Exhibit 4.22
SUNAMERICA INC.
AND
THE BANK OF NEW YORK,
AS PURCHASE CONTRACT AGENT
FORM OF
PURCHASE CONTRACT AGREEMENT
DATED AS OF NOVEMBER 6, 1996
TABLE OF CONTENTS
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Page
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ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions.............................................1
Section 1.02. Compliance Certificates and Opinions....................9
Section 1.03. Form of Documents Delivered to Agent...................10
Section 1.04. Acts of Holders; Record Dates..........................10
Section 1.05. Notices, Etc., to Agent and the Company................12
Section 1.06. Notice to Holders; Waiver..............................13
Section 1.07. Effect of Headings and Table of Contents...............13
Section 1.08. Successors and Assigns.................................13
Section 1.09. Separability Clause....................................13
Section 1.10. Benefits of Agreement..................................14
Section 1.11. Governing Law..........................................14
Section 1.12. Legal Holidays.........................................14
Section 1.13. Counterparts...........................................14
Section 1.14. Inspection of Agreement................................14
ARTICLE 2
Security Certificate Forms
Section 2.01. Forms of Security Certificates Generally...............15
Section 2.02. Form of Agent's Certificate of Authentication..........15
ARTICLE 3
The Securities
Section 3.01. Title and Terms; Denominations.........................16
Section 3.02. Rights and Obligations Evidenced by the Security
Certificates ........................................16
Section 3.03. Execution, Authentication, Delivery and Dating.........17
Section 3.04. Temporary Security Certificates........................18
Section 3.05. Registration; Registration of Transfer and Exchange....18
Section 3.06. Mutilated, Destroyed, Lost and Stolen Security
Certificates.........................................20
Section 3.07. Persons Deemed Owners..................................21
Section 3.08. Cancellation...........................................22
Section 3.09. Securities Not Separable...............................22
Section 3.10. No Consent to Assumption...............................23
Section 3.11. Cusip Numbers..........................................23
ARTICLE 4
The Treasury Notes
Section 4.01. Payment of Interest; Interest Rights Preserved.........23
Section 4.02. Transfer of Treasury Notes upon Certain Events or
Sale of Treasury Notes...............................24
ARTICLE 5
The Purchase Contracts
Section 5.01. Purchase of Shares of Common Stock on the Final
Settlement Date......................................26
Section 5.02. Contract Fees..........................................27
Section 5.03. Deferral of Payment Dates for Contract Fees............28
Section 5.04. Payment of Purchase Price..............................29
Section 5.05. Issuance of Common Stock...............................30
Section 5.06. Adjustment of Settlement Rate for Dividends,
Distributions, Stock Splits, Etc.....................30
Section 5.07. Notice of Adjustments and Certain Other Events.........35
Section 5.08. Acceleration; Notice...................................36
Section 5.09. Bankruptcy Event or Sale of Assets; Notice.............38
Section 5.10. Holder's Early Settlement..............................39
Section 5.11. No Fractional Shares...................................40
Section 5.12. Charges and Taxes......................................41
ARTICLE 6
Remedies
Section 6.01. Unconditional Right of Holders to Receive Contract Fees
and Purchase Common Stock............................41
Section 6.02. Restoration of Rights and Remedies.....................42
Section 6.03. Rights and Remedies Cumulative.........................42
Section 6.04. Delay or Omission Not Waiver...........................42
Section 6.05. Undertaking for Costs..................................42
Section 6.06. Waiver of Stay or Extension Laws.......................43
ARTICLE 7
The Agent
Section 7.01. Certain Duties and Responsibilities....................43
Section 7.02. Notice of Default......................................44
Section 7.03. Certain Rights of Agent................................45
Section 7.04. Not Responsible for Recitals or Issuance of
Securities...........................................46
Section 7.05. May Hold Securities....................................46
Section 7.06. Money Held in Custody..................................46
Section 7.07. Compensation and Reimbursement.........................46
Section 7.08. Corporate Agent Required; Eligibility..................47
Section 7.09. Resignation and Removal; Appointment of Successor......47
Section 7.10. Acceptance of Appointment by Successor.................49
Section 7.11. Preservation of Information; Communications to
Holders..............................................49
Section 7.12. No Obligations of Agent................................50
Section 7.13. Tax Compliance.........................................50
ARTICLE 8
Supplemental Agreements
Section 8.01. Supplemental Agreements Without Consent of Holders.....51
Section 8.02. Supplemental Agreements with Consent of Holders........51
Section 8.03. Execution of Supplemental Agreements...................52
Section 8.04. Effect of Supplemental Agreements......................53
Section 8.05. Reference to Supplemental Agreements...................53
ARTICLE 9
Covenants
Section 9.01. Performance under Purchase Contracts...................53
Section 9.02. Maintenance of Office or Agency........................53
Section 9.03. Company to Reserve Common Stock........................54
Section 9.04. Covenants as to Common Stock...........................54
Section 9.05. Statements of Officers of the Company as to Default....54
PURCHASE CONTRACT AGREEMENT, dated as of November 6, 1996,
between SunAmerica Inc., a Maryland corporation (the "Company"), and The Bank
of New York, a New York banking corporation, acting as purchase contract agent
for the Holders of Securities from time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of
this Agreement and the Security Certificates evidencing the Securities.
All things necessary to make the Company's obligations under
the Securities, when the Security Certificates are executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Agent,
as in this Agreement provided, the valid obligations of the Company, and to
constitute these presents a valid agreement of the Company, in accordance with
its terms, have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular; and
(2) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Acceleration" means either a "Company Acceleration" or a
"Mandatory Acceleration."
"Acceleration Date" means either a "Company Acceleration Date"
or a "Mandatory Acceleration Date."
"Acceleration Settlement Fund" has the meaning specified in
Section 5.05.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means the Person named as the "Agent" in the first
paragraph of this instrument until a successor Agent shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter
"Agent" shall mean the Person who is then the Agent hereunder.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Bankruptcy Code" means title 11 of the United States Code, or
any other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Bankruptcy Date" means the date, if any, on which a Bankruptcy
Event occurs.
"Bankruptcy Event" means the occurrence of any of the following
events (whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order rule or regulation of any administration or governmental body):
(i) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or any
substantial part of its property or ordering the winding up or liquidation of
its affairs, and such decree or order shall remain unstayed and in effect for
a period of 60 consecutive days; or
(ii) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property, or make
any general assignment for the benefit of creditors.
"Board of Directors" means the board of directors of the
Company or a duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board
of Directors, a copy of which has been certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification and delivered to the Agent.
"Business Day" means any day that is not a Saturday, Sunday or
a day on which the NYSE or banking institutions or trust companies in The
City of New York are authorized or obligated by law or executive order to
be closed.
"Closing Price"means on any date of determination the closing
sales price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the NYSE on such date or, if the Common Stock is
not listed for trading on the NYSE on any such date, as reported in the
composite transactions for the principal United States securities exchange on
which the Common Stock is so listed, or if the Common Stock is not so listed
on a United States national or regional securities exchange, as reported by
The Nasdaq Stock Market, or, if the Common Stock is not so reported, the last
quoted bid price for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization, or, if such
bid price is not available, the market value of the Common Stock on such date
as determined by a nationally recognized independent investment banking firm
retained for this purpose by the Company.
"Collateral Agent" means The First National Bank of Chicago, as
Collateral Agent under the Pledge Agreement until a successor Collateral Agent
shall have become such pursuant to the applicable provisions of the Pledge
Agreement, and thereafter "Collateral Agent" shall mean the Person who is then
the Collateral Agent thereunder.
"Common Stock" means the Common Stock, par value $1.00 per
share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such pursuant
to the applicable provision of this Agreement, and thereafter "Company" shall
mean such successor.
"Company Acceleration" has the meaning specified in Section
5.08.
"Company Acceleration Date" has the meaning specified in
Section 5.08.
"Company Acceleration Price" shall mean the per share price
(payable in shares of Common Stock) at which the Company may accelerate the
Securities, which shall be initially $_______, declining by $______ on each
day following [_______, 1996] (computed on the basis of a 360-day year of
twelve 30-day months) to $______ on [________, 1996] and equal to $______
thereafter.
"Contract Fees" means the fee payable by the Company on each
Payment Date in respect of each Purchase Contract, equal to _____% per annum
of the Stated Amount plus any Deferred Contract Fees accrued pursuant to
Section 5.03, computed on the basis of the actual number of days elapsed in a
year of 365 or 366 days, as the case may be, except that the Contract Fees
payable on the first Payment Date will be adjusted so that the Contract Fees
payable on such date will be the equivalent of ______% of the Stated Amount
per annum accruing from the date of issuance of the Securities to [________,
1996].
"Corporate Trust Office" means the principal corporate trust
office of the Agent at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located at
000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286, Attention:
Corporate Trust Trustee Administrator.
"Current Market Price" has the meaning specified in Section
5.06.
"Deferred Contract Fees" has the meaning specified in Section
5.03.
"Depositary" means a clearing agency registered under the
Exchange Act that is designated to act as Depositary for the Securities as
contemplated by Section 3.05.
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to time,
and the rules and regulations promulgated thereunder.
"Exchange Time" has the meaning specified in Section 5.06(f).
"Excess Treasury Notes" has the meaning specified in Section
4.02.
"Expiration Date" has the meaning specified in Section 1.04.
"Final Settlement Date" means October 31, 1999.
"Final Settlement Fund" has the meaning specified in Section
5.05.
"First Supplemental Indenture" means the First Supplemental
Indenture between the Company and The Bank of New York, as Trustee, dated
as of November 1, 1996.
"Global Security Certificate" means a Security Certificate that
evidences all or part of the Securities and is registered in the name of a
Depositary or a nominee thereof.
"Holder" when used with respect to a Security Certificate (or a
Security), means a Person in whose name the Security evidenced by such
Security Certificate (or the Security Certificate evidencing such Security) is
registered in the Security Register, subject to Section 3.07.
"Holder's Early Settlement" has the meaning specified in
Section 5.10(a).
"Holder's Early Settlement Amount" has the meaning specified in
Section 5.10(a).
"Holder's Early Settlement Date" has the meaning specified in
Section 5.10(a).
"Indenture" means the Prepaid Securities Indenture between the
Company and The Bank of New York, as Trustee, dated as of November 1, 1996.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Company by its Chairman of the Board, any
Vice Chairman, its President or a Vice President and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Agent.
"Mandatory Acceleration" has the meaning specified in Section
5.08.
"Mandatory Acceleration Date" has the meaning specified in
Section 5.08.
"Merger or Consolidation" has the meaning specified in Section
5.08.
"Notice Date" has the meaning specified in Section 5.08.
"NYSE" means the New York Stock Exchange.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, any Vice Chairman of the Board, the President or any
Executive, Senior or other Vice President or the Treasurer and delivered to
the Agent.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company and who
shall be reasonably acceptable to the Agent.
"Outstanding Securities" means, as of the date of
determination, all Securities evidenced by then Outstanding Security
Certificates, except:
(i) If a Bankruptcy Event has occurred, Securities for
which the underlying Treasury Notes have been theretofore
deposited with the Agent in trust for the Holders of such
Securities; and
(ii) On and after a Company Acceleration Date, Securities
as to which the Company has elected to effect a Company
Acceleration of the related Purchase Contracts;
provided, however, that in determining whether the Holders of the requisite
number of Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
Affiliate of the Company shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Agent shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Agent knows
to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Agent the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or
any Affiliate of the Company.
"Outstanding Security Certificates" means, as of the date of
determination, all Security Certificates theretofore authenticated, executed
and delivered under this Agreement, except:
(i) Security Certificates theretofore cancelled by the
Agent or delivered to the Agent for cancellation; and
(ii) Security Certificates in exchange for or in lieu of
which other Security Certificates have been authenticated, executed on behalf
of the Holder and delivered pursuant to this Agreement, other than any such
Security Certificate in respect of which there shall have been presented to
the Agent proof satisfactory to it that such Security Certificate is held by a
bona fide purchaser in whose hands the Securities evidenced by such Security
Certificate are valid obligations of the Company.
"Payment Date" means each April 30 and October 31commencing
April 30, 1997.
"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.
"Permitted Investments" is defined to mean securities that are
(i) direct obligations of the U.S. for the payment of which its full faith and
credit is pledged, (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the U.S., the payment of which
is unconditionally guaranteed as a full faith and credit obligation by the
U.S. or (iii) mutual funds that invest solely in the above U.S. government
obligations.
"Pledge" means the pledge under the Pledge Agreement of the
Treasury Notes constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, among the Company, the Collateral Agent and the Agent, on its own
behalf and as attorney-in-fact for the Holders from time to time of the
Securities.
"Predecessor Security Certificate" of any particular Security
Certificate means every previous Security Certificate evidencing all or a
portion of the rights and obligations of the Holder under the Securities
evidenced thereby; and, for the purposes of this definition, any Security
Certificate authenticated and delivered under Section 3.06 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security Certificate shall
be deemed to evidence the same rights and obligations of the Holder as the
mutilated, destroyed, lost or stolen Security Certificate.
"Prepaid Securities" means the Prepaid Securities issued upon a
Holder's Early Settlement pursuant to the Indenture as supplemental by the
First Supplemental Indenture.
"Purchase Contract," when used with respect to any Security,
means the contract obligating the Company to sell and the Holder of such
Security to purchase Common Stock on the terms and subject to the conditions
set forth in Article 5 hereof.
"Purchased Shares" has the meaning specified in Section 5.06(f).
"Record Date" for the interest and Contract Fees payable on any
Payment Date means, as to any Global Security Certificate, the Business Day
next preceding such Payment Date, and as to any other Security Certificate,
the 15th day of the month preceding such Payment Date.
"Responsible Officer," when used with respect to the Agent,
means any officer of the Agent assigned by the Agent to administer its
corporate trust matters.
"Sale of Assets" means a sale, assignment, transfer, lease or
conveyance of all or substantially all of the properties and assets of the
Company to any Person which results in a voluntary liquidation, dissolution or
winding up of the Company.
"Sale of Assets Date" means the date upon which a Sale of
Assets is approved by the Board of Directors.
"Security" means the collective rights and obligations of a
Holder of a Security Certificate in respect of Treasury Notes with a principal
amount equal to the Stated Amount, subject to the Pledge thereof, and a
Purchase Contract.
"Security Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Securities
specified on such certificate.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05.
"Settlement Date" means an Acceleration Date, a Holder's Early
Settlement Date, a Sale of Assets Date or the Final Settlement Date, as
applicable.
"Settlement Rate" has the meaning specified in Section 5.01.
"Stated Amount" means $_______.
"TIA" means the Trust Indenture Act of 1939, as amended, or any
successor statute.
"Trading Day" has the meaning specified in Section 5.06.
"Treasury Notes" means ______% United States Treasury Notes
due October 31, 1999.
"Underwriting Agreement" means the Purchase Agreement dated
October 31, 1996 between the Company and Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx, Sachs & Co. and
Xxxxx Xxxxxx, Inc., as representatives of the several Underwriters named
therein.
"Vice President" means any vice president, whether or not
designated by a number or a word or words added before or after the title
"vice president."
Section 1.02. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon
any application or request by the Company to the Agent to take any action
under any provision of this Agreement, the Company shall furnish to the Agent
an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Agreement relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(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.
Section 1.03 Form of Documents Delivered to Agent.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be
consolidated and form one instrument.
Section 1.04. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are
delivered to the Agent and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Agreement and (subject to Section 7.01) conclusive in
favor of the Agent and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Agent deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security
Certificate evidencing such Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Agent or the Company
in reliance thereon, whether or not notation of such action is made upon
such Security Certificate.
(e) The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Agreement to be given, made or
taken by Holders of Securities. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to take the relevant action, whether or not
such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite number of Outstanding Securities
on such record date. Nothing in this paragraph shall be construed to prevent
the Company from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record
date previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite number of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Agent in writing
and to each Holder of Securities in the manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section,
the Company may designate any date as the "Expiration Date" and from time to
time may change the Expiration Date to any earlier or later day; provided that
no such change shall be effective unless notice of the proposed new Expiration
Date is given to the Agent in writing, and to each Holder of Securities in the
manner set forth in Section 1.06, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the Company shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Section 1.05. Notices, Etc., to Agent and the Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Agreement to be made upon, given or furnished to, or filed with,
(a) the Agent by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or mailed,
first-class postage prepaid, to the Agent at 000 Xxxxxxx Xxxxxx, Xxxxx 21
West, New York, New York 10286, Attention: Corporate Trust Trustee
Administrator, or at any other address previously furnished in writing by the
Agent to the Holders and the Company, or
(b) the Company by the Agent or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or mailed,
first-class postage prepaid, to the Company at 0 XxxXxxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention:
, or at any other address previously furnished in writing to the Agent by the
Company.
Section 1.06. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Agent, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Agent
shall constitute a sufficient notification for every purpose hereunder.
Section 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.08. Successors and Assigns.
All covenants and agreements in this Agreement by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.09. Separability Clause.
In case any provision in this Agreement or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and thereof shall not in any
way be affected or impaired thereby.
Section 1.10. Benefits of Agreement.
Nothing in this Agreement or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefits or any legal or equitable
right, remedy or claim under this Agreement. The Holders from time to time
shall be beneficiaries of this Agreement and shall be bound by all of the
terms and conditions hereof and of the Securities evidenced by their Security
Certificates by their acceptance of delivery thereof.
Section 1.11. Governing Law.
This Agreement and the Securities shall be governed by and
construed in accordance with the laws of the State of New York without regard
to conflict of laws.
Section 1.12. Legal Holidays.
In any case where any Payment Date or any Settlement Date shall
not be a Business Day, then (notwithstanding any other provision of this
Agreement or of the Securities) payment in respect of interest on Treasury
Notes or Contract Fees or settlement of Purchase Contracts shall not be made,
Purchase Contracts shall not be performed and settlement shall not be effected
on such date, but such payments shall be made, or the Purchase Contracts shall
be performed or settlement effected, as applicable, on the next succeeding
Business Day with the same force and effect as if made on such Payment Date or
Settlement Date, as the case may be; provided, that no interest shall accrue
or be payable by the Company or any Holder for the period from and after any
such Payment Date or Settlement Date, as the case may be.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which, when so executed, shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable
times at the Corporate Trust Office for inspection by any Holder.
ARTICLE 2
Security Certificate Forms
Section 2.01. Forms of Security Certificates Generally.
The Security Certificates (including the form of Purchase
Contracts forming part of the Securities evidenced thereby) shall be in
substantially the form set forth in Exhibit A hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by
the rules of any securities exchange on which the Securities are listed or
Depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Security Certificates, as evidenced by
their execution of the Security Certificates.
The definitive Security Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Security Certificates, consistent with the provisions of this Agreement, as
evidenced by their execution thereof.
Every Global Security Certificate authenticated, executed on
behalf of the Holders and delivered hereunder shall bear a legend in
substantially the following form:
THIS SECURITY CERTIFICATE IS A GLOBAL SECURITY CERTIFICATE WITHIN THE MEANING
OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY CERTIFICATE
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY CERTIFICATE
REGISTERED, AND NO TRANSFER OF THIS SECURITY CERTIFICATE IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE
CONTRACT AGREEMENT.
Section 2.02. Form of Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the
Securities shall be in substantially the form set forth on the form of the
Security Certificates.
ARTICLE 3
The Securities
Section 3.01. Title and Terms; Denominations.
The aggregate number of Securities evidenced by Security
Certificates authenticated, executed on behalf of the Holders and delivered
hereunder is limited to 7,000,000 (subject to increase up to a maximum of
1,050,000 to the extent the over-allotment option of the underwriters under
the Underwriting Agreement is exercised) with a Stated Amount of per
Security, except for Security Certificates authenticated, executed and
delivered upon registration of transfer of, in exchange for, or in lieu of,
other Security Certificates pursuant to Section 3.04, 3.05, 3.06, 5.10 or
8.05.
The Security Certificates shall be issuable only in registered
form and only in denominations of a single Security and any integral multiple
thereof.
Section 3.02. Rights and Obligations Evidenced by the Security
Certificates.
Each Security Certificate shall evidence the number of
Securities specified therein, with each such Security representing the
ownership by the Holder thereof of Treasury Notes with a principal amount
equal to the Stated Amount, subject to the Pledge of such Treasury Notes by
such Holder pursuant to the Pledge Agreement, and the rights and obligations
of the Holder under one Purchase Contract. The Agent as attorney-in-fact for,
and on behalf of, the Holder shall pledge, pursuant to the Pledge Agreement,
dated as of the date hereof, the Treasury Notes to the Collateral Agent and
grant to the Collateral Agent a security interest in the right, title, and
interest of such Holders in the Treasury Notes, for the benefit of the
Company, to secure the obligation of the Holders under the Purchase Contracts
to purchase the Common Stock of the Company. Prior to the purchase, if any, of
shares of Common Stock under the Purchase Contracts, the Securities shall not
entitle the Holders to any of the rights of a holder of shares of Common
Stock, including, without limitation, the right to vote or receive any
dividends or other payments or to consent or to receive notice as stockholders
in respect of the meetings of stockholders or for the election of directors of
the Company or for any other matter, or any other rights whatsoever as
stockholders of the Company, except to the extent otherwise expressly provided
in this Agreement.
Section 3.03. Execution, Authentication, Delivery and Dating.
Upon the execution and delivery of this Agreement, and at any
time and from time to time thereafter, the Company may deliver Security
Certificates executed by the Company to the Agent for authentication,
execution on behalf of the Holders and delivery, together with its Issuer
Order for authentication of such Security Certificates, and the Agent in
accordance with such Issuer Order shall authenticate, execute on behalf of the
Holder and made available for delivery such Security Certificates.
The Security Certificates shall be executed on behalf of the
Company by its Chairman of the Board, any Vice Chairman of the Board, its
President or any Executive, Senior or other Vice President or its Treasurer,
under its corporate seal which may, but need not, be attested. The signature
of any of these officers on the Security Certificates may be manual or
facsimile.
Security Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Security Certificates or did not hold such offices at the
date of such Security Certificates.
No Purchase Contract underlying a Security evidenced by a
Security Certificate shall be valid until such Security Certificate has been
executed on behalf of the Holder by the manual signature of an authorized
signatory of the Agent, as such Holder's attorney-in-fact. Such signature by
an authorized signatory of the Agent shall be conclusive evidence that the
Holder of such Security Certificate has entered into the Purchase Contracts
underlying the Securities evidenced by such Security Certificate.
Each Security Certificate shall be dated the date of its
authentication.
No Security Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose unless there appears
on such Security Certificate a certificate of authentication substantially in
the form provided for herein executed by an authorized signatory of the Agent
by manual signature, and such certificate upon any Security Certificate shall
be conclusive evidence, and the only evidence, that such Security Certificate
has been duly authenticated and made available for delivery hereunder.
Section 3.04. Temporary Security Certificates.
Pending the preparation of definitive Security Certificates,
the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holders, and deliver, in lieu of such
definitive Security Certificates, temporary Security Certificates which are in
substantially the form set forth in Exhibit A hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by
the rules of any securities exchange on which the Securities are listed, or as
may, consistently herewith, be determined by the officers of the Company
executing such Security Certificates, as evidenced by their execution of the
Security Certificates.
If temporary Security Certificates are issued, the Company will
cause definitive Security Certificates to be prepared without unreasonable
delay. After the preparation of definitive Security Certificates, the
temporary Security Certificates shall be exchangeable for definitive Security
Certificates upon surrender of the temporary Security Certificates at the
Corporate Trust Office, at the expense of the Company and without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Security Certificates, the Company shall execute and deliver to the Agent, and
the Agent shall authenticate, execute on behalf of the Holder, and deliver in
exchange therefor, one or more definitive Security Certificates of authorized
denominations and evidencing a like number of Securities as the temporary
Security Certificate or Security Certificates so surrendered. Until so
exchanged, the temporary Security Certificates shall in all respects evidence
the same benefits and the same obligations with respect to the Securities
evidenced thereby as definitive Security Certificates.
Section 3.05. Registration; Registration of Transfer and
Exchange.
The Agent shall keep at the Corporate Trust Office a register
(the register maintained in such office being herein referred to as the
"Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Agent shall provide for the registration of Security
Certificates and of transfers of Security Certificates (the Agent, in such
capacity, the "Security Registrar").
Upon surrender for registration of transfer of any Security
Certificate at the Corporate Trust Office, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf of
the designated transferee or transferees, and deliver, in the name of the
designated transferee or transferees, one or more new Security Certificates of
any authorized denominations and evidencing a like number of Securities.
At the option of the Holder, Security Certificates may be
exchanged for other Security Certificates, of any authorized denominations and
evidencing a like number of Securities, upon surrender of the Security
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Security Certificates are so surrendered for exchange, the Company shall
execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holder, and deliver the Security Certificates which the Holder
making the exchange is entitled to receive.
All Security Certificates issued upon any registration of
transfer or exchange of a Security Certificate shall evidence the ownership of
the same number of Securities and be entitled to the same benefits and subject
to the same obligations, under this Agreement as the Securities evidenced by
the Security Certificate surrendered upon such registration of transfer or
exchange.
Every Security Certificate presented or surrendered for
registration of transfer or for exchange shall (if so required by the Agent)
be duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Agent duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of a Security Certificate, but the Company and the Agent
may require payment from the Holder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Security Certificates, other than any
exchanges pursuant to Sections 3.06 and 8.05 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder and deliver any
Security Certificate presented or surrendered for registration of transfer or
for exchange on or after a Bankruptcy Date or a Settlement Date.
The provisions of Clauses (a), (b), (c) and (d) below shall
apply only to Global Security Certificates:
(a) Each Global Security Certificate authenticated and
executed on behalf of the Holders under this Agreement shall be registered
in the name of the Depositary designated for such Global Security
Certificate or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security
Certificate shall constitute a single Security Certificate for all purposes
of this Agreement.
(b) Notwithstanding any other provision in this Agreement, no
Global Security Certificate may be exchanged in whole or in part for Security
Certificates registered, and no transfer of a Global Security Certificate in
whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security Certificate or a nominee thereof unless
(A) such Depositary (i) has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Security Certificate or (ii)
has ceased to be a clearing agency registered under the Exchange Act or (B)
there shall have occurred and be continuing a default by the Company in
respect to its obligations under one or more Purchase Contracts.
(c) Subject to Clause (b) above, any exchange of a Global
Security Certificate for other Security Certificates may be made in whole
or in part, and all Security Certificates issued in exchange for a Global
Security Certificate or any portion thereof shall be registered in such
names as the Depositary for such Global Security Certificate shall direct.
(d) Every Security Certificate authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security Certificate or any portion thereof, whether pursuant to this Section,
Section 3.04, 3.06, 5.10 or 8.05 or otherwise, shall be authenticated,
executed on behalf of the Holders and delivered in the form of, and shall be,
a Global Security Certificate, unless such Security Certificate is registered
in the name of a Person other than the Depositary for such Global Security
Certificate or a nominee thereof.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Security
Certificates.
If any mutilated Security Certificate is surrendered to the
Agent, the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and made available for delivery
in exchange therefor, a new Security Certificate, evidencing the same number
of Securities and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security Certificate, and (ii) such security or indemnity as may be required
by them to save each of them and any agent of any of them harmless, then, in
the absence of notice to the Company or the Agent that such Security
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holder, and made available for delivery to the Holder, in lieu
of any such destroyed, lost or stolen Security Certificate, a new Security
Certificate, evidencing the same number of Securities and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder, and deliver to the
Holder, a Security Certificate on or after a Bankruptcy Date or a Settlement
Date.
Upon the issuance of any new Security Certificate under this
Section, the Company and the Agent may require the payment by the Holder of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Agent) connected therewith.
Every new Security Certificate issued pursuant to this section
in lieu of any destroyed, lost or stolen Security Certificate shall constitute
an original additional contractual obligation of the Company and of the
Holder, whether or not the destroyed, lost or stolen Security Certificate
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits and be subject to all the obligations of this Agreement equally and
proportionately with any and all other Security Certificates delivered
hereunder.
The provisions of this section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or settlement of mutilated, destroyed, lost or stolen Security
Certificates.
Section 3.07. Persons Deemed Owners.
Prior to due presentment of a Security Certificate for
registration of transfer, the Company and the Agent, and any agent of the
Company or the Agent, may treat the Person in whose name such Security
Certificate is registered as the owner of the Securities evidenced thereby,
for the purpose of receiving payments of interest on the Treasury Notes,
receiving payments of Contract Fees, performance of the Purchase Contracts and
for all other purposes whatsoever, whether or not the payment of interest on
the Treasury Notes or any Contract Fees payable in respect of the Purchase
Contracts constituting a part of the Securities evidenced thereby shall be
overdue and notwithstanding any notice to the contrary, and neither the
Company nor the Agent, nor any agent of the Company or the Agent, shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Security Certificate, nothing herein shall prevent the Company, the Agent or
any agent of the Company or the Agent, from giving effect to any written
certification, proxy or other authorization furnished by any Depositary (or
its nominee), as a Holder, with respect to such Global Security Certificate or
impair, as between such Depositary and owners of beneficial interests in such
Global Security Certificate, the operation of customary practices governing
the exercise of rights of such Depositary (or its nominee) as Holder of such
Global Security Certificate.
Section 3.08. Cancellation.
All Security Certificates surrendered for delivery of shares of
Common Stock on or after the Final Settlement Date or an earlier Acceleration
Date, transfer of Treasury Notes after the occurrence of a Bankruptcy Event or
Sale of Assets or pursuant to a Holder's Early Settlement or registration of
transfer or exchange shall, if surrendered to any Person other than the Agent,
be delivered to the Agent and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Agent for
cancellation any Security Certificates previously authenticated, executed and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Security Certificates so delivered shall, upon Issuer
Order, be promptly cancelled by the Agent. No Security Certificates shall be
authenticated, executed on behalf of the Holder and delivered in lieu of or in
exchange for any Security Certificates cancelled as provided in this Section,
except as expressly permitted by this Agreement. All cancelled Security
Certificates held by the Agent shall be disposed of as directed by Issuer
Order, except the Agent shall not be required to destroy the Security
Certificates.
If the Company or any Affiliate of the Company shall acquire
any Security Certificate, such acquisition shall not operate as a cancellation
of such Security Certificate unless and until such Security Certificate is
delivered to the Agent cancelled or for cancellation.
Section 3.09. Securities Not Separable.
Notwithstanding anything contained herein or in the Security
Certificates to the contrary, for so long as the Purchase Contract comprising
a portion of a Security remains in effect, such Security shall not be
separable into its constituent parts, for purposes of transfer or exchange of
such Security, and the rights and obligations of the Holder of such Security
in respect of the Treasury Notes and Purchase Contracts comprising such
Security may be acquired, and may be transferred and exchanged, only as a
Security. Other than a Security Certificate evidencing a Security, no Holder
of a Security, or any transferee thereof, shall be entitled to receive a
certificate evidencing the ownership of Treasury Notes or the rights and
obligations of the Holder and the Company under a Purchase Contract for so
long as the Purchase Contract underlying the Security remains in effect.
Section 3.10. No Consent to Assumption.
Each Holder of a Security, by acceptance thereof, shall be
deemed expressly to have withheld any consent to the assumption under Section
365 of the Bankruptcy Code or otherwise, of the Purchase Contract by the
Company or its trustee in the event that the Company becomes the debtor under
the Bankruptcy Code.
Section 3.11. Cusip Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Agent shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of
Acceleration and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such Acceleration shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Agent of any change in the CUSIP numbers.
ARTICLE 4
The Treasury Notes
Section 4.01. Payment of Interest; Interest Rights Preserved.
Interest on any Treasury Note which is paid on any Payment Date
shall, subject to receipt thereof by the Agent from the Collateral Agent as
provided by the terms of the Pledge Agreement, be paid to the Person in whose
name the Security Certificate (or one or more Predecessor Security
Certificates) of which such Treasury Note is a part is registered at the close
of business on the Record Date next preceding such Payment Date. The Company
shall pay the accrued interest on the Treasuary Notes for the period from
November 1, 1996 to November 6, 1996 (the "Holder's Accrued Interest"). The
Holder shall receive the Holder's Accrued Interest as part of the interest
payment on the Treasury Notes upon the first Payment Date.
Each Security Certificate evidencing Treasury Notes delivered
under this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Security Certificate shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by the Treasury Notes
underlying such other Security Certificate.
In the case of any Security with respect to which settlement of
the underlying Purchase Contract is effected on a Settlement Date after any
Record Date and on or prior to the next succeeding Payment Date, interest on
the Treasury Notes underlying such Security otherwise payable on such Payment
Date shall be payable on such Payment Date notwithstanding such settlement,
and such interest shall, subject to receipt thereof by the Agent, be paid to
the Person in whose name the Security Certificate (or one or more Predecessor
Security Certificates) is registered at the close of business on the Record
Date.
Section 4.02. Transfer of Treasury Notes upon Certain Events or
Sale of Treasury Notes.
(a) Upon the occurrence of a Bankruptcy Event or Sale of Assets
and the transfer to the Agent of the Treasury Notes underlying such Securities
pursuant to the terms of the Pledge Agreement, the Agent shall request
transfer instructions with respect to such Treasury Notes from each Holder of
Securities by written request mailed to such Holder at his address as it
appears in the Security Register, in respect of the Treasury Notes underlying
the Security Certificate held by such Holder. Upon surrender to the Agent of a
Security Certificate with such transfer instructions in proper form for
transfer of the Treasury Notes by Federal Reserve Bank-Wire or other
appropriate procedure, subject to the receipt of the Treasury Notes, the Agent
shall transfer the Treasury Notes evidenced by such Security Certificate to
such Holder in accordance with such instructions within three Business Days.
If a Security Certificate is not duly surrendered to the Agent with
appropriate transfer instructions, the Agent shall hold the Treasury Notes
evidenced by such Security Certificate as custodian for the Holder of such
Security Certificate.
(b) In the event of an Acceleration of Securities, Holders so
accelerated may elect to pay to the Company through the Agent by no later than
5:00 p.m., New York City time on the third Business Day immediately preceding
the Acceleration Date in immediately available funds an amount in U.S. dollars
equal to the Stated Amount per Security so accelerated. Holders may make the
election provided in this Section only in integral multiples of
Securities. Upon Surrender to the Agent of a Security Certificate with such
transfer instructions in proper form for transfer of the Treasury Notes by
Federal Reserve Bank-Wire or other appropriate procedure, along with the
payment described in the previous sentence, the Agent shall transfer the
Treasury Notes evidenced by such Security Certificate to such Holder in
accordance with such instructions within three Business Days of such payment.
The Company will pay on the Acceleration Date only accrued Contract Fees to
holders of Securities who elect to pay the Stated Amount in cash upon an
Acceleration as provided in this Section.
(c) Treasury Notes shall be transferred only in denominations of
$ and integral multiples thereof. As promptly as practicable following the
occurrence of a Bankruptcy Event, Sale of Assets, Holder's Early Settlement or
Acceleration (in connection with which some Holders have elected to receive
the Treasury Notes in accordance with paragraph (b) of this Section), the
Company shall determine the excess of (i) the aggregate principal amount of
Treasury Notes underlying the Outstanding Securities over (ii) the
aggregate principal amount of Treasury Notes in denominations of $ and
integral multiples thereof transferrable to Holders of record on such
Bankruptcy Event Date, Sale of Assets Date, Holder's Early Settlement Date
or Acceleration Date, (such excess being herein referred to as the "Excess
Treasury Notes"). As soon as practicable after transfer to the Agent of
the Treasury Notes underlying the Outstanding Securities as provided in the
Pledge Agreement, at the instruction of the Company the Agent shall sell
the Excess Treasury Notes to or through one or more U.S. Government
securities dealers selected by the Company at then prevailing prices. The
Agent shall deduct from the proceeds of such sales all commissions and
other out-of-pocket transaction costs incurred in connection with such
sales of Excess Treasury Notes and, until the net proceeds of such sale or
sales have been distributed to Holders of the Securities (in the case of an
Acceleration, Holders who have elected to receive Treasury Notes), the
Agent shall hold such proceeds as custodian for such Holders of Securities.
Such proceeds shall be held by the Agent uninvested without liability to
any Person for interest or other compensation thereon. Each Holder shall
be entitled to receive a portion, if any, of such net proceeds in lieu of
Treasury Notes with a principal amount of less than $ determined by
multiplying the aggregate amount of such net proceeds by a fraction, the
numerator of which is the fraction of $ in principal amount of Treasury
Notes to which such Holder would otherwise be entitled (after taking into
account all Securities then held by such Holder) and the denominator of
which is the aggregate principal amount of Excess Treasury Notes.
(d) In the case of an Acceleration of Securities, except with
respect to Holders that elect to pay the Stated Amount in immediately
available funds not later than 5:00 p.m., New York City time on the third
Business Day immediately preceding the Acceleration Date in accordance with
paragraph (b) of this Section, the Agent on behalf of each Holder will sell on
the second Business Day immediately preceding the Acceleration Date the
Treasury Notes underlying each such Holder's Securities to or through one or
more U.S. government securities dealers selected by the Company at the then
prevailing prices and automatically apply on the Acceleration Date, out of the
proceeds of such sale, an amount equal to the Stated Amount to satisfy in full
each such Holder's obligation to purchase the Common Stock on the Acceleration
Date. Any excess proceeds (in respect of premium on the sale of the Treasury
Notes) will be paid to such Holder. In the event that the proceeds from the
sale of such Treasury Notes (exclusive of accrued interest on the Treasury
Notes) is less than the Stated Amount, such proceeds nevertheless will be
considered to satisfy in full each such Holder's obligation to purchase the
Common Stock on the Acceleration Date. Amounts in respect of accrued interest
on the Treasury Notes will be paid to each such Holder on the Acceleration
Date. The Agent shall deduct from the proceeds of such sales all commissions
and other out-of-pocket transaction costs incurred in connection with the sale
of such Treasury Notes and, until the net proceeds of such sale or sales have
been distributed to Holders of the Securities, the Agent shall hold such
proceeds as custodian for the Holders of Securities. Such proceeds shall be
held by the Agent uninvested without liability to any Person for interest or
other compensation thereon.
ARTICLE 5
The Purchase Contracts
Section 5.01. Purchase of Shares of Common Stock on the Final
Settlement Date.
Each Purchase Contract shall obligate the Holder of the related
Security to purchase, and the Company to sell, on the Final Settlement Date at
a price equal to the Stated Amount, a number of shares of Common Stock equal
to the Settlement Rate on the Final Settlement Date, unless, on or prior to
the Final Settlement Date, there shall have occurred a Bankruptcy Event , Sale
of Assets, an Acceleration or a Holder's Early Settlement with respect to the
Security of which such Purchase Contract is a part. The "Settlement Rate" is
initially equal to a share of Common Stock per Purchase Contract, subject to
adjustments as set forth in Section 5.06.
Each Holder of a Security Certificate evidencing Securities, by
his acceptance thereof, authorizes the Agent to enter into and perform the
related Purchase Contracts on his behalf as his attorney-in-fact, agrees to be
bound by the terms and provisions thereof, covenants and agrees to perform his
obligations under such Purchase Contracts, consents to the provisions hereof,
authorizes the Agent as his attorney-in-fact to enter into and perform the
Pledge Agreement on his behalf as his attorney-in-fact, and consents to and
agrees to be bound by the Pledge of the Treasury Notes underlying such
Security Certificate pursuant to the Pledge Agreement. Each Holder of a
Security, by his acceptance thereof, further covenants and agrees, that, to
the extent and in the manner provided in Section 5.04 and the Pledge
Agreement, but subject to the terms thereof, payments in respect of principal
of the Treasury Notes on the Final Settlement Date shall be paid by the
Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such payments.
Upon registration of transfer of a Security Certificate
evidencing Purchase Contracts, the transferee shall be bound (without the
necessity of any other action on the part of such transferee), under the terms
of this Agreement, the Purchase Contracts evidenced thereby and the Pledge
Agreement and the transferor shall be released from the obligations under the
Purchase Contracts evidenced by the Security Certificates so transferred. The
Company covenants and agrees, and each Holder of a Security Certificate, by
his acceptance thereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
Section 5.02. Contract Fees.
Subject to Section 5.03, the Company shall pay by 12:00 noon
New York City time to the Agent, on each Payment Date, the Contract Fees
payable in respect of each Purchase Contract for the benefit of the Person in
whose name the Security Certificate (or one or more Predecessor Security
Certificates) evidencing such Purchase Contract is registered at the close of
business on the Record Date next preceding such Payment Date. The Contract
Fees will be payable at the office of the Agent in The City of New York
maintained for that purpose or, at the option of the Company, by check mailed
to the address of the Person entitled thereto at such address as it appears on
the Security Register.
Each Security Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any other
Security Certificate shall carry the rights to Contract Fees accrued and
unpaid, and to accrue, which were carried by the Purchase Contracts evidenced
by such other Security Certificate.
In the case of any Security with respect to which settlement of
the underlying Purchase Contract is effected on a Settlement Date after any
Record Date and on or prior to the next succeeding Payment Date, Contract Fees
otherwise payable on such Payment Date shall be payable on such Payment Date
notwithstanding such settlement, and such Contract Fees shall be paid to the
Person in whose name the Security Certificate evidencing such Security (or one
or more Predecessor Security Certificates) is registered at the close of
business on such Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Security with respect to
which settlement of the underlying Purchase Contract is effected on a
Settlement Date (other than a Holder's Early Settlement Date), Contract Fees
that would otherwise be payable after such Settlement Date with respect to the
Purchase Contract underlying such Security shall not be payable. Contract
Fees shall not be paid upon a Bankruptcy Event.
The Company's obligations with respect to Contract Fees shall
rank equally and pari passu with all other senior and unsubordinated debt of
the Company.
Section 5.03. Deferral of Payment Dates for Contract Fees.
The Company shall have the right, at any time prior to the
Final Settlement Date, an Acceleration Date or Sale of Assets Date applicable
to a Holder's Securities, to defer the payment of any or all of the Contract
Fees otherwise payable on any Payment Date (on a pro rata basis among all
Outstanding Securities), but only if the Company shall give the Holders and
the Agent written notice of its election to defer such payment (specifying the
amount to be deferred) at least ten Business Days prior to the earlier of (i)
the next succeeding Payment Date or (ii) the date the Company is required to
give notice of the Record Date or Payment Date with respect to payment of such
Contract Fees to the NYSE or other applicable self-regulatory organization or
to Holders of the Securities, but in any event not less than two Business Days
prior to such Record Date. Any Contract Fees so deferred shall bear additional
Contract Fees thereon at the rate of ______% per annum (computed on the basis
of the actual number of days elapsed in a year of 365 or 366 days, as the case
may be), compounding on each succeeding Payment Date, until paid in full (such
deferred installments of Contract Fees together with the additional Contract
Fees accrued thereon, are referred to herein as the "Deferred Contract Fees").
Deferred Contract Fees shall be due on the next succeeding Payment Date except
to the extent that payment is deferred pursuant to this Section. The Company
may pay Deferred Contract Fees in whole or in part on any Payment Date (on a
pro rata basis among all Outstanding Securities). No Contract Fees may be
deferred to a date that is after the Final Settlement Date or a Sale of Assets
Date or, with respect to any particular Purchase Contract, the Acceleration
thereof.
In the event the Company elects to defer the payment of
Contract Fees on the Purchase Contract until the Final Settlement Date, a Sale
of Assets Date, a Company Acceleration Date or a Mandatory Acceleration Date
(with respect to which the Company has not elected to make payment in shares
of Common Stock), the Company shall make a cash payment equal to the aggregate
amount of Deferred Contract Fees payable to a Holder.
No fractional shares of Common Stock will be issued by the
Company with respect to the payment of Deferred Contract Fees on a Mandatory
Acceleration Date. In lieu of fractional shares otherwise issuable with
respect to such payment of Deferred Contract Fees, the Holder will be entitled
to receive an amount in cash as provided in Section 5.11.
In the event the Company exercises its option to defer the
payment of Contract Fees, then, until the Deferred Contract Fees have been
paid in full, the Company shall not declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchase or acquisitions of shares of Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit
plans now or hereafter in effect or the satisfaction by the Company of its
obligations pursuant to any contract or security now or hereafter outstanding
requiring the Company to purchase shares of Common Stock, (ii) as a result of
a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock (iii) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (iv) the payment of accrued dividends (and cash in
lieu of fractional shares) upon the conversion of any shares of preferred
stock of the Company as may be outstanding from time to time, in accordance
with the terms of such stock or (v) dividends on its capital stock paid in
shares of capital stock) or make any guarantee payments with respect to the
foregoing.
Section 5.04. Payment of Purchase Price.
Unless a Holder settles the underlying Purchase Contract either
through the early delivery of cash to the Agent in the manner described in
Sections 4.02(b), 5.08, 5.10 or otherwise, the purchase price for the shares
of Common Stock purchased pursuant to a Purchase Contract shall be paid by
application of payments received by the Company on the Final Settlement Date
or an earlier Acceleration Date from the Collateral Agent pursuant to the
Pledge Agreement in respect of the principal of the Treasury Notes Pledged to
secure the obligations of the relevant Holder under such Purchase Contract.
Such application shall satisfy in full the obligations under such Purchase
Contract of the Holder of the Security of which such Purchase Contract is a
part. The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment in full of the aggregate purchase
price for the shares of Common Stock to be purchased thereunder in the manner
herein set forth.
Section 5.05. Issuance of Common Stock.
Unless a Bankruptcy Event or Sale of Assets shall have occurred
on or prior to the Final Settlement Date or an earlier Acceleration Date, on
the Final Settlement Date or an earlier Acceleration Date, upon the Company's
receipt of payment in full of the purchase price for the shares of Common
Stock purchased by the Holders pursuant to the foregoing provisions of this
Article, and in payment of Deferred Contract Fees, if any, owed by the Company
to the Holders, the Company shall issue and deposit with the Agent, for the
benefit of the Holders of the Outstanding Securities, one or more certificates
representing the shares of Common Stock registered in the name of the Agent
(or its nominee) as custodian for the Holders (such certificates for shares of
Common Stock, together with any dividends or distributions with respect
thereto, being hereinafter referred to as the "Final Settlement Fund" or
"Acceleration Settlement Fund" as applicable) to which the Holders are
entitled hereunder. Subject to the foregoing, upon surrender of a Security
Certificate to the Agent on or after the Final Settlement Date or earlier
Acceleration Date, together with settlement instructions thereon duly
completed and executed, the Holder of such Security Certificate shall be
entitled to receive in exchange therefor a certificate representing that
number of whole shares of Common Stock which such Holder is entitled to
receive pursuant to the provisions of this Article Five (after taking into
account all Securities then held by such Holder) together with cash in lieu of
fractional shares as provided in Section 5.11 or any other cash payments and
any dividends or distributions with respect to such shares constituting part
of the Final Settlement Fund or Acceleration Settlement Fund, as applicable,
but without any interest thereon, and the Security Certificate so surrendered
shall forthwith be cancelled. Such shares shall be registered in the name of
the Holder or the Holder's designee as specified in the settlement
instructions on the Security Certificate. If any shares of Common Stock
issued in respect of a Purchase Contract are to be registered to a Person
other than the Person in whose name the Security Certificate evidencing such
Purchase Contract is registered, no such registration shall be made unless the
Person requesting such registration has paid any transfer and other taxes
required by reason of such registration in a name other than that of the
registered Holder of the Security Certificate evidencing such Purchase
Contract or has established to the satisfaction of the Company that such tax
either has been paid or is not payable.
Section 5.06. Adjustment of Settlement Rate for Dividends,
Distributions, Stock Splits, Etc.
(a) In case the Company shall pay or make a dividend or other
distribution on any class of Common Stock of the Company in Common Stock, the
Settlement Rate in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be increased by dividing such Settlement
Rate by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or other
distribution, such increase to become effective immediately after the opening
of business on the day following the date fixed for such determination. For
the purposes of this paragraph (a), 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.
(b) In case the Company shall issue rights, options or warrants to
all holders of its Common Stock (not being available on an equivalent basis to
Holders of the Securities upon settlement of the Purchase Contracts underlying
such Securities) entitling them, for a period expiring within 45 days after
the record date for the determination of stockholders entitled to receive such
rights, options or warrants, to subscribe for or purchase shares of Common
Stock at a price per share less than the Current Market Price per share of the
Common Stock on the date fixed for the determination of stockholders entitled
to receive such rights, options or warrants (other than pursuant to a dividend
reinvestment plan), the Settlement Rate in effect at the opening of business
on the day following the date fixed for such determination shall be increased
by dividing such Settlement Rate by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination plus the number of shares of Common
Stock which the aggregate of the offering price of the total number of shares
of Common Stock so offered for subscription or purchase would purchase at such
Current Market Price and the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (b), 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.
(c) In case outstanding shares of Common Stock shall be subdivided
or split into a greater number of shares of Common Stock, the Settlement Rate
in effect at the opening of business on the day following the day upon which
such subdivision or split becomes effective shall be proportionately
increased, and, conversely, in case outstanding shares of Common Stock shall
each be combined into a smaller number of shares of Common Stock, the
Settlement Rate in effect at the opening of business on the day following the
day upon which such combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may be, to become effective
immediately after the opening of business on the day following the day upon
which such subdivision, split or combination becomes effective.
(d) 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 (b) of this Section, any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in paragraph
(a) of this Section), the Settlement Rate shall be adjusted so that the same
shall equal the rate determined by dividing the Settlement Rate in effect
immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the Current Market Price per share of
the Common Stock on the date fixed for such determination less the then fair
market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution filed with the Agent)
of the portion of the assets or evidences of indebtedness so distributed
applicable to one share of Common Stock and the denominator shall 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 (d) is applicable, paragraph
(b) of this section shall not be applicable.
(e) In case the Company shall by dividend or otherwise, distribute
to all holders of its Common Stock cash excluding any quarterly cash dividend
on the Common Stock to the extent that the aggregate cash dividend per share
of Common Stock in any quarter does not exceed the greater of (x) the
amount per share of Common Stock of the next preceding quarterly cash
dividend on the Common Stock to the extent that such preceding quarterly
dividend did not require an adjustment of the conversion price pursuant to
this clause (as adjusted to reflect subdivisions or combinations of the
Common Stock), and (y) 3.75% of the average of the last reported sales
price of the Common Stock during the ten consecutive Trading Days
immediately prior to the date of declaration of such dividend, and
excluding any dividend or distribution in connection with the liquidation,
dissolution or winding up of the Company (if an adjustment is required to
be made as set forth in this paragraph (e) as a result of a distribution,
(i) that is a quarterly dividend, such adjustment would be based upon the
amount by which such distribution exceeds the amount of the quarterly cash
dividend permitted to be excluded pursuant to this paragraph (e) and (ii)
that is not a quarterly dividend, such adjustment would be based upon the
full amount of the distribution).
(f) In case of a tender or exchange offer made by a person other
than the Company or any subsidiary of the Company for an amount which
increases the offeror's ownership of Common Stock of the Company to more than
25% of the Common Stock outstanding and shall involve the payment by such
Person of consideration per share of Common Stock having a fair market value
(as determined by the Board of Directors of the Company, whose determination
shall be conclusive, and described in a Board Resolution) at the last time
(the "Expiration Time") tenders or exchanges may be made pursuant to such
tender or exchange offer (as it shall have been amended) that exceeds the
exchange of the daily closing prices of the Common Stock on the NYSE on the
three Trading Days next succeeding the Expiration Time, and in which, as of
the Expiration Time, the Board of Directors of the Company is recommending
acceptance of the offer, the Settlement Rate shall be reduced so that the
same shall equal the price determined by dividing the Settlement Rate in
effect immediately prior to the Expiration Time by a fraction of which the
numerator shall be the number of shares of Common Stock of the Company
outstanding (including any tendered or exchanged shares) on the Expiration
Time multiplied by the exchange of the daily closing prices of the Common
Stock on the NYSE on the three Trading Days next succeeding the Expiration
Time and the denominator shall be the sum of (x) the fair market value
(determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the
terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of shares of Common Stock of the
Company outstanding (less any Purchased Shares) on the Expiration Time and
the exchange of the daily closing prices of the Common Stock on the NYSE on
the three Trading Days next succeeding the Expiration Time, such reduction
to become effective immediately prior to the opening of business on the day
following the Expiration Time. In the event that such Person is obligated
to purchase shares pursuant to any such tender or exchange offer, but such
Person is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Settlement Rate shall
again be adjusted to be the Settlement Rate which would then be in effect
if such tender or exchange offer had not been made. Notwithstanding the
foregoing, the adjustment described in this Section 5.06(f) shall not be
made if, as of the Expiration Time, the offering documents with respect to
such offer disclose a plan or intention to cause the Company to engage in a
consolidation or merger of the Company or a sale of all or substantially
all of the assets of the Company.
(g) The reclassification of Common Stock into securities including
securities other than Common Stock 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 (d) of this Section), and (ii) a subdivision, split
or combination, as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and the effective
date of such reclassification shall be deemed to be "the day upon which such
subdivision or split becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day upon which
such subdivision, split or combination becomes effective" within the meaning
of paragraph (c) of this Section).
(h) The "Current Market Price" per share of Common Stock on any
date of determination means the average of the daily closing prices on the
NYSE for the five consecutive Trading Days ending on and including such
date of determination; provided, however, that if the closing price of the
Common Stock on the NYSE on the Trading Day next following such five-day
period (the "next-day closing price") is less than 95% of said average
closing price, then the Current Market Price per share of Common Stock on
such date of determination will be the next-day closing price; and
provided, further, that if any adjustment of the Settlement Rate becomes
effective as of any date during the period beginning on the first day of
such five-day period and ending on the date on which Securities are to be
accelerated, then the Current Market Price as determined pursuant to the
foregoing will be appropriately adjusted to reflect such adjustment. A
"Trading Day" means a day on which the Common Stock (i) 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 (ii) 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.
(i) All adjustments to the Settlement Rate shall be calculated to
the nearest 1/100th of a share of Common Stock (or if there is not a nearest
5/1000th of a share to the next lower 1/100th 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.
(j) 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.
Section 5.07. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided,
the Company shall:
(i) forthwith compute the adjusted Settlement Rate in
accordance with Section 5.06 and prepare and transmit to the Agent an
Officers' Certificate setting forth the Settlement Rate, the method of
calculation thereof in reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an
event that permits or requires an adjustment to the Settlement Rate
pursuant to Section 5.06 (or if the Company is not aware of such
occurrence, as soon as practicable after becoming so aware), provide a
written notice to the Holders and the Agent of the Securities of the
occurrence of such event and a statement in reasonable detail setting forth
the method by which the adjustment to the Settlement Rate was determined
and setting forth the adjusted Settlement Rate.
(b) The Agent shall not at any time be under any duty or
responsibility to any holder of Securities to determine whether any facts
exist which may require any adjustment of the Settlement Rate, or with respect
to the nature or extent or calculation of any such adjustment when made, or
with respect to the method employed in making the same. The Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property, which may at the
time be issued or delivered with respect to any Purchase Contract; and the
Agent makes no representation with respect thereto. The Agent shall not be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock pursuant to a Purchase Contract or to comply with any
of the duties, responsibilities or covenants of the Company contained in this
Article.
Section 5.08. Acceleration; Notice.
(a) Unless a Mandatory Acceleration, a Bankruptcy Event or Sale of
Assets occurs prior to the Final Settlement Date, the Company shall have the
right to accelerate, in whole or in part, the outstanding Securities (a
"Company Acceleration") (subject to the notice provisions set forth in this
Section). The Company may not exercise its right to accelerate the Securities
unless the Current Market Price determined as of the second Business Day
immediately preceding the Notice Date is equal to or exceeds the Company
Acceleration Price applicable to such Notice Date. Upon the effective date of
such acceleration ( a "Company Acceleration Date"), the Company shall deliver
to the Agent for the benefit of the Holders thereof in exchange for each such
Security accelerated, (i) a number of fully paid and non-assessable shares of
Common Stock determined by dividing the Company Acceleration Price in effect
on the date established for acceleration by the Current Market Price of the
Common Stock determined as of the second Business Day immediately preceding
the Notice Date and (ii) an amount in cash equal to all accrued and unpaid
Contract Fees and Deferred Contract Fees, if any, on such Security to and
including such Company Acceleration Date (and Contract Fees and Deferred
Contract Fees, if any, shall cease to accrue on each Security accelerated as
of such date).
(b) Immediately prior to the effectiveness of a merger or
consolidation of, or a statutory share exchange involving, the Company that
results in the conversion or exchange of the Common Stock into, or the right
to receive, other securities or other property (whether of the Company or any
other entity) (any such merger, consolidation or share exchange being referred
to herein as a "Merger or Consolidation"), each outstanding Security shall
automatically convert into (a "Mandatory Acceleration"), unless sooner
accelerated:
(i) fully paid and non-assessable shares of Common Stock at
the Settlement Rate in effect on the effective time on the date of any Merger
or Consolidation (the "Mandatory Acceleration Date"); plus
(ii) the right to receive an amount in cash equal to all
accrued and unpaid Contract Fees and Deferred Contract Fees, if any (except as
provided in herein) on such Securities to and including the Mandatory
Acceleration Date (and Contract Fees and Deferred Contract Fees shall cease to
accrue as of the Mandatory Acceleration Date); plus
(iii) the right to receive an amount in cash initially equal
to $____, declining by $________ on each day following [date] (computed on
the basis of a 360-day year of twelve 30-day months) to $_____ on [date]
and equal to zero thereafter, in each case determined with reference to the
Mandatory Acceleration Date.
At the option of the Company, it may deliver on the Mandatory
Acceleration Date in lieu of some or all of the cash consideration described
in clause (iii) above, fully paid and non-assessable shares of Common Stock.
The number of shares of Common Stock to be delivered in lieu of any cash
consideration described in such clause (iii) shall be determined by
dividing the amount of cash consideration that the Corporation has elected
to deliver in Common Stock by the Current Market Price of the Common Stock
determined as of the second Business Date immediately preceding the Notice
Date.
(c) The Company will provide notice of any Acceleration of
Securities (including any potential acceleration upon the effectiveness of a
Merger or Consolidation) to holders of record of the Securities to be
accelerated and the Agent not less than 30 nor more than 60 days prior to the
date fixed for such Acceleration, as the case may be; provided, however, that
if the effectiveness of a Merger or Consolidation makes it impracticable to
provide at least 30 days' notice, the Company shall provide such notice as
soon as practicable prior to such effectiveness. Such notice shall be
provided by mailing notice of such Acceleration first class postage prepaid,
to each holder of record of the Securities to be accelerated, at such holder's
address as it appears on the Security Register of the Company, and by
publishing notice thereof in The Wall Street Journal or The New York Times or,
if neither such newspaper is then being published, any other daily newspaper
of national circulation (each, an "Authorized Newspaper"). The "Notice Date"
with respect to any notice given by the Company in connection with an
Acceleration of the Securities means the earlier of the commencement of the
mailing of such notice to Holders of Securities or the date such notice is
first published in accordance with the preceding sentence. Each such
mailed or published notice shall state, as appropriate, the following:
(A) the Acceleration Date;
(B) the number of Securities to be accelerated and, if
less than all the Securities held by any Holder are to
be accelerated, the number of such Securities to be
accelerated;
(C) the Mandatory Acceleration Price or the Company
Acceleration Price, as applicable, and the Current
Market Price to be used to calculate the number of
shares of Common Stock deliverable upon acceleration;
(D) whether the Company is exercising any option to
deliver shares of Common Stock in lieu of any cash (in
the case of a Mandatory Acceleration) and the Current
Market Price to be used to calculate the number of such
shares of Common Stock;
(E) the place or places where certificates for such
Securities are to be surrendered for acceleration;
(F) the amount of accrued and unpaid Contract Fees
(and Deferred Contract Fees, if any) payable per
Security to be accelerated to and including such
Acceleration Date, and that Contract Fees and Deferred
Contract Fees on Securities to be accelerated will cease
to accrue on such Acceleration Date.
(d) The Company's obligation to deliver shares of Common Stock
and provide funds in accordance with this Section shall be deemed fulfilled
if, on or before an Acceleration Date, the Company shall deposit, with a bank
or trust company having an office or agency and doing business in the Borough
of Manhattan in The City of New York and having a capital and surplus of at
least $50,000,000 such number of shares of Common Stock and funds as are
required to be delivered by the Company pursuant to this section upon the
occurrence of the related Acceleration (including the payment of fractional
share amounts), together with funds sufficient to pay all accrued and unpaid
Contract Fees and Deferred Contract Fees, if any, to be accelerated as
required by this Section, in trust for the account of the Holders of the
Securities to be accelerated (and so as to be and continue to be available
therefor), with irrevocable written instructions and authority to such bank or
trust company that such shares and funds be delivered upon at the end of six
years after such Acceleration Date shall be paid by such bank or trust company
to the Company, after which the Holder or Holders of such Securities so called
for Acceleration shall look only to the Company for delivery of such shares of
Common Stock or Funds.
Each holder of Securities to be accelerated shall surrender the
certificates evidencing such shares to the Company at the place designated in
the notice of such Acceleration and shall thereupon be entitled to receive
certificates evidencing shares of Common Stock, and cash, if any, payable
pursuant to this Section, following such surrender and following the date of
such Acceleration. In case fewer than all the Securities are accelerated, a
new certificate shall be issued at the expense of the Company representing the
unaccelerated Securities.
Section 5.09. Bankruptcy Event or Sale of Assets; Notice.
The Purchase Contracts and the obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
of the Holders to receive and the obligation of the Company to pay any
Contract Fees, shall immediately and automatically terminate, without the
necessity of any notice or action by any Holder, the Agent or the Company, if,
on or prior to the Final Settlement Date, a Bankruptcy Event or Sale of Assets
shall have occurred, provided that, in the event of a Sale of Assets, the
Company will pay all accrued and unpaid Contract Fees and Deferred Contract
Fees, if any, to Holders on the tenth Business Day following the Sale of
Assets Date. Upon and after the occurrence of a Bankruptcy Event or Sale of
Assets, the Securities shall thereafter represent the right to receive the
Treasury Notes forming a part of such Securities in accordance with the
provisions of Section 4.02 and the Pledge Agreement. Upon the occurrence of a
Bankruptcy Event or Sale of Assets, the Company shall promptly but in no event
after two Business Days thereafter give written notice to the Agent, the
Collateral Agent and to the Holders, at their addresses as they appear in the
Security Register.
Section 5.10. Holder's Early Settlement.
(a) Subject to and upon compliance with the provisions of this
Section 5.10, at the option of the Holder thereof, any Purchase Contracts
underlying Securities having an aggregate Stated Amount equal to [$__,000] or
an integral multiple thereof may be settled early ("Holder's Early
Settlement") as provided herein. In order to exercise the right to effect
Holder's Early Settlement, the Holder of the Security Certificate shall
deliver such Security Certificate to the Agent at the Corporate Trust Office
duly endorsed for transfer to the Company or in blank with the form of
Election to Settle Early on the reverse thereof duly completed and accompanied
by payment in the form of a certified or cashier's check payable to the order
of the Company in immediately available funds in a U.S. dollar amount (the
"Holder's Early Settlement Amount") equal to the product of (A) the Stated
Amount times (B) the number of Purchase Contracts with respect to which the
Holder has elected to effect Holder's Early Settlement. If such delivery is
made with respect to any Securities during the period from the close of
business on any Record Date next preceding any Payment Date to the opening of
business on such Payment Date, the amount equal to the sum of (x) the Contract
Fees and Deferred Contract Fees, if any, payable on such Payment Date with
respect to such Purchase Contracts plus (y) the interest on the related
Treasury Notes payable on such Payment Date. If the foregoing requirements
are first satisfied with respect to Purchase Contracts underlying any
Securities at or prior to 5:00 p.m., New York City time, on a Business Day,
such day shall be the "Holder's Early Settlement Date" with respect to such
Securities and if such requirements are first satisfied after 5:00 p.m.,
New York City time, on a Business Day or on a day that is not a Business
Day, the "Holder's Early Settlement Date" with respect to such Securities
shall be the next succeeding Business Day.
(b) The Company shall cause the Treasury Notes deliverable upon a
Holder's Early Settlement to be released from the Pledge by the Collateral
Agent and transferred to the Agent, for delivery to the Holder thereof or its
designee, no later than the third Business Day after the applicable Holder's
Early Settlement Date.
(c) Upon Holder's Early Settlement and subject to receipt from the
Collateral Agent of the Treasury Notes, the Agent shall, in accordance with
the written instructions provided by the Holder thereof on the form (or a
writing substantially similar to the form) of Election to Settle Early on
the reverse of the Security Certificate evidencing the related Securities,
transfer the Treasury Notes forming a part of such Securities to the
applicable Holder.
(d) Upon a Holder's Early Settlement, the Company shall issue and
deliver to the Agent Prepaid Securities at the Corporate Trust Office a
certificate or certificates equal to the aggregate Stated Amount of the
Securities subject to such Holder's Early Settlement, and the Agent shall
transfer such Prepaid Securities to the Holders no later than the third
Business Day after the applicable Holder's Early Settlement Date.
(e) In the event that a Holder's Early Settlement is effected with
respect to less than all the Securities evidenced by a Security Certificate
upon such Holder's Early Settlement, the Company shall execute and the Agent
shall authenticate, countersign and deliver to the Holder thereof, at the
expense of the Company, a Security Certificate evidencing the Securities as to
which Holder's Early Settlement was not effected.
Section 5.11. No Fractional Shares.
No fractional shares or scrip representing fractional shares of
Common Stock shall be issued or delivered upon settlement on the Final
Settlement Date or upon earlier Acceleration or with respect to the payment of
any premium (if any) on a Mandatory Acceleration (if the Company elects to pay
such amounts in shares of Common Stock in lieu of cash), on the Final
Settlement Date or earlier Acceleration Date. If Security Certificates
evidencing more than one Purchase Contract shall be surrendered for settlement
at one time by the same Holder, the number of full shares of Common Stock
which shall be delivered upon settlement shall be computed on the basis of the
aggregate number of Purchase Contracts evidenced by the Security Certificates
so surrendered. Instead of any fractional share of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the
Final Settlement Date or an earlier Acceleration Date or with respect to the
payment of any premium (if any) on a Mandatory Acceleration (if the Company
elects to pay such amounts in shares of Common Stock in lieu of cash), the
Company, through the Agent, shall make a cash payment in respect of such
fractional interest in an amount equal to the value of such fractional shares
at the Closing Price per share on the Business Day immediately preceding the
Final Settlement Date or the related earlier Acceleration Date, respectively.
The Company shall provide the Agent from time to time with sufficient funds to
permit the Agent to make all cash payments required by this section 5.11 in a
timely manner.
Section 5.12. Charges and Taxes.
The Company will pay all stock transfer and similar taxes
attributable to the initial issuance and delivery of the shares of Common
Stock pursuant to the Purchase Contracts and in payment of any premium (in the
case of the Company's election to pay such premium in Common Stock upon a
Mandatory Acceleration); provided, however, that the Company shall not be
required to pay any such tax or taxes which may be payable in respect of any
exchange of or substitution for a Security Certificate evidencing a Purchase
Contract or any issuance of a share of Common Stock in a name other than that
of the registered Holder of a Security Certificate surrendered in respect of
the Purchase Contracts evidenced thereby, other than in the name of the Agent,
as custodian for such Holder, and the Company shall not be required to issue
or deliver such share certificates or Security Certificates unless or until
the Person or Persons requesting the transfer or issuance thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
ARTICLE 6
Remedies
Section 6.01. Unconditional Right of Holders to Receive Contract
Fees and Purchase Common Stock.
The Holder of any Security shall have the right, which is
absolute and unconditional (subject to the right of the Company to defer
payment thereof pursuant to Section 5.03), to receive payment of each
installment of the Contract Fees with respect to the Purchase Contract
constituting a part of such Security on the respective Payment Date for such
Security and to purchase Common Stock pursuant to the terms of such Purchase
Contract and, in each such case, to institute suit for the enforcement of any
such payment and right to purchase Common Stock, and such rights shall not be
impaired without the consent of such Holder.
Section 6.02. Restoration of Rights and Remedies.
If any Holder of Securities has instituted any proceeding to
enforce any right or remedy under this Agreement and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of such Holder shall continue as though no such proceeding had been
instituted.
Section 6.03. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement of
mutilated, destroyed, lost or stolen Security Certificates in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or
reserved to the Holders of Securities is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 6.04. 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 6.05. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of any
Security by his acceptance of the Security Certificate evidencing such
Security shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Agreement, or in any suit against the Agent for any action taken, suffered or
omitted by it as Agent, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided
that the provisions of this section shall not apply to any suit instituted by
the Company, to any suit instituted by the Agent, to any suit instituted by
any Holder of Securities, or group of Holders, holding in the aggregate
more than 10% of the Outstanding Securities, or to any suit instituted by
any Holder for the enforcement of the payment of the interest on any
Treasury Note or the Contract Fees are due on any Purchase Contract on or
after the respective Payment Date therefor constituting a part of the
Securities held by such Holder, or for enforcement of the right to purchase
shares of Common Stock under the Purchase Contracts constituting a part of
the Securities held by such Holder.
Section 6.06. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Agreement; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Agent or the Holders,
but will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE 7
The Agent
Section 7.01. Certain Duties and Responsibilities.
(a) (i) The Agent undertakes to perform, with respect to the
Securities, such duties and only such duties as are
specifically set forth in this Agreement and those duties
which relate to the Agent in the Pledge Agreement, and no
implied covenants or obligations shall be read into this
Agreement against the Agent; and
(ii) in the absence of bad faith or negligence on its part,
the Agent may, with respect to the Securities, conclusively
rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or
opinions furnished to the Agent and conforming to the
requirements of this Agreement, but in the case of any
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Agent, the
Agent shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Agreement (but need not confirm or investigate the accuracy
of mathematical calculations stated therein).
(iii) In case an Event of Default has occurred and is
continuing, the Agent shall exercise such of the rights and
powers vested in it by this Agreement, and use the same
degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(b) No provision of this Agreement shall be construed to relieve
the Agent from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(i) this subsection shall not be construed to limit the
effect of Subsection(a) of this Section;
(ii) the Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall
be proved that the Agent was negligent in ascertaining the
pertinent facts; and
(iii) no provision of this Agreement shall require the Agent
to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk 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 Agent shall be subject to the provisions of this
Section.
Section 7.02. Notice of Default.
Within 30 days after the occurrence of any default by the
Company hereunder, of which a Responsible Officer of the Agent has actual
knowledge, the Agent shall transmit by mail to all Holders of Securities, as
their names and addresses appear in the Security Register, notice of such
default hereunder, unless such default shall have been cured or waived.
Section 7.03. Certain Rights of Agent.
Subject to the provisions of Section 7.10:
(a) the Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate, Issuer Order
or Issuer Request, and any resolution of the Board of Directors of the
Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Agent (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate of the Company;
(d) the Agent may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Agent, in its discretion, may make reasonable further inquiry or
investigation into such facts or matters related to the issuance of the
Securities and the execution, delivery and performance of the Purchase
Contracts as it may see fit, and, if the Agent shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and promises of the Company, personally or by agent or attorney at the
sole cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation; and
(f) the Agent may execute any of its powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or an Affiliate and the Agent shall not be responsible for any
misconduct or negligence on the part of any agent or attorney or an
Affiliate appointed with due care by it hereunder.
(g) the Agent shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement at the request or
direction of any of the Holders pursuant to this Agreement, unless such
Holders shall have offered to the Agent reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(h) the Agent shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement.
Section 7.04. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Security Certificates
shall be taken as the statements of the Company and the Agent assumes no
responsibility for their accuracy. The Agent makes no representations as to
the validity or sufficiency of either this Agreement or of the Securities, or
of the Pledge Agreement or the Pledge. The Agent shall not be accountable for
the use or application by the Company of the proceeds in respect of the
Purchase Contracts.
Section 7.05. May Hold Securities.
Any Security Registrar or any other agent of the Company, or
the Agent and its Affiliates, in their individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with the
Company, the Collateral Agent or any other Person with the same rights it
would have if it were not Security Registrar or such other agent, or the
Agent.
Section 7.06. Money Held in Custody.
Money held by the Agent in custody hereunder need not be
segregated from the other funds except to the extent required by law. The
Agent shall be under no obligation to invest or pay interest on any money
received by it hereunder except pursuant to the provisions of Section 4.01 or
as otherwise agreed in writing with the Company.
Section 7.07. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Agent from time to time reasonable
compensation for all services rendered by it hereunder as the Company and
the Agent shall, from time to time, agree in writing (which compensation
shall be limited by any applicable provisions of law);
(b) except as otherwise expressly provided herein, to
reimburse the Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in accordance with
any provision of this Agreement (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or
bad faith; and
(c) to indemnify the Agent and any predecessor Agent for, and
to hold each of them harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of its duties hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
(d) The provisions of this Section shall survive the
termination of this Agreement.
Section 7.08. Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having (or being a member of a
bank holding company having) a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal or State
authority and having a Corporate Trust Office in the Borough of Manhattan, The
City of New York, if there be such a corporation in the Borough of Manhattan,
The City of New York qualified and eligible under this Article and willing to
act on reasonable terms. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 7.09. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 7.10.
(b) The Agent may resign at any time by giving written notice
thereof to the Company 60 days prior to the effective date of such
resignation. If the instrument of acceptance by a successor Agent required by
Section 7.10 shall not have been delivered to the Agent within 30 days after
the giving of such notice of resignation, the resigning Agent may petition any
court of competent jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of
a majority in number of the Outstanding Securities delivered to the Agent
and the Company.
(d) if at any time
(i) the Agent fails to comply with Section 310(b) of the
TIA, as if the Agent were an indenture trustee under an
indenture qualified under the TIA, after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(ii) the Agent shall cease to be eligible under Section 7.08
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(iii) the Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent or
of its property shall be appointed or any public officer shall
take charge or control of the Agent or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Agent, or (ii) any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Agent and the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Agent and
shall comply with the applicable requirements of Section 7.10. If no successor
Agent shall have been so appointed by the Company and accepted appointment in
the manner required by Section 7.10, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to
give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities as their names
and addresses appear in the Security Register. Each notice shall include the
name of the successor Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Agent,
every such successor Agent so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Agent an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Agent
shall become effective and such successor Agent, without any further act, deed
or conveyance, shall become vested with all the rights, powers, agencies and
duties of the retiring Agent; but, on the request of the Company or the
successor Agent, such retiring Agent shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Agent all the
rights, powers and trusts of the retiring Agent and shall duly assign,
transfer and deliver to such successor Agent all property and money held by
such retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the
time of such acceptance such successor Agent shall be qualified and eligible
under this Article.
Section 7.11. Preservation of Information; Communications to
Holders.
(a) The Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by the
Agent in its capacity as Security Registrar.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Agent, and furnish to the Agent reasonable proof that
each such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their
rights under this Agreement or under the Securities and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Agent shall, within five Business Days after the receipt
of such application, afford such applicants access to the information
preserved at the time by the Agent in accordance with Section [ ].
(c) Every Holder of Securities, by receiving and holding the
Security Certificates evidencing the same, agrees with the Company and the
Agent that none of the Company, the Agent nor any agent of any of them shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section 7.11(b),
regardless of the source from which such information was derived.
Section 7.12. No Obligations of Agent.
Except to the extent otherwise provided in this Agreement, the
Agent assumes no obligations and shall not be subject to any liability under
this Agreement, the Pledge Agreement or any Purchase Contract in respect of
the obligations of the Holder of any Security thereunder. The Company
agrees, and each Holder of a Security Certificate, by his acceptance
thereof, shall be deemed to have agreed, that the Agent's execution of the
Security Certificates on behalf of the Holders shall be solely as agent and
attorney-in-fact for the Holders, and that the Agent shall have no
obligation to perform such Purchase Contracts on behalf of the Holders,
except to the extent expressly provided in Article 5 hereof.
Section 7.13. Tax Compliance.
(a) The Agent, on its own behalf and on behalf of the Company,
will comply with all applicable certification, information reporting and
withholding (including "backup" withholding) requirements imposed by
applicable tax laws, regulations or administrative practice with respect to
(i) any payments made with respect to the Securities or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Securities. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of
all amounts required to be withheld to the appropriate taxing authority or
its designated agent.
(b) The Agent shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 7.01(a)(ii) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available, on
written request, to the Company or to its authorized representative within a
reasonable period of time after receipt of such request.
ARTICLE 8
Supplemental Agreements
Section 8.01. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Agent,
at any time and from time to time, may enter into one or more agreements
supplemental hereto, in form satisfactory to the Company and the Agent, for
any of the following purposes:
(a) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the obligations of the Company
herein and in the Security Certificates; or
(b) to add covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Company;
or
(c) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent or Collateral Agent; or
(d) except as provided for in Section 5.06, to cure any ambiguity,
to correct or supplement any provisions herein which may be inconsistent with
any other provisions herein, or to make any other provisions with respect to
such matters or questions arising under this Agreement, provided such action
shall not adversely affect the interests of the Holders.
Section 8.02. Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% of the
Outstanding Securities, by Act of said Holders delivered to the Company and
the Agent, the Company when authorized by a Board Resolution, and the Agent
may enter into an agreement or agreements supplemental hereto for the
purpose of modifying in any manner the terms of the Securities, or the
provisions of this Agreement or the Pledge Agreement or the rights of the
Holders in respect of the Securities; provided, however, that no such
supplemental agreement shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(a) change any Payment Date;
(b) change the amount or type of Treasury Notes underlying a
Security, impair the right of the Holder of any Security to receive interest
payments on the underlying Treasury Notes or otherwise adversely affect the
Holder's rights in or to such Treasury Notes;
(c) reduce any Contract Fees or any Deferred Contract Fees, or
change any place where, or the coin or currency in which, any Contract Fees is
payable;
(d) impair the right to institute suit for the enforcement of any
Purchase Contract;
(e) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the Final
Settlement Date or otherwise adversely affect the Holder's rights under any
Purchase Contract; or
(f) reduce the percentage of the Outstanding Securities the
consent of whose Holders is required for any such supplemental agreement.
It shall not be necessary for any Act of Holders under this
section to approve the particular form of any proposed supplemental agreement,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 8.03. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by,
any supplemental agreement permitted by this Article or the modifications
thereby of the agencies created by this Agreement, the Agent shall be entitled
to receive and (subject to Section 7.10) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
agreement is authorized or permitted by this Agreement. The Agent may, but
shall not be obligated to, enter into any such supplemental agreement which
affects the Agent's own rights, duties or immunities under this Agreement or
otherwise.
Section 8.04. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this
Article, this Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Agreement for all purposes;
and every Holder of Security Certificates theretofore or thereafter
authenticated, executed on behalf of the Holders and delivered hereunder shall
be bound thereby.
Section 8.05. Reference to Supplemental Agreements.
Security Certificates authenticated, executed on behalf of the
Holders and delivered after the execution of any supplemental agreement
pursuant to this Article may, and shall if required by the Agent, bear a
notation in form approved by the Agent as to any matter provided for in such
supplemental agreement. If the Company shall so determine, new Security
Certificates so modified as to conform, in the opinion of the Agent and the
Company, to any such supplemental agreement may be prepared and executed by
the Company and authenticated, executed on behalf of the Holders and delivered
by the Agent in exchange for Outstanding Security Certificates.
ARTICLE 9
Covenants
Section 9.01. Performance under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders
from time to time of the Securities that it will duly and punctually perform
its obligations under the Purchase Contracts in accordance with the terms of
the Purchase Contracts and this Agreement.
Section 9.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City
of New York an office or agency where Security Certificates may be
presented or surrendered for acquisition of shares of Common Stock upon
Final Settlement or earlier Acceleration and for transfer of Treasury Notes
upon occurrence of a Bankruptcy Event or Sale of Assets, where Security
Certificates may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company in respect of the
Securities and this Agreement may be served. The Company will give prompt
written notice to the Agent of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Agent with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office, and the
Company hereby appoints the Agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where Security Certificates may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in the Borough of Manhattan, The City of New York for such
purposes. The Company will give prompt written notice to the Agent of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby designates as the place of payment for
the Securities the Corporate Trust Office and appoints the Agent at its
Corporate Trust Office as paying agent in such city.
Section 9.03. Company to Reserve Common Stock.
The Company shall at all times prior to the Final Settlement
Date or an applicable Acceleration Date reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock the full
number of shares of Common Stock issuable (x) against tender of payment in
respect of all Purchase Contracts constituting a part of the Securities
evidenced by Outstanding Security Certificates and (y) in payment of Deferred
Contract Fees, if any, owed by the Company to the Holders.
Section 9.04. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may
be issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities and in payment of any
Deferred Contract Fees will, upon issuance, be duly authorized, validly
issued, fully paid and nonassessable.
Section 9.05. Statements of Officers of the Company as to
Default.
The Company will deliver to the Agent, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions hereof, and if the Company shall
be in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
SUNAMERICA INC.
Attested by:
By:____________________________________
_________________________________ Name:
[Title] Title:
THE BANK OF NEW YORK
Attested by:
By:____________________________________
_________________________________ Name:
[Title] Title:
EXHIBIT A
SUNAMERICA INC.
% PREMIUM EQUITY REDEMPTION
CUMULATIVE SECURITY UNITS
(STATED AMOUNT $ PER SECURITY)
No. Securities
This Security Certificate certifies that is
the registered Holder of the number of Securities set forth above. Each
Security represents (i) ownership by the Holder of % United States
Treasury Notes due October 31, 1999 ("Treasury Notes") with a principal amount
equal to the Stated Amount, subject to the Pledge of such Treasury Notes by
such Holder pursuant to the Pledge Agreement, and (ii) the rights and
obligations of the Holder under one Purchase Contract with SunAmerica Inc., a
Maryland corporation (the "Company"). The Treasury Notes represented by this
Security Certificate were acquired by the Underwriters on behalf of the
Company with the proceeds of the offering of this Security Certificate and
other funds provided by the Company and are being conveyed to the Holder of
this Security Certificate and pledged pursuant to the Pledge Agreement
simultaneously therewith.
Pursuant to the Pledge Agreement, the Treasury Notes
constituting part of each Security evidenced hereby have been pledged to the
Collateral Agent to secure the obligations of the Holder under the Purchase
Contract comprising a portion of such Security.
The Pledge Agreement provides that all payments of principal
of, or interest on, any Treasury Notes comprising a portion of the Securities
received by the Collateral Agent shall be paid by the Collateral Agent by wire
transfer in same day funds no later than 1:00 p.m., New York City time, on the
Business Day such payment is received by the Collateral Agent (provided that
in the event such payment is received by the Collateral Agent on a day that is
not a Business Day or after 1:00 p.m., New York City time, on a Business Day,
then such payment shall be made no later than 10:00 a.m., New York City time,
on the next succeeding Business Day) (i) in the case of (A) interest payments
and (B) any principal payments with respect to any Treasury Notes that have
been released from the Pledge pursuant to the Pledge Agreement, to the Agent
to the account designated by it for such purpose and (ii) in the case of
principal payments on any Pledged Treasury Notes (as defined in the Pledge
Agreement), at the direction of the Agent on behalf of the Holders, to the
Company, in full satisfaction of the respective obligations of the Holders of
the Securities of which such Pledged Treasury Securities are a part under the
Purchase Contracts forming a part of such Securities. Interest on any Treasury
Note forming part of a Security evidenced hereby which is paid on any ________
or __________, commencing _____________1997 (a "Payment Date"), shall, subject
to receipt thereof by the Agent from the Collateral Agent, be paid to the
Person in whose name this Security Certificate (or a Predecessor Security
Certificate) is registered at the close of business on the Record Date next
preceding such Payment Date. The Company shall pay the accrued interest on
the Treasuary Notes for the period from November 1, 1996 to November 6, 1996
(the "Holder's Accrued Interest"). The Holder shall receive the Holder's
Accrued Interest as part of the interest payment on the Treasury Notes upon
the first Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of
this Security Certificate to purchase, and the Company to sell, on October 31,
1999 (the "Final Settlement Date"), at a price equal to $ (the "Stated
Amount"), a number of shares of Common Stock, par value $1.00 per share
("Common Stock"), of the Company, equal to the Settlement Rate on the Final
Settlement Date, unless on or prior to the Final Settlement Date, there shall
have occurred a Bankruptcy Event, Sales of Assets, an Acceleration or a
Holder's Early Settlement with respect to the Security of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement and
more fully described on the reverse hereof. The purchase price for the shares
of Common Stock purchased pursuant to each Purchase Contract evidenced hereby,
if not paid earlier pursuant to the terms of the Purchase Contract Agreement,
shall be paid on the Final Settlement Date by application of payment received
in respect of the principal of the Treasury Notes pledged to secure the
obligations under such Purchase Contract of the Holder of the Security of
which such Purchase Contract is a part.
The Company shall pay or accrue, on each Payment Date, in
respect of each Purchase Contract forming part of a Security evidenced hereby
an amount (the "Contract Fees") equal to % per annum of the Stated Amount,
computed on the basis of the actual number of days elapsed in a year of 365 or
366 days, as the case may be, subject to deferral at the option of the Company
as provided in the Purchase Contract Agreement and more fully described on the
reverse hereof; except that the Contract Fees payable on the first Payment
Date will be adjusted so that the Contract Fees payable on such date will be
the equivalent of % of the Stated Amount per annum accruing from the
date of issuance of the Securities to April 30, 1997. Such Contract Fees shall
be payable to the Person in whose name this Security Certificate (or a
Predecessor Security Certificate) is registered at the close of business on
the Record Date next preceding such Payment Date.
Interest on the Treasury Notes and the Contract Fees will be
payable at the office of the Agent in The City of New York or, at the option
of the Company, by check mailed to the address of the Person entitled thereto
as such address appears on the Security Register.
Reference is hereby made to the further provisions set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Agent by manual signature, this Security Certificate shall not
be entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
SUNAMERICA INC.
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
Attested:
___________________________________
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts evidenced hereby)
By: THE BANK OF NEW YORK,
not individually but solely as
Attorney-in-Fact of such Holder
By:___________________________________
Dated:
This is one of the Securities Certificates referred to in the within
mentioned Purchase Contract Agreement.
THE BANK OF NEW YORK
as Agent
By:___________________________________
(Form of Reverse of Security Certificate]
Each Purchase Contract evidenced hereby is governed by a
Purchase Contract Agreement, dated as of October __, 1996 (the "Purchase
Contract Agreement"), between the Company and The Bank of New York, as
Purchase Contract Agent (herein called the "Agent"), to which Purchase
Contract Agreement and supplemental agreements thereto reference is hereby
made for a description of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Agent, the Company,
and the Holders and of the terms upon which the Security Certificates are,
and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of
this Security Certificate to purchase, and the Company to sell, on the Final
Settlement Date at a price equal to the Stated Amount, a number of shares of
Common Stock of the Company equal to the Settlement Rate on the Final
Settlement Date, unless, on or prior to the Final Settlement Date, there shall
have occurred a Bankruptcy Event, Sale of Assets, an Acceleration or a
Holder's Early Settlement with respect to the Security of which such Purchase
Contract is a part. The "Settlement Rate" is initially one share of Common
Stock, in each case subject to adjustment as provided in the Purchase Contract
Agreement. No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, as provided in the Purchase Contract
Agreement.
The purchase price for the shares of Common Stock purchased
pursuant to each Purchase Contract shall be paid by application of payments
received by the Company on the Final Settlement Date, an earlier Acceleration
Date or Holder's Early Settlement from the Collateral Agent at the direction
of the Agent on behalf of the Holders pursuant to the Pledge Agreement in
respect of the principal of the Treasury Notes pledged to secure the
obligations of the relevant Holder under such Purchase Contract subject to the
provisions of the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of
Common Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment in full of the
aggregate purchase price for the shares of Common Stock to be purchased
thereunder in the manner set forth in the Purchase Contract Agreement.
Subject to the next succeeding paragraph, the Company shall pay
or accrue, on each Payment Date, the Contract Fees payable in respect of each
Purchase Contract to the Person in whose name the Security Certificate
evidencing such Purchase Contract is registered at the close of business on
the Record Date next preceding such Payment Date. Contract Fees will be
payable at the office of the Agent in The City of New York or, at the option
of the Company, by check mailed to the address of the Person entitled thereto
at such address as it appears on the Security Register.
The Company shall have the right, at any time prior to the
Final Settlement Date, Sale of Assets or an Acceleration Date applicable to a
Holder's Securities, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date, but only if the Company shall give the
Holders and the Agent written notice of its election to defer such payment
(specifying the amount to be deferred) as provided in the Purchase Contract
Agreement. Any Contract Fees so deferred shall bear additional Contract Fees
thereon at the rate of _____% per annum (computed on the basis of the actual
number of days elapsed in a year of 365 or 366 days, as the case may be),
compounding on each succeeding Payment Date, until paid in full (such deferred
installments of Contract Fees together with the additional Contract Fees
accrued thereon, are referred to herein as the "Deferred Contract Fees").
Deferred Contract Fees shall be due on the next succeeding Payment Date except
to the extent that payment is deferred pursuant to the Purchase Contract
Agreement. No Contract Fees may be deferred to a date that is after the Final
Settlement Date, a Bankruptcy Event Date or a Sale of Assets Date or an
applicable Acceleration Date.
In the event the Company elects to defer the payment of
Contract Fees on the Purchase Contract until the Final Settlement Date, a Sale
of Assets Date or an Acceleration Date, the Company shall make a cash payment
equal to the aggregate amount of Deferred Contract Fees payable to a Holder.
In the event the Company exercises its option to defer the
payment of Contract Fees, then, until the Deferred Contract Fees have been
paid in full, the Company shall not declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchase or acquisitions of shares of Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit
plans now or hereafter in effect or the satisfaction by the Company of its
obligations pursuant to any contract or security now or hereafter outstanding
requiring the Company to purchase shares of Common Stock, (ii) as a result of
a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock, (iii) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged (iv) the payment of accrued dividends (and cash in lieu
of fractional shares) upon the conversion of any shares of preferred stock of
the Company as may be outstanding from time to time, in accordance with the
terms of such stock or (v) dividends on its capital stock paid in shares of
capital stock) or make any guarantee payments with respect to the foregoing.
The Purchase Contracts and the obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
of the Holders to receive and the obligation of the Company to pay any
Contract Fees or any Deferred Contract Fees, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Agent or the Company, if, on or prior to the Final Settlement Date
or an applicable Acceleration Date, a Bankruptcy Event shall have occurred.
Upon the occurrence of a Bankruptcy Event or Sale of Assets, the Company shall
promptly but in no event after two business days thereafter give written
notice to the Agent, the Collateral Agent and to the Holders, at their
addresses as they appear in the Security Register. Upon and after the
occurrence of a Bankruptcy Event or Sale of Assets, the Collateral Agent shall
release the Treasury Notes from the Pledge in accordance with the provisions
of the Pledge Agreement. The Securities shall thereafter represent the right
to receive the Treasury Notes forming a part of such Securities in accordance
with the provisions of the Purchase Contract Agreement and the Pledge
Agreement.
Unless a Mandatory Acceleration, a Bankruptcy Event or Sale of
Assets occurs prior to the Final Settlement Date, the Company shall have the
right to accelerate, in whole or in part, the outstanding Securities (a
"Company Acceleration") (subject to the notice provisions set forth in the
Purchase Contract Agreement). The Company may not exercise its right to
accelerate the Securities unless the Current Market Price determined as of the
second Business Day immediately preceding the Notice Date is equal to or
exceeds the Company Acceleration Price applicable to such Notice Date. Upon
the effective date of such acceleration ( a "Company Acceleration Date"), the
Company shall deliver to the Holders thereof in exchange for each such
Security accelerated, (i) a number of fully paid and non-assessable shares of
Common Stock determined by dividing the Company Acceleration Price in effect
on the date established for acceleration by the Current Market Price of the
Common Stock determined as of the second Business Day immediately preceding
the Notice Date and (ii) an amount in cash equal to all accrued and unpaid
Contract Fees and Deferred Contract Fees, if any, on such Security to and
including such Company Acceleration Date (and Contract Fees and Deferred
Contract Fees, if any, shall cease to accrue on each Security accelerated as
of such date).
Immediately prior to the effectiveness of a merger or
consolidation of, or a statutory share exchange involving, the Company that
results in the conversion or exchange of the Common Stock into, or the right
to receive, other securities or other property (whether of the Company or any
other entity) (any such merger, consolidation or share exchange being referred
to herein as a "Merger or Consolidation"), each outstanding Security shall
automatically convert into (a "Mandatory Acceleration"), unless sooner
accelerated:
(i) fully paid and non-assessable shares of Common Stock at
the Settlement Rate in effect on the effective time on the date of
any Merger or Consolidation (the "Mandatory Acceleration Date");
plus
(ii) the right to receive an amount in cash equal to all accrued
and unpaid Contract Fees and Deferred Contract Fees, if any
(except as provided in herein) on such Securities to and
including the Mandatory Acceleration Date (and Contract Fees
and Deferred Contract Fees shall cease to accrue as of the
Mandatory Acceleration Date); plus
(iii) the right to receive an amount in cash initially equal
to $____, declining by $________ on each day following [date]
(computed on the basis of a 360-day year of twelve 30-day
months) to $_____ on [date] and equal to zero thereafter, in
each case determined with reference to the Mandatory
Acceleration Date.
At the option of the Company, it may deliver on the Mandatory
Acceleration Date in lieu of some or all of the cash consideration
described in clauses (iii) above, fully paid and non-assessable shares of
Common Stock. The number of shares of Common Stock to be delivered in lieu
of any cash consideration described in such clauses (iii) shall be
determined by dividing the amount of cash consideration that the
Corporation has elected to deliver in Common Stock by the Current Market
Price of the Common Stock determined as of the second Business Date
immediately preceding the Notice Date. Notice shall be given for a
Mandatory Acceleration as set forth in the Purchase Contract Agreement.
Subject to and upon compliance with the provisions of the
Purchase Contract Agreement at the option of the Holder thereof, Purchase
Contracts underlying Securities may be settled early ("Holder's Early
Settlement") as provided in the Purchase Contract Agreement. In order to
exercise the right to effect Holder's Early Settlement with respect to any
Purchase Contracts evidenced by this Security Certificate, the Holder of this
Security Certificate shall deliver this Security Certificate to the Agent at
the Corporate Trust Office duly endorsed for transfer to the Company or in
blank with the form of Election to Settle Early set forth below duly completed
and accompanied by payment in the form of a certified or cashier's check
payable to the order of the Company in immediately available funds in a U.S.
dollar amount (the "Holder's Early Settlement Amount") equal to (i) the
product of (A) the Stated Amount times (B) the number of Purchase Contracts
with respect to which the Holder has elected to effect a Holder's Early
Settlement. If such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date next preceding
any Payment Date to the opening of business on such Payment Date, the amount
equal to the sum of (x) the Contract Fees and Deferred Contract Fees, if any,
payable on such Payment Date with respect to such Purchase Contracts plus (y)
the interest with respect to the related Treasury Notes payable on such
Payment Date. Upon a Holder's Early Settlement of Purchase Contracts by a
Holder of the related Securities, the Treasury Notes underlying such
Securities shall be released from the Pledge as provided in the Pledge
Agreement and the Holder shall be entitled to receive Prepaid Securities on
account of each Purchase Contract forming part of a Security as to which
Holder's Early Settlement is effected in accordance with the provisions of the
Purchase Contract Agreement. Upon the Holder's Early Settlement of the
Purchase Contracts, the Holder thereof will not forfeit the right to receive
any Contract Fees or Deferred Contract Fees on such Purchase Contracts
pursuant to the terms of the Prepaid Securities.
The Security Certificates are issuable only in registered form
and only in denominations of a single Security and any integral multiple
thereof. The transfer of any Security Certificate will be registered and
Security Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Security Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents permitted by the
Purchase Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. For so long as the Purchase Contract
underlying a Security remains in effect, such Security shall not be separable
into its constituent parts, and the rights and obligations of the Holder of
such Security in respect of the Treasury Notes and Purchase Contract
constituting such Security may be transferred and exchanged only as a
Security.
Upon registration of transfer of this Security Certificate, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to
the Purchase Contract Agreement), under the terms of the Purchase Contract
Agreement and the Purchase Contracts evidenced hereby and the transferor shall
be released from the obligations under the Purchase Contracts evidenced by
this Security Certificate. The Company covenants and agrees, and the Holder,
by his acceptance hereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
The Holder of this Security Certificate, by his acceptance
hereof, authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Securities evidenced hereby on his behalf as his
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the
event that the Company becomes the subject of a case under the Bankruptcy
Code, agrees to be bound by the terms and provisions thereof, covenants and
agrees to perform his obligations under such Purchase Contracts, consents
to the provisions of the Purchase Contract Agreement, authorizes the Agent
to enter into and perform the Pledge Agreement on his behalf as his
attorney-in-fact, and consents to the Pledge of the Treasury Notes
underlying this Security Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect of principal of the
Treasury Notes on the Final Settlement Date shall be paid by the Collateral
Agent to the Company in satisfaction of such Holder's obligations under
such Purchase Contract and such Holder shall acquire no right, title or
interest in such payments.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of at least
66 2/3% of the Outstanding Securities.
All terms used herein which are defined in the Purchase Contract
Agreement have the meanings set forth therein.
The Purchase Contracts shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the
Company or the Agent may treat the Person in whose name this Security
Certificate is registered as the owner of the Securities evidenced hereby for
the purpose of receiving payments of interest on the Treasury Notes, receiving
payments of Contract Fees and any Deferred Contract Fees, delivery of the
Treasury Notes, performance of the Purchase Contracts and for all other
purposes whatsoever, whether or not any payments in respect thereof be overdue
and notwithstanding any notice to the contrary, and neither the Company, the
Agent nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of
Common Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Agent.
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after the Final Settlement Date
of the Purchase Contracts underlying the number of Securities evidenced by
this Security Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned
at the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable
incident thereto.
Dated:_____________________________ ___________________________________
Signature
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please print
such Person's name and address:
Please print name and address of
Registered Holder:
____________________________________ ____________________________________
Name Name
____________________________________ ____________________________________
Address Address
Social Security or other Taxpayer
Identification Number, if any ____________________________________
HOLDER'S ELECTION TO SETTLE EARLY
The undersigned Holder of this Security Certificate hereby
irrevocably exercises the option to effect Holder's Early Settlement in
accordance with the terms of the Purchase Contract Agreement with respect to
the Purchase Contracts underlying the number of Securities evidenced by this
Security Certificate specified below. The undersigned Holder directs that a
certificate for Prepaid Securities deliverable upon such Holder's Early
Settlement be registered in the name of, and delivered with any Security
Certificate representing any Securities evidenced hereby as to which Holder's
Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Treasury Notes deliverable upon such Holder's Early
Settlement will be transferred in accordance with the transfer instructions
set forth below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable
incident thereto.
_______________________________ _______________________________________
Dated: Signature
Number of Securities evidenced hereby as to which Holder's Early
Settlement of the related Purchase Contracts is being elected:
If shares or Security Certificates are to REGISTERED HOLDER
be registered in the name of and
delivered to and Treasury Notes are to
be transferred to a Person other than
the Holder, please print such Person's
name and address:
Please print name and address of
Registered Holder:
_________________________________ ___________________________________
Name Name
_________________________________ ___________________________________
Address Address
Social Security or other Taxpayer
Identification Number, if any ___________________________________
Transfer Instructions for Treasury Notes Transferable Upon Holder's Early
Settlement or a Termination Event:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
