the Holders, at their addresses as they appear in the Unit
Registers. Upon and after the occurrence of a Termination Event, the provisions
of this Article Five (other than this Section 5.10) shall automatically
terminate and be of no further force or effect, and the Unit Certificates shall
thereafter represent only the right to receive the Pledged Securities forming a
part of the Units theretofore evidenced thereby in accordance with the
provisions of Section 4.02 and the Pledge Agreement.
SECTION 5.11 Early Settlement.
(a) In the event of a merger or consolidation of the Company of the type
described in clause (i) of Section 5.06(b) in which the Common Stock outstanding
immediately prior to such merger or consolidation is exchanged for consideration
consisting of at least 30% cash or cash equivalents (any such event a "Cash
Merger"), then the Company (or the successor to the Company hereunder) shall be
required to offer the Holder of each Unit the right to settle the Purchase
Contract underlying such Unit prior to the Stock Purchase Date ("Early
Settlement") as provided herein. On or before the fifth Business Day after the
consummation of a Cash Merger the Company or, at the request and expense of the
Company, the Unit Agent, shall give all Holders notice, in the manner provided
in Section 1.06, of the occurrence of the Cash Merger and of the right of Early
Settlement arising as a result thereof. The Company shall also deliver a copy of
such notice to the Unit Agent, the Collateral Agent and, if the Call Options
have not been exercised and have not expired, the Call Option Holder.
43
49
Each such notice shall contain:
(i) the date, which shall be not less than 20 nor more than 30
days after the date of such notice, on which the Early Settlement will be
effected (the "Early Settlement Date");
(ii) the date, which shall be three Business Days prior to the
Early Settlement Date, by which the Early Settlement right must be
exercised;
(iii) the Settlement Rate in effect as a result of such Cash
Merger and the kind and amount of securities, cash and other property
receivable by the Holder upon settlement of each Purchase Contract pursuant
to Section 5.06(b);
(iv) a statement to the effect that all or a portion of the
Stated Amount payable by the Holder to settle the Purchase Contract will be
offset against the amount of cash so receivable upon exercise of Early
Settlement, as applicable;
(v) the instructions a Holder must follow to exercise the Early
Settlement right; and
(vi) a statement to the effect that accrued and unpaid Contract
Payments in respect of the Purchase Contracts for which Early Settlement
shall have been effected shall be payable on the Early Settlement Date, and
that upon such payment Contract Payments on such Purchase Contracts shall
cease to accrue.
(b) To exercise an Early Settlement right, a Holder shall deliver to the
Unit Agent on or before 5:00 p.m., New York City time on the date specified in
the notice the Unit Certificate(s) with respect to which the Early Settlement
right is being exercised with the form of "Election to Settle Early" on the
reverse thereof duly completed, accompanied by payment of the purchase price for
the property to be purchased pursuant to the Purchase Contracts underlying such
Units, which payment shall be made in lawful money of the United States by
certified or cashier's check payable to the order of the Company in immediately
available funds in an amount equal to the aggregate State Amount of the Units in
respect of which the Early Settlement is being effected less the amount of cash
that otherwise would be deliver able by the Company or its successor upon
settlement of the Purchase Contract
44
50
in lieu of Common Stock pursuant to Section 5.06(b) and as described in the
notice to Holders.
(c) In the event an Early Settlement right shall be exercised by a
Holder in accordance with the terms hereof, (i) on the Early Settlement Date the
Company shall deliver or cause to be delivered by the Unit Agent to each such
exercising Holder the net cash, securities and other property to be received, as
provided herein, by such exercising Holder in respect of the number of Purchase
Contracts for which such Early Settlement right was exercised, together with all
accrued and unpaid Contract Payments to the Early Settlement Date payable on
such Purchase Contracts, in accordance with the settlement instructions provided
by such Holder and (ii) all references herein to Stock Purchase Date shall be
deemed to refer to such Early Settlement Date and all references to form of
Settlement Instruction shall be deemed to refer to the form of Election to
Settle Early, as applicable.
(d) In the event that Early Settlement is effected with respect to less
than all of the Purchase Contracts underlying the Units evidenced by a Unit
Certificate, upon such Early Settlement the Company shall execute and the Unit
Agent shall authenticate, execute on behalf of the Holders and deliver to the
Holder thereof, at the expense of the Company, a Unit Certificate evidencing the
Units as to which Early Settlement was not effected.
ARTICLE VI
REMEDIES
SECTION 6.1 Unconditional Rights of Holders.
Notwithstanding any other provision in this Agreement, the Holder of any
Unit shall have the right, which is absolute and unconditional but which is
subject to Section 5.10, to purchase Common Stock pursuant to the Purchase
Contract underlying such Unit and to receive payment of Contract Payments, if
any, payable by the Company to such Holder with respect to such Purchase
Contract and, in each such case, to institute suit for the enforcement of any
such right, and such rights shall not be impaired without the consent of such
Holder.
45
51
SECTION 6.2 Restoration of Rights and Remedies.
If any Holder of Units has instituted any proceeding to enforce any right
or remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company and such Holder shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of such Holder
shall continue as though no such proceeding had been instituted.
SECTION 6.3 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement of mutilated,
destroyed, lost or stolen Unit Certificates in the last paragraph of Section
3.06, no right or remedy herein conferred upon or reserved to the Holders of
Units is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.4 Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or remedy shall
impair any such right or remedy or constitute a waiver of any such right. Every
right and remedy given by this Article or by law to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by such Holders.
SECTION 6.5 Undertaking for Costs.
All parties to this Agreement agree, and each Holder of any Unit by his
acceptance of the Unit Certificate evidencing 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 Unit Agent for any action taken, suffered or omitted by it as Unit Agent,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and
46
52
good faith of the claims or defenses made by such party litigant; provided that
the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Unit Agent, to any suit instituted by any
Holder of Units, or group of Holders, holding in the aggregate more than 10% of
the number of Out standing Units, or to any suit instituted by any Holder of
Units for the enforcement of payments due in respect of Pledged Securities or
Contract Payments on Purchase Contracts underlying such Units on or after the
respective due dates therefor, or for enforcement of the right to purchase
shares of Common Stock under the Purchase Contracts constituting a part of such
Units.
SECTION 6.6 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Unit Agent or the Holders, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE VII
THE UNIT AGENT
SECTION 7.1 Certain Duties and Responsibilities.
(a) (i) The Unit Agent undertakes to perform, with respect to the
Units, such duties and only such duties as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into this
Agreement against the Unit Agent; and
(ii) in the absence of bad faith or negligence on its part, the
Unit Agent 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 Unit Agent and
conforming to the requirements of this Agreement, but in the case of any
certificates or opinions which by any provision hereof
47
53
are specifically required to be furnished to the Unit Agent, the Unit Agent
shall be under a duty to examine the same to determine whether or not they
substantially conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Unit Agent from liability for its own negligent action, its own 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 Unit Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that
the Unit Agent was negligent in ascertaining the pertinent facts; and
(iii) no provision of this Agreement shall require the Unit 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 relating to the conduct or affecting the liability of or
affording protection to the Unit Agent shall be subject to the provisions of
this Section.
SECTION 7.2 Notice of Default.
Within 90 days after the occurrence of any default by the Company
hereunder, of which a Responsible Officer of the Unit Agent has actual
knowledge, the Unit Agent shall transmit by mail to all Holders of Units, as
their names and addresses appear in the Unit Registers, notice of such default
hereunder, unless such default shall have been cured or waived.
SECTION 7.3 Certain Rights of Unit Agent.
Subject to the provisions of Section 7.01:
48
54
(a) the Unit Agent may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
(whether in its original or facsimile form) believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(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 Unit Agent
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Unit Agent (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate of the Company;
(d) the Unit Agent may consult with counsel of its own selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Unit 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 Unit
Agent, in its discretion, may make reasonable further inquiry or investigation
into such facts or matters related to the issuance of the Units and the
execution, delivery and performance of the Purchase Contracts as it may see
fit, and, if the Unit Agent shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and promises
of the Company, personally or by agent or attorney at the expense of the Company
and shall incur no liability or additional liability of any kind by reason of
such inquiry or investigation; and
(f) the Unit Agent may execute any of its powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Unit Agent shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder.
49
55
SECTION 7.4 Not Responsible for Recitals or Issuance of Units.
The recitals contained herein and in the Unit Certificates shall be taken
as the statements of the Company and the Unit Agent assumes no responsibility
for their correctness. The Unit Agent makes no representations as to the
validity or sufficiency of this Agreement or of the Units. The Unit Agent shall
not be accountable for the use or application by the Company of the proceeds in
respect of the Trust Preferred Securities or Purchase Contracts.
SECTION 7.5 May Hold Units.
Any Unit Registrar or any other agent of the Company, or the Unit Agent, in
its individual or any other capacity, may become the owner or pledgee of Units
and may otherwise deal with the Company with the same rights it would have if it
were not Unit Registrar or such other agent, or the Unit Agent.
SECTION 7.6 Money Held in Trust.
Money held by the Unit Agent in trust hereunder need not be segregated from
other funds except to the extent required by law. The Unit Agent shall be under
no obligation to invest or pay interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 7.7 Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Unit Agent from time to time reasonable compensation
for all services rendered by it hereunder as the Company and the Unit Agent
shall from time to time agree in writing;
(b) except as otherwise expressly provided herein, to reimburse the Unit
Agent upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Unit Agent in accordance with any provision of this
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or willful misconduct; and
50
56
(c) to fully indemnify the Unit Agent and any predecessor Unit Agent and
their agents for, and to hold each of them harmless against, any and all loss,
damage, claim, liability or expense, including taxes (other than taxes based
upon, measured by or determined by the income of the Unit Agent), incurred
without negligence or willful misconduct on its part, arising out of or in
connection with the acceptance or administration of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. This Section 7.07(c) shall survive the termination of this
Agreement.
SECTION 7.8 Corporate Unit Agent Required; Eligibility.
There shall at all times be an Unit Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by Federal or
State authority and having its Corporate Trust Office in the Borough of
Manhattan, The City of New York, if there be such a corporation in the Borough
of Manhattan, The City of New York qualified and eligible under this Article and
willing to act on reasonable terms. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Unit Agent shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 7.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Unit Agent and no appointment of a
successor Unit Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Unit Agent in accordance with the
applicable requirements of Section 7.10.
(b) The Unit 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 Unit Agent required by Section
7.10 shall not have been delivered to the Unit Agent within 30 days after the
giving of such notice
51
57
of resignation, the resigning Unit Agent may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a successor
Unit Agent.
(c) The Unit Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Units delivered to the Unit Agent and the
Company.
(d) If at any time
(i) the Unit Agent fails to comply with Section 310(b) of the
TIA, as if the Unit Agent were an indenture trustee under an
indenture qualified under the TIA, after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Unit for at
least six months, or
(ii) the Unit Agent shall cease to be eligible under Section 708
and shall fail to resign after written request therefor by the Company or
by any such Holder, or
(iii) the Unit Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Unit Agent or of its
property shall be appointed or any public officer shall take charge or
control of the Unit Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, (x)
the Company by a Board Resolution may remove the Unit Agent, or (y) 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 Unit Agent and the
appointment of a successor Unit Agent.
(e) If the Unit Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Unit Agent for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Unit
Agent and shall comply with the applicable requirements of Section 7.10. If no
successor Unit 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 may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Unit Agent.
52
58
(f) The Company shall give, or shall cause such successor Unit Agent to
give, notice of each resignation and each removal of the Unit Agent and each
appointment of a successor Unit Agent by mailing written notice of such event
by first-class mail, postage prepaid, to all Holders of Units as their names and
addresses appear in the Unit Registers. Each notice shall include the name of
the successor Unit 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 Unit Agent,
every such successor Unit Agent so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Unit Agent an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring Unit
Agent shall become effective and such successor Unit Agent, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
agencies and duties of the retiring Unit Agent; but, on the request of the
Company or the successor Unit Agent, such retiring Unit Agent shall, upon
payment of its charges due under Section 7.07 hereof, execute and deliver an
instrument transferring to such successor Unit Agent all the rights, powers and
trusts of the retiring Unit Agent and shall duly assign, transfer and deliver to
such successor Unit Agent all property and money held by such retiring Unit
Agent hereunder.
(b) Upon request of any such successor Unit Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Unit Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Unit Agent shall accept its appointment unless at the
time of such acceptance such successor Unit Agent shall be qualified and
eligible under this Article.
SECTION 7.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Unit Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Unit Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Unit Agent, shall be the successor of the Unit Agent hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties
53
59
hereto. In case any Unit Certificates shall have been authenticated and executed
on behalf of the Holders, but not delivered, by the Unit Agent then in office,
any successor by merger, conversion or consolidation to such Unit Agent may
adopt such authentication and execution and deliver the Unit Certificates so
authenticated and executed with the same effect as if such successor Unit Agent
had itself authenticated and executed such Units.
SECTION 7.12 Preservation of Information; Communications to Holders.
(a) The Unit Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Unit Agent in
its capacity as Unit Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Unit Agent, and furnish to the Unit 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 Unit Agent shall, within five Business Days after the receipt
of such application, afford such applicants access to the information preserved
at the time by the Unit Agent in accordance with Section 7.12(a).
(c) Every Holder of Units, by receiving and holding the Unit
Certificates evidencing the same, agrees with the Company and the Unit Agent
that none of the Company, the Unit Agent nor any agent of any of them shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with Section 7.12(b),
regardless of the source from which such information was derived.
SECTION 7.13 No Obligations of Unit Agent.
Except to the extent otherwise provided in this Agreement, the Unit Agent
assumes no obligations and shall not be subject to any liability under this
Agreement or any Purchase Contract or Call Option in respect of the obligations
of the Holder of any Unit thereunder. The Company agrees, and each Holder of a
Unit Certificate, by his acceptance thereof, shall be deemed to have agreed,
that the Unit Agent's execution of the Unit Certificates on behalf of the
Holders shall be solely as agent and attorney-in-fact for the Holders, and that
the Unit Agent shall have no obligation to
54
60
perform such Purchase Contracts or Call Options on behalf of the Holders, except
to the extent expressly provided in Article Five hereof.
SECTION 7.14 Tax Compliance.
(a) The Unit 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 Unit Agent shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 7.01(a)(ii) hereof.
(c) The Unit Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available, on
written request, to the Company or to its authorized representative within a
reasonable period of time after receipt of such request.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
SECTION 8.1 Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the parties to any Principal Agreement,
at any time and from time to time, may enter into one or more agreements
supplemental hereto or thereto, in form satisfactory to such parties, for any of
the following purposes:
55
61
(1) to evidence the succession of another Person to any such party, and
the assumption by any such successor of the covenants of such party herein or
therein and under the Units; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Company;
or
(3) to evidence and provide for the acceptance of appointment hereunder
by a successor Unit Agent; or
(4) to evidence the succession of another Person to the rights of the
Call Option Holder under the Call Options, in connection with a transfer of such
rights by the Call Option Holder to such Person; or
(5) to make provision with respect to the rights of Holders pursuant to
the requirements of Section 5.06(b); or
(6) to cure any ambiguity, to correct or supplement any provisions
herein or therein which may be inconsistent with any other provisions herein or
therein, or to make any other provisions with respect to such matters or
questions arising under such Principal Agreement, provided such action shall not
adversely affect the interests of the Holders.
SECTION 8.2 Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority of the
Outstanding Units (or, with respect to modifications that adversely affect only
the Holders of Normal Units or only the Holders of Stripped Units, with the
consent of the Holders of not less than a majority of the Outstanding Units that
comprise Normal Units or Stripped Units, as the case may be), by Act of said
Holders delivered to the parties to any Principal Agreement, such parties (when
authorized, in the case of the Company, by a Board Resolution) may enter into an
agreement or agreements supplemental to such Principal Agreement for the purpose
of modifying in any manner the terms of the Units, or the provisions of such
Principal Agreement or the rights of the Holders in respect of the Units;
provided, however, that no such supplemental agreement shall, without the
consent of the Holder of each Outstanding Unit affected thereby,
(1) change any payment date;
56
62
(2) change the amount or type of Pledged Securities underlying a Unit,
impair the right of the Holder of any Unit to receive distributions or interest
payments on the underlying Pledged Securities or otherwise adversely affect the
Holder's rights in or to such Pledged Securities (including the rights of
Holders of Normal Units to effect a Stripped Unit Creation);
(3) reduce the Contract Payments, if any, or other amounts receivable by
Holders in respect of Units or change any place where, or the coin or currency
in which, any Contract Payments or other amounts payable in respect of Units are
payable;
(4) impair the right to institute suit for the enforcement of any
Purchase Contract;
(5) reduce the number of shares of Common Stock to be purchased pursuant
to any Purchase Contract, increase the price to purchase shares of Common Stock
upon settlement of any Purchase Contract, change the Stock Purchase Date or
otherwise adversely affect the Holder's rights under any Purchase Contract; or
(6) reduce the amount payable on exercise of any Call Option, extend the
Call Option Expiration Date (as defined in the Call Option Agreement) or
otherwise adversely affect any Holder's rights under any Call Option; or
(7) reduce the percentage of the Outstanding Units the consent of whose
Holders is required for any such supplemental agreement.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any supplemental
agreement to any Principal Agreement. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental agreement, whether or not such
Holders remain Holders after such record date; provided, that unless such
consent shall have become effective by virtue of the requisite percentage having
been obtained prior to the date which is 90 days after such record date, any
such consent previously given shall automatically and without further action by
any Holder be cancelled and of no further effect.
57
63
SECTION 8.3 Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby
of the agencies created by the Principal Agreements, the Unit Agent shall be
entitled to receive and (subject to Section 7.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental agreement is authorized or permitted by this Agreement. The Unit
Agent may, but shall not be obligated to, enter into any such supplemental
agreement which affects the Unit Agent's own rights, duties or immunities under
this Agreement or otherwise.
SECTION 8.4 Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article,
the relevant Principal Agreement shall be modified in accordance therewith, and
such supplemental agreement shall form a part of such Principal Agreement for
all purposes; and every Holder of Unit Certificates theretofore or thereafter
authenticated, executed on behalf of the Holder and delivered hereunder shall be
bound thereby.
SECTION 8.5 Reference to Supplemental Agreements.
Unit 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 Unit Agent, bear a notation in form
approved by the Unit Agent as to any matter provided for in such supplemental
agreement. If the Company shall so determine, new Unit Certificates so modified
as to conform, in the opinion of the Unit Agent and the Company, to any such
supplemental agreement may be prepared and executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Unit Agent
in exchange for Outstanding Unit Certificates evidencing the same number of
Normal Units or Stripped Units, as the case may be.
58
64
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions.
The Company covenants that it will not merge or consolidate with any other
Person or sell or convey all or substantially all of its assets to any Person,
except that the Company may merge or consolidate with, or sell or convey all or
substantially all of its assets to, any other Person, provided that (a) 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 and such corporation shall assume
the obligations of the Company under the Purchase Contracts and the Pledge
Agreement by one or more supplemental agreements in form satisfactory to the
Unit Agent and, in the case of the Pledge Agreement, the Collateral Agent,
executed and delivered to the Unit Agent, and, in the case of the Pledge
Agreement, the Collateral Agent by such corporation, and (b) the Company or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale or conveyance, be in default in the
performance of any covenant or condition under any Principal Agreement or under
any of the Units.
SECTION 9.2 Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company with the same effect as if it had
been named in the Principal Agreements 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 CMS Energy Corporation, any or all of the Unit
Certificates evidencing Units issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Unit 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 Unit
Agent shall authenticate and execute on behalf of the Holders and deliver any
Unit Certificates which previously shall have been signed and delivered by the
officers of the Company to the Unit Agent for authentication and execution, and
any Unit Certificate evidencing Units which such successor corporation
thereafter shall cause to be signed and delivered to the Unit Agent for that
purpose. All the Unit Certificates so issued shall in all respects have the same
59
65
legal rank and benefit under this Agreement as the Unit Certificates theretofore
or thereafter issued in accordance with the terms of this Agreement as though
all of such Unit Certificates had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance such change
in phraseology and form (but not in substance) may be made in the Unit
Certificates evidencing Units thereafter to be issued as may be appropriate.
SECTION 9.3 Opinion of Counsel to Unit Agent.
The Unit Agent, subject to Sections 7.01 and 7.03, may receive an Opinion
of Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article.
ARTICLE X
COVENANTS
SECTION 10.1 Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders from time
to time of the 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 10.2 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New York
an office or agency where Unit Certificates may be presented or surrendered for
acquisition of shares of Common Stock upon settlement and for transfer of
Pledged Securities upon occurrence of a Termination Event, where Unit
Certificates may be surrendered for registration of transfer or exchange or for
effecting Stripped Unit Creations, where payment of Contract Payments, if any,
payable by the Company to the Holders may be made 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 Unit Agent of the location,
and any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Unit Agent with the address thereof, such presentations,
surrenders, notices and demands may be made or
60
66
served at the Corporate Trust Office, and the Company hereby appoints the Unit
Agent as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where Unit Certificates may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Unit 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 Unit Agent at its Corporate Trust Office as paying agent
in such city.
SECTION 10.3 Company to Reserve Common Stock.
The Company shall at all times prior to the Stock Purchase 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 underlying the Units.
SECTION 10.4 Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be issued
against tender of payment in respect of the Purchase Contracts underlying the
Units will, upon issuance, be newly issued (i.e., not issued out of treasury
shares) and be duly authorized, validly issued, fully paid and nonassessable.
SECTION 10.5 Statements of Officers of the Company as to Default.
The Company will deliver to the Unit Agent, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions hereof, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge. The Company shall deliver to the Trustee within 5 Business Days
after the Company becomes aware of the occurrence of any Event of Default or an
event which, with notice or lapse of time, would constitute an Event of Default,
an Officers' Certificate setting forth the details of, and what action the
Company proposes to take with respect to, such Event of Default.
61
67
IN WITNESS WHEREOF, the parties hereto have caused this Master Unit
Agreement to be duly executed as of the day and year first above written.
CMS ENERGY CORPORATION
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
THE BANK OF NEW YORK,
as Unit Agent
By: /s/ XXXXXXX XXXXXXX
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
62
68
EXHIBIT A
FORM OF NORMAL UNIT CERTIFICATE
CMS ENERGY CORPORATION
8.75% ADJUSTABLE CONVERTIBLE TRUST SECURITY UNITS
(STATED AMOUNT $41.50 PER NORMAL UNIT)
CUSIP No.000000000
No. N-1 4,819,277 Normal Units
This Unit Certificate certifies that Cede & Co. is the registered Holder of
the number of Normal Units set forth above. Each Normal Unit represents the
right to purchase Common Stock under a Purchase Contract with CMS Energy
Corporation, a Michigan corporation (the "Company"), together with ownership of
the Trust Preferred Securities or other Pledged Securities pledged to secure the
obligations referred to in (a) and (b) below, subject to (a) the obligations
owed to the Company under such Purchase Contract, (b) for so long as any Call
Options remain exercisable, the obligations owed to the Call Option Holder under
a Call Option and (c) the pledge arrangements securing the foregoing
obligations.
Each Purchase Contract evidenced hereby is governed by a Master Unit
Agreement, dated as of July 8, 1999 (the "Master Unit Agreement"), between the
Company and The Bank of New York, as unit agent (herein called the "Unit
Agent"). All terms used herein which are defined in the Master Unit Agreement
have the meanings set forth therein. Each Call Option evidenced hereby is
governed by the Call Option Agreement. The Pledge of the Pledged Securities
evidenced hereby is governed by the Pledge Agreement. Reference is hereby made
to the Master Unit Agreement, the Call Option Agreement and the Pledge
Agreement, and any supple mental agreements thereto, for a description of the
respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Unit Agent, the Company, the Call Option Holder, the
Collateral Agent and the Holders. The summary contained herein is qualified in
its entirety by the provisions of the Principal Agreements, and the Principal
Agreements shall govern the rights of the parties to the extent that there is
any conflict between such summary and such provisions.
X-0
00
Xxxx Xxxxxxxx Contract evidenced hereby obligates the Holder of this Unit
Certificate to purchase, and the Company to sell, on July 1, 2002 (the "Stock
Purchase Date"), at a price equal to $41.50 (the "Stated Amount"), a number of
newly issued shares of Common Stock, $.01 par value per share ("Common Stock"),
of the Company equal to the Settlement Rate, unless on or prior to the Stock
Purchase Date there shall have occurred a Termination Event. The "Settlement
Rate" is equal to (a) if the Applicable Market Value (as defined in the Master
Unit Agreement) is greater than or equal to $53 (the "Threshold Appreciation
Price"), .7830 of a share of Common Stock per Purchase Contract, (b) if the
Applicable Market Value is less than the Threshold Appreciation Price but is
greater than $34.24 (the "Floor Price"), a fractional share of Common Stock per
Purchase Contract equal to the Stated Amount divided by the Applicable Market
Value (rounded to the nearest 1/10,000th of a share or, if there is no nearest
1/10,000th of a share, rounded downward to the nearest 1/10,000th of a share)
and (c) if the Applicable Market Amount is less than or equal to the Floor
Price, 1.2121 shares of Common Stock per Purchase Contract, in each case subject
to adjustment as provided in the Master Unit Agreement. No fractional shares of
Common Stock will be issued upon settlement of Purchase Contracts, but instead
of issuing any fractional interest the Company shall make a cash payment as
provided in the Master Unit Agreement. The purchase price for the shares of
Common Stock to be purchased pursuant to each Purchase Contract evidenced
hereby, if not paid by 10:00 a.m., New York City time, on the Stock Purchase
Date, shall be paid by application of payments received by the Company on the
Stock Purchase Date from the Collateral Agent pursuant to the Pledge Agreement
in respect of the Pledged Securities pledged to secure such Holder's obligations
under such Purchase Contract.
The Purchase Contracts and the obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights and
obligations to receive and pay accrued or deferred Contract Payments, shall
immediately and automatically terminate, without the necessity of any notice or
action by any Holder, the Unit Agent or the Company, if, on or prior to the
Stock Purchase Date, a Termination Event shall have occurred. Upon and after
the occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Securities from the Pledge. The Normal Units shall thereafter represent
the right to receive the Pledged Securities forming a part of such Normal Units
in accordance with the provisions of the Master Unit Agreement and the Pledge
Agreement.
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
A-2
70
Code or otherwise, of the Purchase Contract by the Company, receiver, liquidator
or a person or entity performing similar functions, its trustee in the event
that the Company becomes the debtor under the Bankruptcy Code or subject to
other similar state or federal law providing for reorganization or liquidation.
The Call Options evidenced hereby entitle the Call Option Holder to acquire
the Trust Preferred Securities (or Junior Subordinated Debentures substituted
therefor) evidenced hereby on or before April 1, 2002, unless prior to the
exercise thereof there shall have occurred a Termination Event. The Call Option
Holder may exercise such Call Options only in whole together with the Call
Options underlying the other Normal Units, by delivering to the Unit Agent a
notice of exercise and delivering to the Collateral Agent the Aggregate Call
Option Exercise Consideration, whereupon the Trust Preferred Securities or
Junior Subordinated Debentures underlying the Normal Units will be released
from the Pledge and the Treasury Securities constituting all or part of the
Aggregate Call Option Exercise Consideration delivered to the Collateral Agent
will be substituted as the Pledged Securities underlying the Normal Units.
The Company shall pay, on each January 1, April 1, July 1 and October 1,
commencing October 1 (each, a "Quarterly Payment Date"), in respect of each
Purchase Contract evidenced hereby, a payment (the "Contract Payment") accruing
on the Stated Amount of such Unit from and including the date of first issuance
of any Units at a rate per annum equal to 8.625% (the "Contract Payment Rate")
(computed on the basis of a 360-day year of twelve 30-day months and subject to
deferral as described in the Master Unit Agreement), plus any additional fees
accrued thereon pursuant to Section 5.03 of the Master Unit Agreement. The
Company's obligations with respect to Contract Payments shall be, to the extent
provided in the Master Unit Agreement, subordinate and subject in right of
payment to all Senior Indebtedness.
Payments due to the Holder in respect of the Normal Units evidenced hereby
will be payable to the Person in whose name this Unit Certificate (or a
Predecessor Unit Certificate) is registered at the close of business on the
Record Date next preceding the relevant payment date.
The transfer of any Unit Certificate will be registered and Unit
Certificates may be exchanged as provided in the Master Unit Agreement. The Unit
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents permitted by the Master Unit Agreement. No
service charge shall be required for any such registration of transfer or
exchange, but the Company and
A-3
71
the Unit Agent may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. Except as provided in the
Master Unit Agreement in connection with a Stripped Unit Creation, for so long
as the Purchase Contract underlying a Normal Unit remains in effect, such Normal
Unit shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Normal Unit in respect of the Pledged
Securities and Purchase Contract constituting such Normal Unit may be
transferred and exchanged only as an integrated Normal Unit.
Upon registration of transfer of this Unit Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts and Call Options evidenced
hereby and by the Pledge Agreement, and the transferor shall be released from
such obligations. The Company covenants and agrees, and the Holder, by his
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
The Holder of this Unit Certificate, by his acceptance hereof, irrevocably
authorizes the Unit Agent to enter into and perform the related Purchase
Contracts and Call Options evidenced hereby on his behalf as his
attorney-in-fact, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase Contracts
and Call Options, consents to the provisions of the Principal Agreements,
irrevocably authorizes the Unit Agent to enter into and perform the Call Option
Agreement and the Pledge Agreement on his behalf as his attorney-in-fact, and
consents to and agrees to be bound by the Pledge of the Pledged Securities
evidenced hereby pursuant to the Pledge Agreement.
Subject to certain exceptions, the provisions of the Principal Agreements
may be amended with the consent of the Holders of at least a majority of the
Outstanding Units or, if the amendment affects only the Holders of the Normal
Units or only the Holders of the Stripped Units, at least a majority of the
Outstanding Units comprising Normal Units or Stripped Units, as the case may be.
THE PURCHASE CONTRACTS AND CALL OPTIONS SHALL FOR ALL PURPOSES BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
The Company, the Unit Agent and any agent of the Company or the Unit Agent
may treat the Person in whose name this Unit Certificate is registered as the
owner of the Normal Units evidenced hereby for the purpose of receiving payments
of
A-4
72
distributions or interest on the Pledged Securities, receiving the rights and
performing the obligations under 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
Unit 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.
Copies of the Principal Agreements are available for inspection at the
offices of the Unit Agent.
Unless the certificate of authentication hereon has been executed by the
Unit Agent by manual signature, this Unit Certificate shall not be entitled to
any benefit under the Principal Agreements or be valid or obligatory for any
purpose.
A-5
73
IN WITNESS WHEREOF, the Company and the Holder hereby agree to their
respective obligations under the Purchase Contracts evidenced by this
instrument, and the Holder hereby acknowledges that the Pledged Securities
evidenced by this instrument are subject to the Pledge under the Pledge
Agreement.
CMS ENERGY CORPORATION
By:
------------------------------------
Attest: Name: Xxxx X. Xxxxxx
-------------------- Title: Senior Vice President and
Chief Financial Officer
HOLDER SPECIFIED ABOVE
By: The Bank of New York,
as Attorney-in-Fact of such Holder
By:
------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the Holder hereby agrees, for the benefit of the Call
Option Holder, to its obligations under any Call Options evidenced by this
instrument, and the Holder hereby acknowledges, for the benefit of the Call
Option Holder, that the Pledged Securities evidenced by this instrument are
subject to the Pledge under the Pledge Agreement.
HOLDER SPECIFIED ABOVE
By: The Bank of New York,
as Attorney-in-Fact of such Holder
By:
------------------------------------
Dated: July 8, 1999 Name:
Title:
A-6
74
Unit Agent's Certificate of Authentication
This is one of the Unit Certificates referred to in the within mentioned
Master Unit Agreement.
The Bank of New York,
as Unit Agent
By:
------------------------------------
Name:
Title:
Dated: July 8, 1999
A-7
75
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Stock Purchase Date of the
Purchase Contracts underlying the number of Normal Units evidenced by this Unit
Certificate be registered in the name of, and delivered, together with a check
in payment for any fractional share, to the undersigned at the address indicated
below unless a different name and address have been indicated below. If shares
are to be registered in the name of a Person other than the undersigned, the
undersigned will pay any transfer tax payable incident thereto.
Dated:
---------------------------------- ----------------------------------
Signature*
If shares are to be registered in the
REGISTERED HOLDER name of and
delivered to a Person other than the
Holder, please print Person's name and Please print name and address of
address: such Registered Holder:
---------------------------------------- ----------------------------------
Name Name
---------------------------------------- ----------------------------------
Address Address
---------------------------------------- ----------------------------------
Social Security or other Taxpayer
Identification Number, if any
----------------------------------
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Common Stock is to be delivered other than to, and
in the name of, the registered Holder.
A-8
76
ELECTION TO SETTLE EARLY
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Early Settlement Date of the
Purchase Contracts underlying the number of Normal Units evidenced by this Unit
Certificate be registered in the name of, and delivered to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated:
---------------------------------- ----------------------------------
Signature*
If shares are to be registered in the
name of and delivered to a Person other
than the Holder, please print Person's Please print name and address of
name and address: such Registered Holder:
---------------------------------------- ----------------------------------
Name Name
---------------------------------------- ----------------------------------
Address Address
---------------------------------------- ----------------------------------
Social Security or other Taxpayer
Identification Number, if any
----------------------------------
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Common Stock is to be delivered other than to, and
in the name of, the registered Holder.
A-9
77
REQUEST TO CREATE STRIPPED UNITS
The undersigned Holder directs that (a) the Pledged Securities underlying
the number of Normal Units indicated below (which number does not exceed the
number of Normal Units evidenced by this Unit Certificate) be released from the
Pledge and registered in the name of, and delivered to, the undersigned at the
address indicated below unless a different name and address have been indicated
below and (b) a corresponding number of Stripped Units be registered in the name
of, and delivered to, the undersigned at the address indicated below unless a
different name and address have been indicated below. If the released Pledged
Securities or the Stripped Units are to be registered in the name of a Person
other than the undersigned, the under signed will pay any transfer tax payable
incident thereto.
The undersigned confirms that the requisite Treasury Securities (a list of
which, specifying the face amount at maturity, the maturity date and the Cusip
No., is annexed hereto), any required cash and the instrument from the Call
Option Holder have been delivered to the Collateral Agent.
Dated:
---------------------------------- ----------------------------------
Signature*
If shares are to be registered in the
REGISTERED HOLDER name of and
delivered to a Person other than the
Holder, please print Person's name and Please print name and address of
address: such Registered Holder:
---------------------------------------- ----------------------------------
Name Name
---------------------------------------- ----------------------------------
Address Address
---------------------------------------- ----------------------------------
Social Security or other Taxpayer
Identification Number, if any
----------------------------------
If Stripped Units are to be registered in the name of and delivered to a Person
other than the Holder, please print such Person's name and address: 67
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Pledged Securities or Stripped Units are to be
delivered other than to, and in the name of, the registered Holder.
A-10
78
EXHIBIT B
FORM OF STRIPPED UNIT CERTIFICATE
CMS ENERGY CORPORATION
8.75% ADJUSTABLE CONVERTIBLE SECURITY UNITS
(STATED AMOUNT $41.50 PER UNIT)
CUSIP No. 000000000
No. S-1 0 Stripped Units
This Unit Certificate certifies that Cede & Co. is the registered Holder of
the number of Stripped Units set forth above. Each Stripped Unit represents the
right to purchase Common Stock under a Purchase Contract with CMS Energy
Corporation, a Michigan corporation (the "Company"), together with ownership of
the Treasury Securities pledged to secure the obligations referred to in (a)
below, subject to (a) the obligations owed to the Company under such Purchase
Contract and (b) the pledge arrangements securing the foregoing obligations.
Each Purchase Contract evidenced hereby is governed by a Master Unit
Agreement, dated as of July 8, 1999 (the "Master Unit Agreement"), between the
Company and The Bank of New York, as unit agent (herein called the "Unit
Agent"). All terms used herein which are defined in the Master Unit Agreement
have the meanings set forth therein. The Pledge of the Pledged Securities
evidenced hereby is governed by the Pledge Agreement. Reference is hereby made
to the Master Unit Agreement and the Pledge Agreement, and any supplemental
agreements thereto, for a description of the respective rights, limitations of
rights, obligations, duties and immunities thereunder of the Unit Agent, the
Company, the Collateral Agent and the Holders. The summary contained herein is
qualified in its entirety by the provisions of the Principal Agreements, and the
Principal Agreements shall govern the rights of the parties to the extent that
there is any conflict between such summary and such provisions.
Each Purchase Contract evidenced hereby obligates the Holder of this Unit
Certificate to purchase, and the Company to sell, on July 1, 2002 (the "Stock
Purchase Date"), at a price equal to $41.50 (the "Stated Amount"), a number of
newly issued shares of Common Stock, $.01 par value per share ("Common Stock"),
of the Company equal to the Settlement Rate, unless on or prior to the Stock
B-1
79
Purchase Date there shall have occurred a Termination Event. The "Settlement
Rate" is equal to (a) if the Applicable Market Value (as defined in the Master
Unit Agreement) is greater than or equal to $53 (the "Threshold Appreciation
Price"), .7830 of a share of Common Stock per Purchase Contract, (b) if the
Applicable Market Value is less than the Threshold Appreciation Price but is
greater than $34.24 (the "Floor Price"), a fractional share of Common Stock per
Purchase Contract equal to the Stated Amount divided by the Applicable Market
Value (rounded to the nearest 1/10,000th of a share or, if there is no nearest
1/10,000th of a share, rounded downward to the nearest 1/10,000th of a share)
and (c) if the Applicable Market Amount is less than or equal to the floor
Price, 1.2121 shares of Common Stock per Purchase Contract, in each case subject
to adjustment as provided in the Master Unit Agreement. No fractional shares of
Common Stock will be issued upon settlement of Purchase Contracts, but instead
of any fractional interest the Company shall make a cash payment as provided in
the Master Unit Agreement. The purchase price for the shares of Common Stock to
be purchased pursuant to each Purchase Contract evidenced hereby, if not paid by
10:00 a.m., New York City time, on the Stock Purchase Date, shall be paid by
application of payments received by the Company on the Stock Purchase Date from
the Collateral Agent pursuant to the Pledge Agreement in respect of the Pledged
Securities pledged to secure such Holder's obligations under such Purchase
Contract.
The Purchase Contracts and the obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights and
obligations to receive and pay accrued or deferred Contract Payments, shall
immediately and automatically terminate, without the necessity of any notice or
action by any Holder, the Unit Agent or the Company, if, on or prior to the
Stock Purchase Date, a Termination Event shall have occurred. Upon and after
the occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Securities from the Pledge. The Stripped Units shall thereafter
represent the right to receive the Pledged Securities forming a part of such
Stripped Units in accordance with the provisions of the Master Unit Agreement
and the Pledge Agreement.
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, receiver, liquidator
or a person or entity performing similar functions, its trustee in the event
that the Company becomes the debtor under the Bankruptcy Code or subject to
other similar state or federal law providing for reorganization or liquidation.
B-2
80
The Company shall pay, on each January 1, April 1, July 1 and October 1,
commencing October 1 (each, a "Quarterly Payment Date"), in respect of each
Purchase Contract evidenced hereby, a payment (the "Contract Payment") accruing
on the Stated Amount of such Unit from and including the date of first issuance
of any Units at a rate per annum equal to 8.625% (the "Contract Payment Rate")
(computed on the basis of a 360-day year of twelve 30-day months and subject to
deferral as described in the Master Unit Agreement), plus any additional fees
accrued thereon pursuant to Section 5.03 of the Master Unit Agreement. The
Company's obligations with respect to Contract Payments shall be, to the extent
provided in the Master Unit Agreement, subordinated and subject in right of
payment to all Senior Indebtedness.
Payments due to the Holder in respect of the Stripped Units evidenced
hereby will be payable to the Person in whose name this Unit Certificate (or a
Predecessor Unit Certificate) is registered at the close of business on the
Record Date next preceding the relevant payment date.
The transfer of any Unit Certificate will be registered and Unit
Certificates may be exchanged as provided in the Master Unit Agreement. The Unit
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents permitted by the Master Unit Agreement. No
service charge shall be required for any such registration of transfer or
exchange, but the Company and the Unit Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. For so long as the Purchase Contract underlying a Stripped Unit
remains in effect, such Stripped Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Stripped
Unit in respect of the Pledged Securities and Purchase Contract constituting
such Stripped Unit may be transferred and exchanged only as an integrated
Stripped Unit.
Upon registration of transfer of this Unit Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts evidenced hereby and by the
Pledge Agreement, and the transferor shall be released from such obligations.
The Company covenants and agrees, and the Holder, by his acceptance hereof,
likewise covenants and agrees, to be bound by the provisions of this paragraph.
The Holder of this Unit Certificate, by his acceptance hereof, irrevocably
authorizes the Unit Agent to enter into and perform the related Purchase
Contracts evidenced hereby on his behalf as his attorney-in-fact, agrees to be
bound by the terms
B-3
81
and provisions thereof, covenants and agrees to perform his obligations under
such Purchase Contracts, consents to the provisions of the Principal Agreements,
irrevocably authorizes the Unit Agent to enter into and perform the Pledge
Agreement on his behalf as his attorney-in-fact, and consents to and agrees to
be bound by the Pledge of the Pledged Securities evidenced hereby pursuant to
the Pledge Agreement.
Subject to certain exceptions, the provisions of the Principal Agreements
may be amended with the consent of the Holders of at least a majority of the
Outstanding Units or, if the amendment affects only the Holders of the Normal
Units or only the Holders of the Stripped Units, at least a majority of the
Outstanding Units comprising Normal Units or Stripped Units, as the case may be.
THE PURCHASE CONTRACTS SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF.
The Company, the Unit Agent and any agent of the Company or the Unit Agent
may treat the Person in whose name this Unit Certificate is registered as the
owner of the Stripped Units evidenced hereby for the purpose of receiving
payments of distributions or interest on the Pledged Securities, receiving the
rights and performing the obligations under 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 Unit 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.
Copies of the Principal Agreements are available for inspection at the
offices of the Unit Agent.
Unless the certificate of authentication hereon has been executed by the
Unit Agent by manual signature, this Unit Certificate shall not be entitled to
any benefit under the Principal Agreements or be valid or obligatory for any
purpose.
B-4
82
IN WITNESS WHEREOF, the Company and the Holder hereby agree to their
respective obligations under the Purchase Contracts evidenced by this
instrument, and the Holder hereby acknowledges that the Pledged Securities
evidenced by this instrument are subject to the Pledge under the Pledge
Agreement.
CMS ENERGY CORPORATION
By:
------------------------------------
Attest: Name: Xxxx X. Xxxxxx
-------------------- Title: Senior Vice President and
Chief Financial Officer
HOLDER SPECIFIED ABOVE
By: The Bank of New York,
as Attorney-in-Fact of such Holder
By:
------------------------------------
Name:
Title:
Dated: July 8, 1999
B-5
83
Unit Agent's Certificate of Authentication
This is one of the Unit Certificates referred to in the within mentioned
Master Unit Agreement.
The Bank of New York,
as Unit Agent
By:
------------------------------------
Name:
Title:
Dated: July 8, 1999
B-6
84
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Stock Purchase Date of the
Purchase Contracts underlying the number of Stripped Units evidenced by this
Unit Certificate be registered in the name of, and delivered, together with a
check in payment for any fractional share, to the undersigned at the address
indicated below unless a different name and address have been indicated below.
If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated:
---------------------------------- ----------------------------------
Signature*
If shares are to be registered in the
REGISTERED HOLDER name of and
delivered to a Person other than the
Holder, please print Person's name and Please print name and address of
address: such Registered Holder:
---------------------------------------- ----------------------------------
Name Name
---------------------------------------- ----------------------------------
Address Address
---------------------------------------- ----------------------------------
Social Security or other Taxpayer
Identification Number, if any
----------------------------------
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Common Stock is to be delivered other than to, and
in the name of, the registered Holder.
The Sponsor will provide a copy of the Declaration, the Indenture, the
Trust Preferred Securities Guarantee or the Common Trust Securities Guarantee
(as may be appropriate) and the Indenture (including any supplemental indenture)
to a Holder without charge on written request to the Sponsor at its principal
place of business.
B-7
85
ELECTION TO SETTLE EARLY
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Early Settlement Date of the
Purchase Contracts underlying the number of Normal Units evidenced by this Unit
Certificate be registered in the name of, and delivered to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated:
---------------------------------- ----------------------------------
Signature*
If shares are to be registered in the
name of and delivered to a Person other
than the Holder, please print Person's Please print name and address of
name and address: such Registered Holder:
---------------------------------------- ----------------------------------
Name Name
---------------------------------------- ----------------------------------
Address Address
---------------------------------------- ----------------------------------
Social Security or other Taxpayer
Identification Number, if any
----------------------------------
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Common Stock is to be delivered other than to, and
in the name of, the registered Holder.
B-8
86
EXHIBIT A-1
FORM OF TRUST PREFERRED SECURITIES
FORM OF FACE OF SECURITY
[IF THIS TRUST PREFERRED SECURITY ("TRUST PREFERRED SECURITY") IS A GLOBAL
SECURITY, INSERT: THIS QUARTERLY IN COME PREFERRED SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE
OF THE CLEARING AGENCY. THIS TRUST PREFERRED SECURITY IS EXCHANGEABLE FOR TRUST
PREFERRED SECURITY REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING
AGENCY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
DECLARATION AND NO TRANSFER OF THIS TRUST PREFERRED SECURITY (OTHER THAN A
TRANSFER OF THIS TRUST PREFERRED SECURITY AS A WHOLE BY THE CLEARING AGENCY TO A
NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING AGENCY TO THE
CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING AGENCY) MAY BE REGISTERED
EXCEPT IN LIMITED CIRCUMSTANCES.]
[UNLESS THIS TRUST PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK), A NEW YORK CORPORATION, TO THE TRUST OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY TRUST PREFERRED SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), 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.]
Certificate Number Number of Trust Preferred Securities
CUSIP NO.
AA-1
87
Certificate Evidencing Trust Preferred Securities
of
CMS Energy Trust
8.625% Trust Preferred Securities (liquidation amount $1,000 per Trust Preferred
Security)
CMS Energy Trust II, a statutory business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that __________ (the "Holder")
is the registered owner of _____ securities of the Trust representing preferred
undivided beneficial ownership interests in the assets of the Trust designated
the 8.625% Trust Preferred Securities (liquidation amount $1,000 per Trust
Preferred Security (the "Trust Preferred Securities"). Subject to the terms of
the Declaration (as defined below), the Trust Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Trust Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of July 8, 1999, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Trust Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
but not defined herein shall have the meaning given them in the Declaration. The
Sponsor will provide a copy of the Declaration, the Trust Preferred Securities
Guarantee and the Indenture to a Holder without charge upon written request to
the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder and to the benefits of the Trust
Preferred Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States Federal income
tax purposes, the Trust as a grantor trust, the Debentures as indebtedness and
the Trust Preferred Securities as evidence of indirect beneficial ownership in
the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this 8th day of
July, 1999.
CMS ENERGY TRUST II
By:
------------------------------------
Name:
Title: Administrator
AA-2
88
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to in the
within-mentioned Declaration.
Dated: July 8, 0000
XXX XXXX XX XXX XXXX, not in its
individual capacity, but solely as
Property Trustee
By:
------------------------------------
Authorized Signatory
AA-3
89
FORM OF REVERSE OF SECURITY
Distributions payable on each Trust Preferred Security will be fixed at a
rate per annum of 8.625% until the Call Option Expiration Date, and at the Reset
Rate thereafter (the "Coupon Rate") of the liquidation amount of $1,000 per
Trust Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions in arrears for more
than one quarterly period will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions", as used herein, includes such cash distributions and any such
interest unless otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Debentures held by the Property Trustee
and to the extent the Property Trustee has funds on hand legally available
therefor.
Distributions on the Trust Preferred Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from July 8, 1999 and will be payable
quarterly in arrears, on January 1, April 1, July 1, and October 1 of each year,
commencing on October 1, 1999, except as otherwise described below.
Distributions will be computed on the basis of a 360-day year consisting of
twelve 30-day months. As long as no Event of Default has occurred and is
continuing under the Indenture, the Debenture Issuer has the right under the
Indenture to elect to defer payments of interest by extending the interest
payment period at any time and from time to time on the Debentures (each an
"Extension Period"), provided that no Extension Period shall end on a date other
than an Interest Payment Date for the Debentures or extend beyond the Maturity
Date of the Debentures. As a consequence of such deferral, Distributions will
also be deferred. Despite such deferral, quarterly Distributions will continue
to accumulate with interest thereon (to the extent permitted by applicable law,
but not at a rate exceeding the rate of interest then accruing on the
Debentures) at the Coupon Rate compounded quarterly during any such Extension
Period. Prior to the termination of any such Extension Period, the Debenture
Issuer may further defer payments of interest by further extending such
Extension Period; provided that such Extension Period may not extend beyond the
Maturity Date of the Debentures. Payments of accumulated Distributions will be
payable to Holders as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
Subject to the conditions set forth in the Declaration and the Indenture,
the Property Trustee may, at the direction of the Sponsor, at any time dissolve
the Trust
AA-4
90
and, after satisfaction of liabilities to creditors of the Trust as required by
applicable law, cause the Debentures to be distributed to the holders of the
Securities in liquidation of the Trust.
The Trust Preferred Securities will be subject to mandatory redemption on
the Maturity Date of the Debentures as provided in the Declaration.
The Trust Preferred Securities and the rights of the Holders shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
AA-5
91
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Security to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
and irrevocably appoints agent to transfer this Security on the books of the
Trust.
The agent may substitute another to act for him or her.
Date:
------------------------
Signature:
----------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee(1):
-----------------------------
---------------------
(1) Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program (
"STAMP") or such other "signature guarantee program" as may be deter mined
by the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities and Exchange Act of 1934, as amended.
AA-6
92
NOTICE TO REQUIRE EXERCISE OF JUNIOR SUBORDINATED
DEBENTURE PUT OPTION
The undersigned holder of this Security hereby irrevocably exercises the
right to require the Trust to distribute to the Put Agent Debentures having an
aggregate principal amount equal to the Liquidation Amount of the number of
Trust Preferred Securities listed below (which number does not exceed the number
evidenced hereby) in exchange for such number of Trust Preferred Securities, on
the Put Date indicated below in connection with the concurrent exercise by the
Put Agent on behalf of the holder of this Security of the Debenture Put Option
related hereto on such date. Pursuant to the aforementioned exercise of the
right to require the Trust to distribute to the Put Agent Debentures in exchange
for such number of Trust Preferred Securities, the undersigned hereby directs
the Property Trustee to take any actions necessary to effect the exchange of
such number of Trust Preferred Securities for such principal amount of
Debentures.
Date:
------------------------
Put Date (check one)
Stock Purchase Date
-----
Final Put Date
-----
Number of Trust Preferred Securities (not to exceed number of Trust Preferred
Securities evidenced hereby)
Signature:
----------------------------
(Sign exactly as your name appears on the other side of this Security)
Please Print or Type Name and Address,
Including Zip Code, and Social Security
or Other Identifying Number
------------------
------------------
------------------
Signature Guarantee(1):
-----------------------------
------------------
AA-7
93
(1) Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program (
"STAMP") or such other "signature guarantee program" as may be deter mined
by the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities and Exchange Act of 1934, as amended.
AA-8
