EXHIBIT 4.3
SOLECTRON CORPORATION
AND
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A.,
AS PURCHASE CONTRACT AGENT
PURCHASE CONTRACT AGREEMENT
DATED AS OF DECEMBER 27, 2001
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................... 1
SECTION 1.1 Definitions........................................................... 1
SECTION 1.2 Compliance Certificates and Opinions.................................. 14
SECTION 1.3 Form of Documents Delivered to Agent.................................. 15
SECTION 1.4 Acts of Holders; Record Dates......................................... 15
SECTION 1.5 Notices............................................................... 17
SECTION 1.6 Notice to Holders; Waiver............................................. 18
SECTION 1.7 Effect of Headings and Table of Contents.............................. 18
SECTION 1.8 Successors and Assigns................................................ 18
SECTION 1.9 Separability Clause................................................... 19
SECTION 1.10 Benefits of Agreement................................................ 19
SECTION 1.11 Governing Law........................................................ 19
SECTION 1.12 Legal Holidays....................................................... 19
SECTION 1.13 Counterparts......................................................... 19
SECTION 1.14 Inspection of Agreement.............................................. 20
ARTICLE II CERTIFICATE FORMS......................................................... 20
SECTION 2.1 Forms of Certificates Generally....................................... 20
SECTION 2.2 Form of Agent's Certificate of Authentication......................... 21
ARTICLE III THE UNITS................................................................ 21
SECTION 3.1 Title and Terms; Denominations........................................ 21
SECTION 3.2 Rights and Obligations Evidenced by the Certificates.................. 22
SECTION 3.3 Execution, Authentication, Delivery and Dating........................ 22
SECTION 3.4 Temporary Certificates................................................ 23
SECTION 3.5 Registration; Registration of Transfer And Exchange................... 24
SECTION 3.6 Book-Entry Interests.................................................. 26
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SECTION 3.7 Notices to Holders.................................................... 26
SECTION 3.8 Appointment of Successor Clearing Agency.............................. 27
SECTION 3.9 Definitive Certificates............................................... 27
SECTION 3.10 Mutilated, Destroyed, Lost and Stolen Certificates................... 27
SECTION 3.11 Persons Deemed Owners................................................ 28
SECTION 3.12 Cancellation......................................................... 29
SECTION 3.13 Establishment of Stripped Units...................................... 30
SECTION 3.14 Reestablishment of Normal Units...................................... 31
SECTION 3.15 Transfer of Collateral upon Occurrence of Termination Event.......... 32
SECTION 3.16 No Consent to Assumption............................................. 33
ARTICLE IV THE DEBENTURES............................................................ 33
SECTION 4.1 Payment of INTEREST; Rights to interest
payments Preserved; Notice............................................ 33
SECTION 4.2 Notice and Voting..................................................... 34
SECTION 4.3 Tax Event Redemption.................................................. 35
ARTICLE V THE PURCHASE CONTRACTS; THE REMARKETING.................................... 36
SECTION 5.1 Purchase of Shares of Common Stock.................................... 36
SECTION 5.2 Payment of Purchase Price; Remarketing................................ 37
SECTION 5.3 Issuance of Shares of Common Stock.................................... 42
SECTION 5.4 Adjustment of Settlement Rate......................................... 42
SECTION 5.5 Notice of Adjustments and Certain Other Events........................ 50
SECTION 5.6 Termination Event; Notice............................................. 50
SECTION 5.7 Early Settlement...................................................... 51
SECTION 5.8 Early Settlement Upon Merger.......................................... 52
SECTION 5.9 Charges and Taxes..................................................... 55
SECTION 5.10 No Fractional Shares................................................. 55
ARTICLE VI REMEDIES.................................................................. 55
SECTION 6.1 Unconditional Right of Holders to Purchase Common Stock............... 55
SECTION 6.2 Restoration of Rights and Remedies.................................... 56
SECTION 6.3 Rights and Remedies Cumulative........................................ 56
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SECTION 6.4 Delay or Omission Not Waiver.......................................... 56
SECTION 6.5 Undertaking for Costs................................................. 56
SECTION 6.6 Waiver of Stay or Extension Laws...................................... 57
ARTICLE VII THE AGENT................................................................ 57
SECTION 7.1 Certain Duties and Responsibilities................................... 57
SECTION 7.2 Notice of Default..................................................... 58
SECTION 7.3 Certain Rights of Agent............................................... 58
SECTION 7.4 Not Responsible for Recitals or Issuance of Units..................... 60
SECTION 7.5 May Hold Units........................................................ 60
SECTION 7.6 Money Held in Custody................................................. 60
SECTION 7.7 Compensation and Reimbursement........................................ 60
SECTION 7.8 Corporate Agent Required; Eligibility................................. 61
SECTION 7.9 Resignation and Removal; Appointment of Successor..................... 61
SECTION 7.10 Acceptance of Appointment by Successor............................... 63
SECTION 7.11 Merger, Conversion, Consolidation or Succession to Business.......... 63
SECTION 7.12 Preservation of Information; Communications to Holders............... 64
SECTION 7.13 No Obligations of Agent.............................................. 64
SECTION 7.14 Tax Compliance....................................................... 64
ARTICLE VIII SUPPLEMENTAL AGREEMENTS................................................. 65
SECTION 8.1 Supplemental Agreements Without Consent of Holders.................... 65
SECTION 8.2 Supplemental Agreements with Consent of Holders....................... 66
SECTION 8.3 Execution of Supplemental Agreements.................................. 67
SECTION 8.4 Effect of Supplemental Agreements..................................... 67
SECTION 8.5 Reference to Supplemental Agreements.................................. 67
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE................................. 68
SECTION 9.1 Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions....................................... 68
SECTION 9.2 Rights and Duties of Successor Corporation............................ 68
SECTION 9.3 Opinion of Counsel Given to Agent..................................... 69
ARTICLE X COVENANTS.................................................................. 69
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SECTION 10.1 Performance Under Purchase Contracts................................. 69
SECTION 10.2 Maintenance of Office or Agency...................................... 69
SECTION 10.3 Company to Reserve Common Stock...................................... 70
SECTION 10.4 Covenants as to Common Stock......................................... 70
SECTION 10.5 Statements of Officer of the Company as to Default................... 70
EXHIBITS
EXHIBIT A Form of Normal Units Certificate
EXHIBIT B Form of Stripped Units Certificate
EXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
EXHIBIT D Instruction to Purchase Contract Agent
PURCHASE CONTRACT AGREEMENT, dated as of December 27, 2001,
between Solectron Corporation, a Delaware corporation (the "Company"), and State
Street Bank and Trust Company of California, N.A., a national banking
association, acting as purchase contract agent for the Holders of Units from
time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Units.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company and authenticated, executed on behalf
of the Holders and delivered by the Agent, as provided in this Agreement, the
valid obligations of the Company, and to constitute this Agreement a valid
agreement of the Company, in accordance with its terms, have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the
Units by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular,
and nouns and pronouns of the masculine gender include the feminine and
neuter genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States as of the date hereof;
(c) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; and
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(d) the following terms have the meanings given to them in this
Section 1.1(d):
"Act" when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Agent" means the Person named as the "Agent" in the first
paragraph of this instrument until a successor Agent shall have become
such pursuant to the applicable provisions of this Agreement, and
thereafter "Agent" shall mean such Person.
"Agent-purchased Treasury Consideration" has the meaning specified
in Section 5.2(b)(i).
"Agreement" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
agreements supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Applicable Market Value" has the meaning specified in Section
5.1.
"Applicants" has the meaning specified in Section 7.12(b).
"Bankruptcy Code" means Title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry Interest, a
Person who is the beneficial owner of such Book-Entry Interest as
reflected on the books of the Clearing Agency or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Board of Directors" means either the Board of Directors of the
Company or the Pricing Committee of such Board or any other committee of
such Board duly authorized to act generally or in any particular respect
for the Board hereunder.
"Board Resolution" means (i) a copy of a resolution certified by
the Secretary or the Assistant Secretary of the Company to have been duly
adopted by the Board of Directors, the Pricing Committee or any other
duly authorized committee of the Board of Directors and to be in full
force and effect on the date of such certification, (ii) a copy of a
unanimous written consent of the Board of Directors, the Pricing
Committee or any other duly authorized committee of the
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Board of Directors or (iii) a certificate signed by the authorized
officer or officers to whom the Board of Directors has delegated its
authority, and in each case, delivered to the Agent.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and
made through book entries by a Clearing Agency as described in Section
3.6.
"Business Day" means any day that is not a Saturday, Sunday or day
on which banking institutions and trust companies in The City of New York
or at a place of payment are authorized or required by law, regulation or
executive order to close.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interests in (however designated, whether voting or non-voting) corporate
stock or similar interests in other types of entities.
"Cash Merger" has the meaning set forth in Section 5.8.
"Certificate" means a Normal Units Certificate or a Stripped Units
Certificate.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Units and in whose name, or in the name of a nominee
of that organization, shall be registered a Global Certificate and which
shall undertake to effect book-entry transfers and pledges of the Units.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Price" has the meaning specified in Section 5.1.
"Collateral" has the meaning specified in Section 2.1 of the
Pledge Agreement.
"Collateral Agent" means U.S. Bank, N. A., a national banking
association, as Collateral Agent under the Pledge Agreement until a
successor Collateral Agent shall have become such pursuant to the
applicable provisions of the Pledge Agreement, and thereafter "Collateral
Agent" shall mean the Person who is then the Collateral Agent thereunder.
"Collateral Substitution" has the meaning specified in Section
3.13.
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"Common Stock" means the Common Stock, par value $0.001 per share,
of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such
pursuant to the applicable provision of this Agreement, and thereafter
"Company" shall mean such successor.
"Constituent Person" has the meaning specified in Section 5.4(b).
"Corporate Trust Office" means the corporate trust office of the
Agent at which, at any particular time, the relationship created by this
Agreement shall be administered, which office at the date hereof is
located at 000 Xxxx 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, XX 00000.
"Coupon Rate" means the percentage rate per annum at which each
Debenture will bear interest initially.
"Current Market Price" has the meaning specified in Section
5.4(a)(8).
"Custodial Agent" means U.S. Bank. N.A., a national banking
association, as Custodial Agent under the Pledge Agreement until a
successor Custodial Agent shall have become such pursuant to the
applicable provisions of the Pledge Agreement, and thereafter "Custodial
Agent" shall mean the Person who is then the Custodial Agent thereunder.
"Debentures" means the series of subordinated debt securities of
the Company designated the 7.25% Subordinated Debentures due 2006, to be
issued under the First Supplemental Indenture.
"Depositary" means, initially, DTC, until another Clearing Agency
becomes its successor.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Early Settlement" has the meaning specified in Section 5.7(a).
"Early Settlement Amount" has the meaning specified in Section
5.7(a).
"Early Settlement Date" has the meaning specified in Section
5.7(a).
"Early Settlement Rate" has the meaning specified in Section
5.7(b).
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and
the rules and regulations promulgated thereunder.
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"Expiration Date" has the meaning specified in Section 1.4.
"Expiration Time" has the meaning specified in Section 5.4(a)(6).
"Failed Remarketing" has the meaning specified in Section
5.2(b)(ii).
"Fair Market Value" with respect to securities distributed in a
Spin-Off means (a) in the case of any Spin-Off that is effected
simultaneously with an Initial Public Offering of such securities, the
initial public offering price of those securities, (b) in the case of any
other Spin-Off, (i) the average of the Sale Price of those securities
over the first 10 Trading Days after the effective date of such Spin-Off,
or (ii) if the Sale Price is required to be defined without regard to the
price on any Trading Days, the Sale Price as of the effective date of
such Spin-Off.
"First Supplemental Indenture" means the First Supplemental
Indenture, dated as of December 27, 2001, between the Company and the
Trustee.
"Global Certificate" means a Certificate that evidences all or
part of the Units and is registered in the name of a Depositary or a
nominee thereof.
"Holder" means the Person in whose name the Unit evidenced by a
Normal Units Certificate and/or a Stripped Units Certificate is
registered in the related Normal Units Register and/or the Stripped Units
Register, as the case may be.
"Indenture" means the Base Indenture, dated as of December 27,
2001, between the Company and the Trustee, as supplemented by the First
Supplemental Indenture.
"Initial Public Offering" with respect to a Spin-Off means the
first time securities of the same class or type as the securities being
distributed in such Spin-Off are bona fide offered to the public for cash
in an offering registered under the Securities Act.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Company by the Chief Executive Officer,
the Chief Financial Officer, the President, any Vice-President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary (or other officer performing similar functions) of the Company
and delivered to the Agent.
"Last Failed Remarketing" has the meaning specified in Section
5.2(b)(ii).
"Merger Early Settlement" has the meaning specified in Section
5.8.
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"Merger Early Settlement Amount" has the meaning specified in
Section 5.8.
"Merger Early Settlement Date" has the meaning specified in
Section 5.8.
"Non-electing Share" has the meaning specified in Section 5.4(b).
"Normal Unit" means the collective rights and obligations of a
Holder of a Normal Units Certificate in respect of a Debenture or the
appropriate Treasury Consideration, as the case may be, subject in each
case to the Pledge thereof, and the related Purchase Contract.
"Normal Units Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Normal
Units specified on such certificate, substantially in the form of Exhibit
A hereto.
"Normal Units Register" and "Normal Units Registrar" have the
respective meanings specified in Section 3.5.
"NYSE" has the meaning specified in Section 5.1.
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, the Chief Financial Officer, the President or any
Vice-President, and by the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary (or other officer performing similar
functions) of the Company and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company or an
Affiliate and who shall be reasonably acceptable to the Agent.
"Opt-out Treasury Consideration" has meaning specified in Section
5.2(b)(iv).
"Outstanding Units" means, as of the date of determination, all
Normal Units or Stripped Units evidenced by Certificates theretofore
authenticated, executed and delivered under this Agreement, except:
(i) If a Termination Event has occurred, (A) Stripped Units
and (B) Normal Units for which the related Debenture or the
appropriate Treasury Consideration, as the case may be, has been
theretofore deposited with the Agent in trust for the Holders of
such Normal Units;
(ii) Normal Units and Stripped Units evidenced by
Certificates theretofore cancelled by the Agent or delivered to
the Agent for
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cancellation or deemed cancelled pursuant to the provisions of
this Agreement; and
(iii) Normal Units and Stripped Units evidenced by
Certificates in exchange for or in lieu of which other
Certificates have been authenticated, executed on behalf of the
Holder and delivered pursuant to this Agreement, other than any
such Certificate in respect of which there shall have been
presented to the Agent proof satisfactory to it that such
Certificate is held by a bona fide purchaser in whose hands the
Normal Units or Stripped Units evidenced by such Certificate are
valid obligations of the Company;
provided, that in determining whether the Holders of the requisite number
of the Normal Units or Stripped Units have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Normal
Units or Stripped Units owned by the Company or any Affiliate of the
Company shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Agent shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver, only Normal Units or Stripped Units which a Responsible Officer
of the Agent knows to be so owned shall be so disregarded. Normal Units
or Stripped Units so owned which have been pledged in good faith may be
regarded as Outstanding Units if the pledgee establishes to the
satisfaction of the Agent the pledgee's right so to act with respect to
such Normal Units or Stripped Units and that the pledgee is not the
Company or any Affiliate of the Company.
"Payment Date" means each February 15, May 15, August 15 and
November 15, commencing February 15, 2002.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Pledge" means the pledge under the Pledge Agreement of the
Debentures, the Treasury Securities or the appropriate Treasury
Consideration, in each case constituting a part of the Units, property,
cash, securities, financial assets and security entitlements of the
Collateral Account (as defined in the Pledge Agreement) and any proceeds
of any of the foregoing.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, by and among the Company, the Collateral Agent, the
Custodial Agent, the Securities Intermediary and the Agent, on its own
behalf and as attorney-in-fact for the Holders from time to time of the
Units.
"Pledged Debentures" has the meaning set forth in the Pledge
Agreement.
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"Pledged Treasury Consideration" has the meaning set forth in the
Pledge Agreement.
"Pledged Treasury Securities" has the meaning set forth in the
Pledge Agreement.
"Predecessor Certificate" means a Predecessor Normal Units
Certificate or a Predecessor Stripped Units Certificate.
"Predecessor Normal Units Certificate" of any particular Normal
Units Certificate means every previous Normal Units Certificate
evidencing all or a portion of the rights and obligations of the Company
and the Holder under the Normal Units evidenced thereby; and, for the
purposes of this definition, any Normal Units Certificate authenticated
and delivered under Section 3.10 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Normal Units Certificate shall be
deemed to evidence the same rights and obligations of the Company and the
Holder as the mutilated, destroyed, lost or stolen Normal Units
Certificate.
"Predecessor Stripped Units Certificate" of any particular
Stripped Units Certificate means every previous Stripped Units
Certificate evidencing all or a portion of the rights and obligations of
the Company and the Holder under the Stripped Units evidenced thereby;
and, for the purposes of this definition, any Stripped Units Certificate
authenticated and delivered under Section 3.10 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Stripped Units Certificate
shall be deemed to evidence the same rights and obligations of the
Company and the Holder as the mutilated, destroyed, lost or stolen
Stripped Units Certificate.
"Purchase Contract," when used with respect to any Unit, means the
contract forming a part of such Unit and obligating the Company to sell
and the Holder of such Unit to purchase Common Stock on the terms and
subject to the conditions set forth in Article Five.
"Purchase Contract Settlement Fund" has the meaning specified in
Section 5.3.
"Purchase Price" has the meaning specified in Section 5.1.
"Purchased Shares" has the meaning specified in Section 5.4(a)(6).
"Quotation Agent" means the primary U.S. government securities
dealer located in New York City and retained by the Company in order to
determine the price of the Redemption Treasury Portfolio. The Company
shall retain Goldman, Sachs, & Co. or a successor as the Quotation Agent;
provided that if Goldman, Sachs, & Co. ceases to be a primary government
securities dealer or does not wish
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to perform the services of the Quotation Agent under the First
Supplemental Indenture, the Company shall retain another primary U.S.
government securities dealer as quotation agent.
"Record Date" for the distribution payable on any Payment Date
means, as to any Global Certificate, the Business Day next preceding such
Payment Date, and as to any other Certificate, a day selected by the
Company which shall be more than one Business Day but less than 60
Business Days prior to such Payment Date.
"Redemption Amount" means, for each Debenture, the product of (i)
the principal amount of such Debenture and (ii) a fraction whose
numerator is the applicable Redemption Treasury Portfolio Purchase Price
and whose denominator is the applicable Redemption Principal Amount.
"Redemption Price" means the redemption price per Debenture equal
to the Redemption Amount plus any accrued and unpaid interest on such
Debenture to the date of redemption.
"Redemption Principal Amount" means either (i) if the Tax Event
Redemption Date occurs prior to the successful remarketing of the
Debentures pursuant to the provisions of Section 5.2 of this Agreement,
the aggregate principal amount of the Debentures which are components of
Normal Units on the Tax Event Redemption Date or (ii) if the Tax Event
Redemption Date occurs on or after a successful remarketing of the
Debentures pursuant to the terms of Section 5.2 of this Agreement, the
aggregate principal amount of the Debentures outstanding on such Tax
Event Redemption Date.
"Redemption Treasury Portfolio" means (a) if the Tax Event
Redemption Date occurs prior to the successful remarketing of the
Debentures pursuant to the provisions of Section 5.2 of this Agreement, a
portfolio of zero-coupon U.S. Treasury securities consisting of (i)
principal or interest strips of U.S. Treasury securities which mature on
or prior to the Stock Purchase Date in an aggregate amount equal to the
applicable Redemption Principal Amount and (ii) with respect to each
scheduled interest payment date on the Debentures that occurs after the
Tax Event Redemption Date and on or before the Stock Purchase Date,
principal or interest strips of U.S. Treasury securities which mature on
or prior to such date in an aggregate amount equal to the aggregate
interest payment that would be due on the applicable Redemption Principal
Amount of the Debentures on such date, assuming that the Interest Rate on
the Debentures were not reset on the applicable Reset Date, and (b) if
the Tax Event Redemption Date occurs after successful remarketing of the
Debentures in pursuant to the terms of Section 5.2 of this Agreement, a
portfolio of zero-coupon U.S. Treasury securities consisting of (i)
principal or interest strips of U.S. Treasury securities which mature on
or prior to November 15, 2006 in an aggregate amount equal to the
applicable
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Redemption Principal Amount and (ii) with respect to each scheduled
interest payment date on the Debentures that occurs after the Tax Event
Redemption Date, principal or interest strips of such U.S. Treasury
securities which mature on or prior to such date in an aggregate amount
equal to the aggregate interest payment that would be due on the
applicable Redemption Principal Amount of the Debentures on such date.
"Redemption Treasury Portfolio Purchase Price" means the lowest
aggregate price solicited by the Quotation Agent and quoted by a primary
U.S. government securities dealer for the Redemption Treasury Portfolio
on the third Business Day before the Tax Event Redemption Date for
settlement on the Tax Event Redemption Date.
"Register" means the Normal Units Register and the Stripped Units
Register, as applicable.
"Registrar" means the Normal Units Registrar and the Stripped
Units Registrar, as applicable.
"Remarketing Agent" has the meaning specified in Section
5.2(b)(i).
"Remarketing Agreement" means the Remarketing Agreement to be
entered into by and among the Company, the Remarketing Agent and the
Agent prior to the Remarketing Date.
"Remarketing Date" means August 15, 2004.
"Remarketing Fee" has the meaning specified in Section 5.2(b)(i).
"Remarketing Value" means the sum of
(i) the value at the Remarketing Date or the Subsequent
Remarketing Date, as the case may be, of U.S. Treasury securities
that will pay, on or prior to the Payment Date falling on the
Stock Purchase Date, an amount of cash equal to the aggregate
interest that is scheduled to be payable on that Payment Date, on
(1) the Debentures which are included in Normal Units and (2) the
Separate Debentures, in each case, which are participating in the
remarketing, assuming for that purpose that the interest rate on
the Debentures is equal to the Coupon Rate, and
(ii) the value at the Remarketing Date or the Subsequent
Remarketing Date, as the case may be, of U.S. Treasury securities
that will pay, on or prior to the Stock Purchase Date, an amount
of cash equal to the Stated Amount of (1) such Debentures that are
included in Normal Units and (2) the Separate Debentures, in each
case, which are participating in the remarketing;
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provided that for purposes of clauses (i) and (ii) above, the Remarketing
Value shall be calculated based on (x) U.S. Treasury securities that are
highly liquid and mature on or within 35 days prior to the Stock Purchase
Date, as determined in good faith by the Remarketing Agent in a manner
intended to minimize the Remarketing Value, and (y) U.S. Treasury
securities that are valued based on the ask-side price of such U.S.
Treasury securities at a time between 9:00 a.m. and 11:00 a.m., New York
City time, selected by the Remarketing Agent, on the Remarketing Date or
Subsequent Remarketing Date, as the case may be, as determined on a
third-day settlement basis by a reasonably and customary means selected
in good faith by the Remarketing Agent, plus accrued interest to that
date.
"Reorganization Event" has the meaning specified in Section
5.4(b).
"Reset Date" means the date of the successful remarketing of the
Debentures pursuant to the provisions of Section 5.2 of this Agreement.
"Responsible Officer" means, when used with respect to the Agent,
any officer within the Corporate Trust Administration unit of the Agent
(or any successor unit or department of the Agent) located at the
Corporate Trust Office of the Agent who has direct responsibility for the
administration of this Agreement and, for the purposes of Section
7.1(b)(2), shall also include any officer of the Agent to whom any
corporate trust matter is referred because of such person's knowledge of
and familiarity with the particular subject.
"Sale Price" of any securities distributed in a Spin-Off on any
Trading Day means the closing sale price per share (or if no closing
price is reported, the average of the bid and asked prices or, if more
than one in either case, the average of the average bid and average asked
prices) on such Trading Day as reported in composite transactions for the
principal U.S. securities exchange on which such securities are traded
or, if the securities are not listed on a U.S. national or regional
securities exchange, as reported by Nasdaq or, if the securities are not
so reported, the last quoted bid price for the securities 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 securities on such date as determined by a nationally
recognized independent investment banking firm retained for this purpose
by the Company.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Intermediary" means U.S. Bank, N. A., a national
banking association, in its capacity as Securities Intermediary under the
Pledge Agreement, together with its successors in such capacity.
"Separate Debentures" has the meaning set forth in the Pledge
Agreement.
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"Settlement Date" means any Early Settlement Date or Merger Early
Settlement Date or the Stock Purchase Date.
"Settlement Rate" has the meaning specified in Section 5.1.
"Spin-Off" means a dividend or other distribution on the Common
Stock of shares of Capital Stock of any class or series, or similar
equity interests, of or relating to a subsidiary or other business unit
of the Company.
"Stated Amount" means, with respect to any one Debenture, Normal
Unit or Stripped Unit, $25.
"Stock Purchase Date" means November 15, 2004.
"Stripped Unit" means the collective rights and obligations of a
holder of a Stripped Units Certificate in respect of a 1/40 undivided
beneficial interest in a Treasury Security, subject in each case to the
Pledge thereof, and the related Purchase Contract.
"Stripped Units Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Stripped
Units specified on such certificate, substantially in the form of Exhibit
B hereto.
"Stripped Units Register" and "Stripped Units Registrar" have the
respective meanings specified in Section 3.5.
"Subsequent Remarketing" has the meaning specified in Section
5.2(b)(ii).
"Subsequent Remarketing Date" means any date on which the
Remarketing Agent attempts a Subsequent Remarketing in accordance with
Section 5.2 hereof.
"Tax Event" means the receipt by the Company of an opinion of
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, or other
independent counsel having a nationally-recognized tax practice to the
effect that, as a result of (i) any amendment to, change in, or announced
proposed change in, the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority thereof or
therein affecting taxation, (ii) any amendment to or change in an
official interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
or (iii) any official interpretation or pronouncement that provides for a
position with respect to any such laws or regulations that differs from
the generally accepted position on December 20, 2001, which amendment,
change or proposed change is effective or which interpretation or
pronouncement is announced on or after December 20, 2001, there is more
than an insubstantial risk that interest or
12
original issue discount on the Debentures would not be deductible, in
whole or in part, by the Company for United States federal income tax
purposes.
"Tax Event Redemption" means the redemption by the Company, at its
option, if a Tax Event has occurred and is continuing, of all, but not
less than all, the Debentures then outstanding upon not less than 30 but
no more than 60 days' notice to the Holders of the Debentures.
"Tax Event Redemption Date" has the meaning specified in the First
Supplemental Indenture.
"Termination Date" means the date, if any, on which a Termination
Event occurs.
"Termination Event" means the occurrence of any of the following
events:
(i) at any time on or prior to the Stock Purchase Date, a
judgment, decree or court order shall have been entered granting
relief under the Bankruptcy Code or any other similar Federal or
state law, adjudicating the Company to be insolvent, or approving
as properly filed a petition seeking reorganization or liquidation
of the Company, and, unless such judgment, decree or order shall
have been entered within 60 days prior to the Stock Purchase Date,
such decree or order shall have continued undischarged and
unstayed for a period of 60 days;
(ii) a judgment, decree or court order for the appointment
of a receiver or liquidator or trustee or assignee in bankruptcy
or insolvency of the Company or of its property, or for the
winding up or liquidation of its affairs, shall have been entered,
and, unless such judgment, decree or order shall have been entered
within 60 days prior to the Stock Purchase Date, such judgment,
decree or order shall have continued undischarged and unstayed for
a period of 60 days; or
(iii) at any time on or prior to the Stock Purchase Date
the Company shall file a petition for relief under the Bankruptcy
Code or any other similar federal or state law, or shall consent
to the filing of a bankruptcy proceeding against it, or shall seek
reorganization or liquidation under the Bankruptcy Code or any
other similar federal or state law, or shall consent to the filing
of any such petition, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of it or of its property, or shall make an assignment
for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in
Section 5.1.
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"Trading Day" has the meaning specified in Section 5.1.
"Treasury Consideration" means the Agent-purchased Treasury
Consideration, the Opt-out Treasury Consideration, or the Redemption
Treasury Portfolio, as the case may be.
"Treasury Security" means a zero coupon U.S. Treasury security
(CUSIP Number 000000XX0) maturing on November 15, 2004 that will pay
$1,000 on such maturity date.
"Trustee" means State Street Bank and Trust Company of California,
N.A., a national banking association, as trustee under the Indenture and
the First Supplemental Indenture, or any successor thereto.
"Underwriting Agreement" means the Underwriting Agreement relating
to the Units dated December 20, 2001 among the Company and the
underwriters named therein.
"Unit" means a Normal Unit or a Stripped Unit.
"Vice-President" means any vice-president, whether or not
designated by a number or a word or words added before or after the title
"vice-president."
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Agent to take any action under any
provision of this Agreement, the Company shall furnish to the Agent an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Agreement relating to the proposed action have been complied with and, if
requested by the Agent, an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(a) a statement that the 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;
14
(c) a statement that, in the opinion of such individual, he or she
has made such examination or investigation as is necessary to enable such
individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such individual,
such condition or covenant has been complied with.
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO AGENT.
(a) 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.
(b) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company
unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the 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
15
writing appointing any such agent shall be sufficient for any purpose of
this Agreement and (subject to Section 7.1) conclusive in favor of the
Agent and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Agent deems
sufficient.
(c) The ownership of Units shall be proved by the Normal Units
Register or the Stripped Units Register, as the case may be.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Certificate shall bind
every future Holder of the same Certificate and the Holder of every
Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Certificate.
(e) The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Units entitled to give, make or
take any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Agreement to be
given, made or taken by Holders of Units. If any record date is set
pursuant to this paragraph, the Holders of the Outstanding Normal Units
and the Outstanding Stripped Units, as the case may be, on such record
date, and no other Holders, shall be entitled to take the relevant action
with respect to the Normal Units or the Stripped Units, as the case may
be, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite
number of Outstanding Units on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be 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 Units on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Agent in
writing and to each Holder of Units in the manner set forth in Section
1.6.
(f) 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
16
change shall be effective unless notice of the proposed new Expiration
Date is given to the Agent in writing, and to each Holder of Units in the
manner set forth in Section 1.6, on or prior to the existing Expiration
Date. If an Expiration Date is not designated with respect to any record
date set pursuant to this Section, the Company shall be deemed to have
initially designated the 180th day after such record date as the
Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
SECTION 1.5 NOTICES.
Any request, demand, authorization, direction, 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,
mailed, first-class postage prepaid, telecopied or delivered by overnight
air courier guaranteeing next day delivery, addressed to and received by
the Agent at 000 Xxxx 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, XX, 00000,
Attention: Corporate Trust Administration (Solectron Corporation 2001
Purchase Contract Agreement), telecopy: (000) 000-0000, with telephonic
confirmation to (000) 000-0000, or at any other address 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,
mailed, first-class postage prepaid, telecopied or delivered by overnight
air courier guaranteeing next day delivery, addressed to and received by
the Company at 000 Xxxxxxxxx Xxxxx, Xxxxxxxx, XX, Attention: Chief
Financial Officer, telecopy: (000) 000-0000, or at any other address
furnished in writing to the Agent by the Company; or
(c) the Collateral Agent by the Agent, the Company or any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered, mailed, first-class postage prepaid, telecopied or
delivered by overnight air courier guaranteeing next day delivery,
addressed to and received by the Collateral Agent at 000 Xxxx Xxxxx
Xxxxxx, Xx. Xxxx, XX 00000, Attn: Corporate Trust Services/Xxxxx Xxxxxx,
telecopy: (000) 000-0000, or at any other address furnished in writing by
the Collateral Agent to the Agent, the Company and the Holders; or
17
(d) the Trustee by the Company shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed in writing and personally delivered, mailed,
first-class postage prepaid, telecopied or delivered by overnight air
courier guaranteeing next day delivery, addressed to and received by the
Trustee at 000 Xxxx 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, XX, 00000,
Attention: Corporate Trust Administration (Solectron Corporation 2001
Purchase Contract Agreement), telecopy: (000) 000-0000, with telephonic
confirmation to (000) 000-0000, or at any other address furnished in
writing by the Trustee to the Company.
SECTION 1.6 NOTICE TO HOLDERS; WAIVER.
(a) Where this Agreement provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at its address as it
appears in the applicable Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed to
any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Agent, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
(b) In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval
of the Agent shall constitute a sufficient notification for every purpose
hereunder.
SECTION 1.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.8 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement by the Company
shall bind its successors and assigns, whether so expressed or not.
18
SECTION 1.9 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 Units, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and, to the extent provided hereby, the Holders, any benefits or any
legal or equitable right, remedy or claim under this Agreement. The Holders from
time to time shall be beneficiaries of this Agreement and shall be bound by all
of the terms and conditions hereof and of the Units evidenced by their
Certificates by their acceptance of delivery of such Certificates.
SECTION 1.11 GOVERNING LAW.
This Agreement and the Units shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law.
SECTION 1.12 LEGAL HOLIDAYS.
(a) In any case where any Payment Date shall not be a Business
Day, then (notwithstanding any other provision of this Agreement or the
Normal Units Certificates) payments on the Debentures shall not be made
on such date, but such payments shall be made on the next succeeding
Business Day with the same force and effect as if made on such Payment
Date, provided that no interest shall accrue or be payable by the Company
for the period from and after any such Payment Date, except that if such
next succeeding Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day with
the same force and effect as if made on such Payment Date.
(b) In any case where the Stock Purchase Date shall not be a
Business Day, then (notwithstanding any other provision of this Agreement
or the Certificates), the Purchase Contracts shall not be performed on
such date, but the Purchase Contracts shall be performed on the
immediately following Business Day with the same force and effect as if
performed on the Stock Purchase Date.
SECTION 1.13 COUNTERPARTS.
This Agreement may be executed in any number of counterparts by
the parties hereto, each of which, when so executed and delivered, shall be
deemed an original, but all such counterparts shall together constitute one and
the same instrument.
19
SECTION 1.14 INSPECTION OF AGREEMENT.
A copy of this Agreement shall be available at all reasonable
times during normal business hours at the Corporate Trust Office for inspection
by any Holder.
ARTICLE II
CERTIFICATE FORMS
SECTION 2.1 FORMS OF CERTIFICATES GENERALLY.
(a) The Normal Units Certificates (including the form of Purchase
Contract forming part of the Normal Units 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 or quotation system on
which the Normal Units are listed or quoted for trading or any depositary
therefor, or as may, consistently herewith, be determined by the officers
of the Company executing such Normal Units Certificates, as evidenced by
their execution of the Normal Units Certificates.
(b) The definitive Normal Units 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 such Normal Units Certificates, consistent with the provisions
of this Agreement, as evidenced by their execution thereof.
(c) The Stripped Units Certificates (including the form of
Purchase Contracts forming part of the Stripped Units evidenced thereby)
shall be in substantially the form set forth in Exhibit B hereto, with
such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as
may be required by the rules of any securities exchange or the quotation
system on which the Stripped Units may be listed or quoted for trading or
any depositary therefor, or as may, consistently herewith, be determined
by the officers of the Company executing such Stripped Units
Certificates, as evidenced by their execution of the Stripped Units
Certificates.
(d) The definitive Stripped Units 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 such Stripped Units Certificates, consistent with the
provisions of this Agreement, as evidenced by their execution thereof.
20
(e) Every Global Certificate authenticated, executed on behalf of
the Holders and delivered hereunder shall bear a legend in substantially
the following form:
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS
REGISTERED IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE
THEREOF. THIS CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART
FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS CERTIFICATE
IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT."
SECTION 2.2 FORM OF AGENT'S CERTIFICATE OF AUTHENTICATION.
(a) The form of the Agent's certificate of authentication of the
Normal Units shall be in substantially the form set forth on the form of
the Normal Units Certificates.
(b) The form of the Agent's certificate of authentication of the
Stripped Units shall be in substantially the form set forth on the form
of the Stripped Units Certificates.
ARTICLE III
THE UNITS
SECTION 3.1 TITLE AND TERMS; DENOMINATIONS.
(a) The aggregate number of Normal Units and Stripped Units, if
any, evidenced by Certificates authenticated, executed on behalf of the
Holders and delivered hereunder is limited to 40,000,000 (44,000,000 if
the Underwriters' over-allotment option pursuant to the Underwriting
Agreement is exercised in full), except for Certificates authenticated,
executed and delivered upon registration of transfer of, in exchange for,
or in lieu of, other Certificates pursuant to Section 3.4, 3.5, 3.10,
3.13, 3.14, 5.7, 5.8 or 8.5.
(b) The Certificates shall be issuable only in registered form and
only in denominations of a single Unit and any integral multiple thereof.
21
SECTION 3.2 RIGHTS AND OBLIGATIONS EVIDENCED BY THE CERTIFICATES.
(a) Each Normal Units Certificate shall evidence the number of
Normal Units specified therein, with each such Normal Unit representing
the ownership by the Holder thereof of a beneficial interest in a
Debenture or the appropriate Treasury Consideration, as the case may be,
subject to the Pledge of such Debenture or such Treasury Consideration,
as the case may be, by such Holder pursuant to the Pledge Agreement, and
the rights and obligations of the Holder thereof and the Company under
one Purchase Contract. The Agent as attorney-in-fact for, and on behalf
of, the Holder of each Normal Unit shall pledge, pursuant to the Pledge
Agreement, the Debenture or the appropriate Treasury Consideration, as
the case may be, forming a part of such Normal Unit, to the Collateral
Agent and grant to the Collateral Agent a security interest in the right,
title, and interest of such Holder in such Debenture or such Treasury
Consideration, as the case may be, for the benefit of the Company, to
secure the obligation of such Holder under the related Purchase Contract
to purchase the Common Stock of the Company. Prior to the purchase of
shares of Common Stock under each Purchase Contract, such Purchase
Contract shall not entitle the Holder of the related Normal Units
Certificates 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.
(b) Each Stripped Units Certificate shall evidence the number of
Stripped Units specified therein, with each such Stripped Unit
representing the ownership by the Holder thereof of a 1/40 undivided
beneficial interest in a Treasury Security, subject to the Pledge of such
interest in such Treasury Security by such Holder pursuant to the Pledge
Agreement, and the rights and obligations of the Holder thereof and the
Company under one Purchase Contract. Prior to the purchase of shares of
Common Stock under each Purchase Contract, such Purchase Contract shall
not entitle the Holder of the related Stripped Units Certificates 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.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) Subject to the provisions of Sections 3.13 and 3.14, upon the
execution and delivery of this Agreement, and at any time and from time
to time
22
thereafter, the Company may deliver Certificates executed by the Company
to the Agent for authentication, execution on behalf of the Holders and
delivery, together with its Issuer Order for authentication of such
Certificates, and the Agent in accordance with such Issuer Order shall
authenticate, execute on behalf of the Holders and deliver such
Certificates.
(b) The Certificates shall be executed on behalf of the Company by
the Chief Executive Officer, the Chief Financial Officer, the President,
any Vice-President, the Treasurer, any Assistant Treasurer, the Secretary
or any Assistant Secretary (or other officer performing similar
functions) of the Company and delivered to the Agent. The signature of
any of these officers on the Certificates may be manual or facsimile.
(c) Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of such
Certificates.
(d) No Purchase Contract evidenced by a Certificate shall be valid
until such Certificate has been executed on behalf of the Holder by the
manual signature of an authorized signatory of the Agent, as such
Holder's attorney-in-fact. Such signature by an authorized signatory of
the Agent shall be conclusive evidence that the Holder of such
Certificate has entered into the Purchase Contract or Purchase Contracts
evidenced by such Certificate.
(e) Each Certificate shall be dated the date of its
authentication.
(f) No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears
on such Certificate a certificate of authentication substantially in the
form provided for herein executed by an authorized signatory of the Agent
by manual signature, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has
been duly authenticated and delivered hereunder.
SECTION 3.4 TEMPORARY CERTIFICATES.
(a) Pending the preparation of definitive Certificates, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holders, and deliver, in lieu of
such definitive Certificates, temporary Certificates which are in
substantially the form set forth in Exhibit A or Exhibit B hereto, as the
case may be, with such letters, numbers or other marks of identification
or designation and such legends or endorsements printed, lithographed or
engraved thereon as may be required by the rules of any securities
exchange on which the Normal Units or Stripped Units, as the case may be,
are
23
listed, or as may, consistent herewith, be determined by the officers of
the Company executing such Certificates, as evidenced by their execution
of the Certificates.
(b) If temporary Certificates are issued, the Company will cause
definitive Certificates to be prepared without unreasonable delay. After
the preparation of definitive Certificates, the temporary Certificates
shall be exchangeable for definitive Certificates upon surrender of the
temporary Certificates at the Corporate Trust Office, at the expense of
the Company and without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Certificates, the Company shall
execute and deliver to the Agent, and the Agent shall authenticate,
execute on behalf of the Holder, and deliver in exchange therefor, one or
more definitive Certificates of like tenor and denominations and
evidencing a like number of Normal Units or Stripped Units, as the case
may be, as the temporary Certificate or Certificates so surrendered.
Until so exchanged, the temporary Certificates shall in all respects
evidence the same benefits and the same obligations with respect to the
Normal Units or Stripped Units, as the case may be, evidenced thereby as
definitive Certificates.
SECTION 3.5 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Agent shall keep at the Corporate Trust Office a register
(the "Normal Units Register") in which, subject to such reasonable
regulations as it may prescribe, the Agent shall provide for the
registration of Normal Units Certificates and of transfers of Normal
Units Certificates (the Agent, in such capacity, the "Normal Units
Registrar") and a register (the "Stripped Units Register") in which,
subject to such reasonable regulations as it may prescribe, the Agent
shall provide for the registration of the Stripped Units Certificates and
transfers of Stripped Units Certificates (the Agent, in such capacity,
the "Stripped Units Registrar").
(b) Upon surrender for registration of transfer of any 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 Certificates of
like tenor and denominations, and evidencing a like number of Normal
Units or Stripped Units, as the case may be.
(c) At the option of the Holder, Certificates may be exchanged for
other Certificates, of like tenor and denominations and evidencing a like
number of Normal Units or Stripped Units, as the case may be, upon
surrender of the Certificates to be exchanged at the Corporate Trust
Office. Whenever any Certificates are so surrendered for exchange, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the
24
Holder, and deliver the Certificates which the Holder making the exchange
is entitled to receive.
(d) All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same number
of Normal Units or Stripped Units, as the case may be, and be entitled to
the same benefits and subject to the same obligations, under this
Agreement as the Normal Units or Stripped Units, as the case may be,
evidenced by the Certificate surrendered upon such registration of
transfer or exchange.
(e) Every Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Agent duly executed, by the Holder
thereof or its attorney duly authorized in writing.
(f) No service charge shall be made for any registration of
transfer or exchange of a Certificate, but the Company and the Agent may
require payment from the Holder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Certificates, other than any
exchanges pursuant to Sections 3.6, 3.9 and 8.5 not involving any
transfer.
(g) Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder and deliver
any Certificate presented or surrendered for registration of transfer or
for exchange on or after the third Business Day immediately preceding the
earlier of the Stock Purchase Date or the Termination Date. In lieu of
delivery of a new Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Agent shall,
(i) if the Stock Purchase Date has occurred, deliver the
shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the Units evidenced by such
Certificate to the Holder,
(ii) in the case of Normal Units, if a Termination Event
shall have occurred prior to the Stock Purchase Date, transfer the
Debentures or the appropriate Treasury Consideration, as
applicable, relating to such Normal Units to the Holder, or
(iii) in the case of Stripped Units, if a Termination Event
shall have occurred prior to the Stock Purchase Date, transfer the
Treasury Securities relating to such Stripped Units to the Holder,
25
in each case subject to the applicable conditions and in accordance with
the applicable provisions of Article V.
SECTION 3.6 BOOK-ENTRY INTERESTS.
The Certificates, on original issuance, will be issued in the form
of one or more, fully registered Global Certificates, to be delivered to the
Depositary by, or on behalf of, the Company. Such Global Certificate shall
initially be registered on the books and records of the Company in the name of
Cede & Co., the nominee of the Depositary, and no Beneficial Owner will receive
a definitive Certificate representing such Beneficial Owner's interest in such
Global Certificate, except as provided in Section 3.9. The Agent shall enter
into an agreement with the Depositary if so requested by the Company. Unless and
until definitive, fully registered Certificates have been issued to Beneficial
Owners pursuant to Section 3.9:
(a) the provisions of this Section 3.6 shall be in full force and
effect;
(b) the Company and the Agent shall be entitled to deal with the
Registered Holder for all purposes of this Agreement (including receiving
approvals, votes or consents hereunder) as the Holder of the Units and
the sole holder of the Global Certificate(s) and shall have no obligation
to the Beneficial Owners;
(c) to the extent that the provisions of this Section 3.6 conflict
with any other provisions of this Agreement, the provisions of this
Section 3.6 shall control; and
(d) the rights of the Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Beneficial Owners and the Clearing Agency
and/or the Clearing Agency Participants. The Clearing Agency will make
book-entry transfers among Clearing Agency Participants.
SECTION 3.7 NOTICES TO HOLDERS.
Whenever a notice or other communication to the Holders is
required to be given under this Agreement, the Company or the Company's agent
shall give such notices and communications to the Holders and, with respect to
any Units registered in the name of a Clearing Agency or the nominee of a
Clearing Agency, the Company or the Company's agent shall, except as set forth
herein, have no obligations to the Beneficial Owners.
26
SECTION 3.8 APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Units, the Company may, in its sole
discretion, appoint a successor Clearing Agency with respect to the Units.
SECTION 3.9 DEFINITIVE CERTIFICATES.
If
(i) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Units and a successor
Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 3.8,
(ii) the Company elects to terminate the book-entry system
arrangements through the Clearing Agency with respect to the
Units, or
(iii) there shall have occurred and be continuing a default
by the Company in respect of its obligations under one or more
Purchase Contracts,
then upon surrender of the Global Certificates representing the
Book-Entry Interests with respect to the Units by the Clearing
Agency, accompanied by registration instructions, the Company
shall cause definitive Certificates to be delivered to Beneficial
Owners in accordance with the instructions of the Clearing Agency.
The Company shall not be liable for any delay in delivery of such
instructions and may conclusively rely on and shall be protected
in relying on, such instructions.
SECTION 3.10 MUTILATED, DESTROYED, LOST AND STOLEN CERTIFICATES.
(a) If any mutilated Certificate is surrendered to the Agent, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, a new Certificate at the cost of the Holder, evidencing the
same number of Normal Units or Stripped Units, as the case may be, and
bearing a Certificate number not contemporaneously outstanding.
(b) If there shall be delivered to the Company and the Agent (i)
evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and (ii) such security or indemnity at the cost of the
Holder as may be required by them to hold each of them and any agent of
any of them harmless, then, in the absence of notice to the Company or to
a Responsible Officer of the Agent that such Certificate has been
acquired by a bona fide purchaser, the Company shall
27
execute and deliver to the Agent, and the Agent shall authenticate,
execute on behalf of the Holder, and deliver to the Holder, in lieu of
any such destroyed, lost or stolen Certificate, a new Certificate,
evidencing the same number of Normal Units or Stripped Units, as the case
may be, and bearing a Certificate number not contemporaneously
outstanding.
(c) Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder, and deliver
to the Holder, a Certificate on or after the third Business Day
immediately preceding the earlier of the Stock Purchase Date or the
Termination Date. In lieu of delivery of a new Certificate, upon
satisfaction of the applicable conditions specified above in this Section
and receipt of appropriate registration or transfer instructions from
such Holder, the Agent shall (i) if the Stock Purchase Date has occurred,
deliver to the Holder the shares of Common Stock issuable in respect of
the Purchase Contracts forming a part of the Units evidenced by such
Certificate, or (ii) if a Termination Event shall have occurred prior to
the Stock Purchase Date, transfer to the Holder the Debentures, the
appropriate Treasury Consideration or the Treasury Securities, as the
case may be, evidenced thereby, in each case subject to the applicable
conditions and in accordance with the applicable provisions of Article
Five.
(d) Upon the issuance of any new Certificate under this Section,
the Company and the Agent may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees
and expenses of the Agent) connected therewith.
(e) Every new Certificate issued pursuant to this Section in lieu
of any destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder in
respect of the Unit evidenced thereby, whether or not the destroyed, lost
or stolen Certificate (and the Units evidenced thereby) shall be at any
time enforceable by anyone, and shall be entitled to all the benefits and
be subject to all the obligations of this Agreement equally and
proportionately with any and all other Certificates delivered hereunder.
(f) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Certificates.
SECTION 3.11 PERSONS DEEMED OWNERS.
(a) Prior to due presentment of a Certificate for registration of
transfer, the Company and the Agent, and any agent of the Company or the
Agent, may
28
treat the Person in whose name such Certificate is registered as the
owner of the Units evidenced thereby, for the purpose of receiving
interest payments on the Debentures, performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not any such
payments 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.
(b) Notwithstanding the foregoing, with respect to any Global
Certificate, nothing herein shall prevent the Company, the Agent or any
agent of the Company or the Agent, from giving effect to any written
certification, proxy or other authorization furnished by any Clearing
Agency (or its nominee), as a Holder, with respect to such Global
Certificate or impair, as between such Clearing Agency and owners of
beneficial interests in such Global Certificate, the operation of
customary practices governing the exercise of rights of such Clearing
Agency (or its nominee) as Holder of such Global Certificate.
SECTION 3.12 CANCELLATION.
(a) All Certificates surrendered (i) for delivery of shares of
Common Stock on or after any Settlement Date; (ii) upon the transfer of
Debentures, the appropriate Treasury Consideration or Treasury
Securities, as the case may be, after the occurrence of a Termination
Event or pursuant to an Early Settlement or Merger Early Settlement, or a
Collateral Substitution or an establishment or re-establishment of a
Normal Unit; or (iii) upon the registration of a transfer or exchange of
a Unit shall, if surrendered to any Person other than the Agent, be
delivered to the Agent and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Agent for
cancellation any Certificates previously authenticated, executed and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Certificates so delivered shall, upon Issuer Order,
be promptly cancelled by the Agent. No Certificates shall be
authenticated, executed on behalf of the Holder and delivered in lieu of
or in exchange for any Certificates cancelled as provided in this
Section, except as expressly permitted by this Agreement. All cancelled
Certificates held by the Agent shall be disposed of by the Agent in
accordance with its then customary procedures.
(b) If the Company or any Affiliate of the Company shall acquire
any Certificate, such acquisition shall not operate as a cancellation of
such Certificate unless and until such Certificate is delivered to the
Agent cancelled or for cancellation.
29
SECTION 3.13 ESTABLISHMENT OF STRIPPED UNITS.
(a) A Holder may separate the Pledged Debentures or Pledged
Treasury Consideration, as applicable, from the related Purchase
Contracts in respect of the Normal Units held by such Holder by
substituting for such Pledged Debentures or Pledged Treasury
Consideration, as the case may be, Treasury Securities that will pay at
maturity an amount equal to the aggregate Stated Amount of such Normal
Units (a "Collateral Substitution"), at any time from and after the date
of this Agreement and on or prior to the fourth Business Day immediately
preceding the Stock Purchase Date, by (i) depositing with the Collateral
Agent Treasury Securities having an aggregate principal amount equal to
the aggregate Stated Amount of such Normal Units, and (ii) transferring
the related Normal Units to the Agent accompanied by a notice to the
Agent, substantially in the form of Exhibit D hereto, stating that the
Holder has transferred the relevant amount of Treasury Securities to the
Collateral Agent and requesting that the Agent instruct the Collateral
Agent to release the Pledged Debentures or Pledged Treasury
Consideration, as the case may be, underlying such Normal Units,
whereupon the Agent shall promptly give such instruction to the
Collateral Agent, substantially in the form of Exhibit C hereto.
Notwithstanding the foregoing, a Holder may not separate the Pledged
Debentures or Pledged Treasury Consideration, as the case may be, from
the related Purchase Contracts in respect of the Normal Units held by
such Holder during the periods beginning on the fourth Business Day prior
to the Remarketing Date or any Subsequent Remarketing Date, as the case
may be, and ending on the third Business Day following such dates. Upon
receipt of the Treasury Securities described in clause (i) above and the
instruction described in clause (ii) above, in accordance with the terms
of the Pledge Agreement, the Collateral Agent will release to the Agent,
on behalf of the Holder, such Pledged Debentures or Pledged Treasury
Consideration, as the case may be, from the Pledge, free and clear of the
Company's security interest therein, and upon receipt thereof the Agent
shall promptly:
(x) cancel the related Normal Units;
(y) transfer the Pledged Debentures or Pledged Treasury
Consideration, as the case may be, to the Holder; and
(z) authenticate, execute on behalf of such Holder and
deliver a Stripped Units Certificate executed by the Company in
accordance with Section 3.3 evidencing the same number of Purchase
Contracts as were evidenced by the cancelled Normal Units.
(b) Holders who elect to separate the Pledged Debentures or
Pledged Treasury Consideration, as the case may be, from the related
Purchase Contract and to substitute Treasury Securities for such Pledged
Debentures or Pledged
30
Treasury Consideration, as the case may be, shall be responsible for any
fees or expenses payable to the Collateral Agent for its services as
Collateral Agent in respect of the substitution, and the Company shall
not be responsible for any such fees or expenses.
(c) Holders may make Collateral Substitutions (i) if Treasury
Securities are being substituted for Pledged Debentures, only in integral
multiples of 40 Normal Units, or (ii) if the Collateral Substitutions
occur after a Tax Event Redemption or a successful remarketing of the
Debentures pursuant to the terms of Section 5.2 of this Agreement, as the
case may be, only in integral multiples of Normal Units such that the
Treasury Securities to be deposited and the Treasury Consideration to be
released are in integral multiples of $1,000.
(d) In the event a Holder making a Collateral Substitution
pursuant to this Section 3.13 fails to effect a book-entry transfer of
the Normal Units or fails to deliver a Normal Units Certificate to the
Agent after depositing Treasury Securities with the Collateral Agent, the
Pledged Debentures or Pledged Treasury Consideration, as the case may be,
constituting a part of such Normal Units, and any distributions on such
Pledged Debentures or Pledged Treasury Consideration, as the case may be,
shall be held in the name of the Agent or its nominee in trust for the
benefit of such Holder, until such Normal Units are so transferred or the
Normal Units Certificate is so delivered, as the case may be, or, with
respect to a Normal Units Certificate, such Holder provides evidence
satisfactory to the Company and the Agent that such Normal Units
Certificate has been destroyed, lost or stolen, together with any
indemnity that may be required by the Agent and the Company.
(e) Except as described in this Section 3.13, for so long as the
Purchase Contract underlying a Normal Unit remains in effect, such Normal
Unit shall not be separable into its constituent parts, and the rights
and obligations of the Holder of such Normal Unit in respect of the
Debenture or the appropriate Treasury Consideration, as the case may be,
and the Purchase Contract comprising such Normal Unit may be acquired,
and may be transferred and exchanged, only as a Normal Unit.
SECTION 3.14 REESTABLISHMENT OF NORMAL UNITS.
(a) A Holder of Stripped Units may reestablish Normal Units at any
time from and after the date of this Agreement and on or prior to the
fourth Business Day immediately preceding the Stock Purchase Date, by (i)
depositing with the Collateral Agent the Debentures or the appropriate
Treasury Consideration (identified and calculated by reference to the
Treasury Consideration then comprising Normal Units), as the case may be,
then comprising such number of Normal Units as is equal to the number of
such Stripped Units and (ii) transferring such Stripped Units to the
Agent accompanied
31
by a notice to the Agent, substantially in the form of Exhibit D hereto,
stating that the Holder has transferred the relevant amount of Debentures
or the appropriate Treasury Consideration, as the case may be, to the
Collateral Agent and requesting that the Agent instruct the Collateral
Agent to release the Pledged Treasury Securities underlying such Stripped
Unit, whereupon the Agent shall promptly give such instruction to the
Collateral Agent, substantially in the form of Exhibit C hereto.
Notwithstanding the foregoing, a Holder may not reestablish Normal Units
during the periods beginning on the fourth Business Day prior to the
Remarketing Date or any Subsequent Remarketing Date, as the case may be,
and ending on the third Business Day following such dates. Upon receipt
of the Debentures or the appropriate Treasury Consideration, as the case
may be, described in clause (i) above and the instruction described in
clause (ii) above, in accordance with the terms of the Pledge Agreement,
the Collateral Agent will release to the Agent, on behalf of the Holder,
such Pledged Treasury Securities from the Pledge, free and clear of the
Company's security interest therein, and upon receipt thereof the Agent
shall promptly:
(x) cancel the related Stripped Units;
(y) transfer the Pledged Treasury Securities to the Holder;
and
(z) authenticate, execute on behalf of such Holder and
deliver a Normal Units Certificate executed by the Company in
accordance with Section 3.3 evidencing the same number of Purchase
Contracts as were evidenced by the cancelled Stripped Units.
(b) Holders of Stripped Units may reestablish Normal Units (i)
only in integral multiples of 40 Stripped Units for 40 Normal Units or
(ii) if the reestablishment occurs after a Tax Event Redemption or a
successful remarketing of the Debentures pursuant to Section 5.2 of this
Agreement, only in integral multiples of Stripped Units such that the
Treasury Consideration to be deposited and the Treasury Securities to be
released are in integral multiples of $1,000.
(c) Except as provided in this Section 3.14, for so long as the
Purchase Contract underlying a Stripped Unit remains in effect, such
Stripped Unit shall not be separable into its constituent parts, and the
rights and obligations of the Holder of such Stripped Unit in respect of
the Treasury Security and Purchase Contract comprising such Stripped Unit
may be acquired, and may be transferred and exchanged, only as a Stripped
Unit.
SECTION 3.15 TRANSFER OF COLLATERAL UPON OCCURRENCE OF TERMINATION EVENT.
Upon the occurrence of a Termination Event and the transfer to the
Agent of the Debentures, the appropriate Treasury Consideration or the Treasury
Securities, as the case may be, underlying the Normal Units and the Stripped
Units pursuant to the
32
terms of the Pledge Agreement, the Agent shall request transfer instructions
with respect to such Debentures or the appropriate Treasury Consideration or
Treasury Securities, as the case may be, from each Holder by written request
mailed to such Holder at its address as it appears in the Normal Units Register
or the Stripped Units Register, as the case may be. Upon book-entry transfer of
the Normal Units or Stripped Units or delivery of a Normal Units Certificate or
Stripped Units Certificate to the Agent with such transfer instructions, the
Agent shall transfer the Debentures, the appropriate Treasury Consideration or
Treasury Securities, as the case may be, underlying such Normal Units or
Stripped Units, as the case may be, to such Holder by book-entry transfer, or
other appropriate procedures, in accordance with such instructions. In the event
a Holder of Normal Units or Stripped Units fails to effect such transfer or
delivery, the Debentures, the appropriate Treasury Consideration or Treasury
Securities, as the case may be, underlying such Normal Units or Stripped Units,
as the case may be, and any distributions thereon, shall be held in the name of
the Agent or its nominee in trust for the benefit of such Holder, until such
Normal Units or Stripped Units are transferred or the Normal Units Certificate
or Stripped Units Certificate is surrendered or such Holder provides
satisfactory evidence that such Normal Units Certificate or Stripped Units
Certificate has been destroyed, lost or stolen, together with any indemnity that
may be required by the Agent and the Company.
SECTION 3.16 NO CONSENT TO ASSUMPTION.
Each Holder of a Unit, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption, under Section 365 of
the Bankruptcy Code or otherwise, of the Purchase Contract by the Company, any
receiver, liquidator or person or entity performing similar functions or its
trustee in the event that the Company becomes the debtor under the Bankruptcy
Code or subject to other similar state or federal law providing for
reorganization or liquidation.
ARTICLE IV
THE DEBENTURES
SECTION 4.1 PAYMENT OF INTEREST; RIGHTS TO INTEREST PAYMENTS PRESERVED;
NOTICE.
(a) A payment on any Debenture or Treasury Consideration, as the
case may be, 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 Normal
Units Certificate (or one or more Predecessor Normal Units Certificates)
of which such Debenture or the appropriate Treasury Consideration, as the
case may be, is a part is registered at the close of business on the
Record Date for such Payment Date.
33
(b) Each Normal Units Certificate evidencing Debentures delivered
under this Agreement upon registration of transfer of or in exchange for
or in lieu of any other Normal Units Certificate shall carry the rights
to interest accrued and unpaid, which were carried by the Debentures
underlying such other Normal Units Certificate.
(c) In the case of any Normal Unit with respect to which Early
Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date, or with respect to which Merger Early Settlement of the
underlying Purchase Contract is effected on a Merger Early Settlement
Date, or with respect to which a Collateral Substitution is effected, in
each case on a date that is after any Record Date and on or prior to the
next succeeding Payment Date, payments on the Debenture or the
appropriate Treasury Consideration, as the case may be, underlying such
Normal Unit otherwise payable on such Payment Date shall be payable on
such Payment Date notwithstanding such Early Settlement, Merger Early
Settlement or Collateral Substitution, as the case may be, and such
payments shall, subject to receipt thereof by the Agent, be payable to
the Person in whose name the Normal Units Certificate (or one or more
Predecessor Normal Unit Certificates) was 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 Normal Unit with
respect to which Early Settlement or Merger Early Settlement of the
underlying Purchase Contract is effected, or with respect to which a
Collateral Substitution has been effected, payments on the related
Debentures or payments on the appropriate Treasury Consideration, as the
case may be, that would otherwise be payable after the applicable
Settlement Date or after such Collateral Substitution, as the case may
be, shall not be payable hereunder to the Holder of such Normal Unit;
provided, that to the extent that such Holder continues to hold the
separated Debentures that formerly comprised a part of such Holder's
Normal Units, such Holder shall be entitled to receive any payments on
such separated Debentures.
SECTION 4.2 NOTICE AND VOTING.
Under the terms of the Pledge Agreement, the Agent will be
entitled to exercise the voting and any other consensual rights pertaining to
the Pledged Debentures but only to the extent instructed by the Holders as
described below. Upon receipt of notice of any meeting at which holders of
Debentures are entitled to vote or upon any solicitation of consents, waivers or
proxies of holders of Debentures, the Agent shall, as soon as practicable
thereafter, mail to the Holders of Normal Units a notice (a) containing such
information as is contained in the notice or solicitation, (b) stating that each
Holder on the record date set by the Agent therefor (which, to the extent
possible, shall be the same date as the record date for determining the holders
of Debentures entitled to vote) shall be entitled to instruct the Agent as to
the exercise of the voting rights pertaining to the Pledged Debentures
underlying their Normal Units and (c) stating the manner in which such
instructions may be given. Upon the written request of the Holders of Normal
34
Units on such record date, the Agent shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the instructions set forth in such
requests, the maximum number of Pledged Debentures as to which any particular
voting instructions are received. In the absence of specific instructions from
the Holder of a Normal Unit, the Agent shall abstain from voting the Pledged
Debenture underlying such Normal Unit. The Company hereby agrees, if applicable,
to solicit Holders of Normal Units to timely instruct the Agent in order to
enable the Agent to vote such Pledged Debentures.
SECTION 4.3 TAX EVENT REDEMPTION.
Upon the occurrence of a Tax Event Redemption prior to the
successful remarketing of the Debentures pursuant to the provisions of Section
5.2 of this Agreement, pursuant to the terms of the Pledge Agreement, the
Collateral Agent will apply out of the aggregate Redemption Price for the
Debentures that are components of the Normal Units, an amount equal to the
aggregate Redemption Amount for the Debentures that are components of the Normal
Units to purchase on behalf of the Holders of Normal Units, on a pro rata basis,
the Redemption Treasury Portfolio and promptly remit the remaining portion of
such Redemption Price, if any, to the Agent for payment to the Holders of such
Normal Units on a pro rata basis. The Redemption Treasury Portfolio will be
substituted for the Pledged Debentures, and will be held by the Collateral Agent
in accordance with the terms of the Pledge Agreement to secure the obligation of
each Holder of a Normal Unit to purchase the Common Stock of the Company under
the Purchase Contract constituting a part of such Normal Unit. Following the
occurrence of a Tax Event Redemption prior to the successful remarketing of the
Debentures pursuant to the provisions of Section 5.2 of this Agreement, the
Holders of Normal Units and the Collateral Agent shall have such security
interests, rights and obligations with respect to the Redemption Treasury
Portfolio as the Holder of Normal Units and the Collateral Agent had in respect
of the Debentures subject to the Pledge thereof as provided in Articles II, III,
IV, V, and VI of the Pledge Agreement, and any reference herein or in the
Certificates to the Debentures shall be deemed to be reference to such
Redemption Treasury Portfolio and any reference herein or in the Certificates to
interest on the Debentures shall be deemed to be reference to corresponding
distributions on the Redemption Treasury Portfolio. The Company may cause to be
made in any Normal Unit Certificates thereafter to be issued such change in
phraseology and form (but not in substance) as may be appropriate to reflect the
substitution of the Redemption Treasury Portfolio for Debentures as collateral.
35
ARTICLE V
THE PURCHASE CONTRACTS; THE REMARKETING
SECTION 5.1 PURCHASE OF SHARES OF COMMON STOCK.
(a) Each Purchase Contract shall, unless an Early Settlement has
occurred in accordance with Section 5.7, or a Merger Early Settlement has
occurred in accordance with Section 5.8, obligate the Holder of the
related Unit to purchase, and the Company to sell, on the Stock Purchase
Date at a price equal to $25 (the "Purchase Price"), a number of newly
issued shares of Common Stock equal to the Settlement Rate unless, on or
prior to the Stock Purchase Date, there shall have occurred a Termination
Event with respect to the Unit of which such Purchase Contract is a part.
The "Settlement Rate" is equal to,
(i) if the Applicable Market Value (as defined below) is
equal to or greater than $11.58 (the "Threshold Appreciation
Price"), 2.1597 shares of Common Stock per Purchase Contract,
(ii) if the Applicable Market Value is less than the
Threshold Appreciation Price, but is greater than $9.81, the
number of shares of Common Stock per Purchase Contract equal to
the Stated Amount of the related Unit divided by the Applicable
Market Value, and
(iii) if the Applicable Market Value is equal to or less
than $9.81, 2.5484 shares of Common Stock per Purchase Contract,
in each case subject to adjustment as provided in Section 5.4 (and in
each case rounded upward or downward to the nearest 1/10,000th of a
share).
(b) The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on, if applicable, each of the 20
consecutive Trading Days ending on the third Trading Day immediately
preceding the Stock Purchase Date (or, in the event of a Cash Merger
contemplated by Section 5.8, ending on the third Trading Day immediately
preceding the date of the consummation of the Cash Merger). The "Closing
Price" of the Common Stock on any date of determination means the closing
sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on
such date or, if the Common Stock is not listed for trading on the NYSE
on any such date, as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is
so listed, or if the Common Stock is not so listed on a United States
national or regional securities exchange, as reported by The Nasdaq Stock
Market, or, if the Common Stock is not so reported, the last quoted bid
price for the Common Stock in the over-the-counter market as reported by
the National Quotation Bureau or similar organization, or, if such bid
price is not available, the
36
market value of the Common Stock on such date as determined by a
nationally recognized independent investment banking firm retained for
this purpose by the Company. A "Trading Day" means a day on which the
Common Stock (A) is not suspended from trading on any national or
regional securities exchange or association or over-the-counter market at
the close of business and (B) has traded at least once on the national or
regional securities exchange or association or over-the-counter market
that is the primary market for the trading of the Common Stock.
(c) Each Holder of a Unit, by its acceptance thereof, irrevocably
authorizes the Agent to enter into and perform the related Purchase
Contract on its behalf as its attorney-in-fact (including the execution
of Certificates on behalf of such Holder), agrees to be bound by the
terms and provisions thereof, covenants and agrees to perform its
obligations under such Purchase Contracts, and consents to the provisions
hereof, irrevocably authorizes the Agent as its attorney-in-fact to enter
into and perform the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to and agrees to be bound by the Pledge of
the Debentures, the appropriate Treasury Consideration or the Treasury
Securities pursuant to the Pledge Agreement; provided that upon a
Termination Event, the rights of the Holder of such Unit under the
Purchase Contract may be enforced without regard to any other rights or
obligations. Each Holder of a Unit, by its acceptance thereof, further
covenants and agrees, that, to the extent and in the manner provided in
Section 5.2 and the Pledge Agreement, but subject to the terms thereof,
payments in respect of the Debentures, the appropriate Treasury
Consideration or the Treasury Securities to be paid upon settlement of
such Holder's obligations to purchase Common Stock under the Purchase
Contract, shall be paid on the Stock Purchase Date by the Collateral
Agent to the Company in satisfaction of such Holder's obligations under
such Purchase Contract.
(i) Upon registration of transfer of a Certificate, the
transferee shall be bound (without the necessity of any other
action on the part of such transferee) under the terms of this
Agreement, the Purchase Contracts underlying such Certificate and
the Pledge Agreement, and the transferor shall be released from
the obligations under this Agreement, the Purchase Contracts
underlying the Certificates so transferred and the Pledge
Agreement. The Company covenants and agrees, and each Holder of a
Certificate, by its acceptance thereof, likewise covenants and
agrees, to be bound by the provisions of this paragraph.
SECTION 5.2 PAYMENT OF PURCHASE PRICE; REMARKETING.
(a) Unless a Tax Event Redemption or a Termination Event has
occurred or a Holder of a Unit has settled the underlying Purchase
Contract through an Early Settlement pursuant to Section 5.7 or a Merger
Early Settlement
37
pursuant to Section 5.8, the settlement of the Purchase Contract
underlying a Unit will be made in accordance with this Section 5.2.
(b) (i) The Company shall engage a nationally recognized
investment bank (the "Remarketing Agent") pursuant to a Remarketing
Agreement to be mutually agreed on by the Company, the Agent and the
Remarketing Agent, but providing for remarketing procedures substantially
as set forth below to sell the Debentures of Holders of Normal Units,
other than Holders that have elected not to participate in the
remarketing pursuant to clause (iv) below, and holders of Separate
Debentures that have elected to participate in the remarketing. On the
seventh day prior to August 15, 2004, the Company shall give Holders of
Normal Units and holders of Separate Debentures notice of the remarketing
in a daily newspaper in the English language of general circulation in
The City of New York (which shall be The Wall Street Journal, if such
newspaper is then so published) and the Agent shall give to Holders of
Normal Units and holders of Separate Debentures notice of the remarketing
through the facilities of DTC. Such notice shall include the specific
U.S. Treasury security or securities (including the CUSIP number and/or
the principal terms of such Treasury security or securities) described in
clause (iv) below, that must be delivered by Holders of Normal Units that
elect not to participate in the remarketing pursuant to clause (iv) below
no later than 10:00 a.m. on the fourth Business Day preceding the
Remarketing Date. The Agent shall notify, by 10:00 a.m., New York City
time, on the third Business Day preceding the Remarketing Date, the
Remarketing Agent and the Collateral Agent of the aggregate number of
Debentures of Normal Unit Holders to be remarketed. On the third Business
Day preceding the Remarketing Date, no later than by 10:00 a.m. New York
City time, pursuant to the terms of the Pledge Agreement, the Custodial
Agent will notify the Remarketing Agent of the aggregate number of
Separate Debentures to be remarketed. On the Business Day immediately
preceding the Remarketing Date, the Collateral Agent and the Custodial
Agent, pursuant to the terms of the Pledge Agreement, will deliver for
remarketing to the Remarketing Agent all Debentures to be remarketed.
Upon receipt of such notice from the Agent and the Custodial Agent and
such Debentures from the Collateral Agent and the Custodial Agent, the
Remarketing Agent will, on the Remarketing Date, use its commercially
reasonable best efforts to sell such Debentures on such date at a price
equal to 100.5% of the Remarketing Value. The Remarketing Agent will use
the proceeds from a successful remarketing to purchase the appropriate
U.S. Treasury securities (the "Agent-purchased Treasury Consideration")
with the CUSIP numbers, if any, selected by the Remarketing Agent,
described in clauses (i)(1) and (ii)(1) of the definition of Remarketing
Value related to the Debentures of Holders of Normal Units that were
remarketed. On or prior to the third Business Day following the
Remarketing Date, the Remarketing Agent shall deliver such
Agent-purchased Treasury Consideration to the Agent, which shall
thereupon deliver such Agent-purchased Treasury Consideration to the
Collateral Agent. The Collateral Agent, for the benefit of the Company,
will thereupon apply such
38
Agent-purchased Treasury Consideration, in accordance with the Pledge
Agreement, to secure such Holders' obligations under the Purchase
Contracts. The Remarketing Agent will deduct as a remarketing fee an
amount not exceeding 50 basis points (.50%) of the total proceeds from
the remarketing (the "Remarketing Fee"). The Remarketing Agent will remit
(1) the portion of the proceeds from the remarketing attributable to the
Separate Debentures to the holders of Separate Debentures that were
remarketed and (2) the remaining portion of the proceeds, less those
proceeds used to purchase the Agent-purchased Treasury Consideration, to
the Agent for the benefit of the Holders of the Normal Units that were
remarketed, all determined on a pro rata basis, in each case, on or prior
to the third Business Day following the Remarketing Date. Holders whose
Debentures are so remarketed will not otherwise be responsible for the
payment of any Remarketing Fee in connection therewith.
(ii) If, in spite of using its commercially reasonable best
efforts, the Remarketing Agent cannot remarket the Debentures
included in the remarketing at a price equal to at least 100.5% of
the Remarketing Value, the remarketing will be deemed to have
failed (a "Failed Remarketing"). If a Failed Remarketing occurs,
within three Business Days following the Remarketing Date, the
Remarketing Agent shall return any Debentures delivered to it to
the Collateral Agent and the Custodial Agent, as applicable. The
Remarketing Agent may make attempts to remarket the Debentures on
each of the four consecutive Business Days ending on October 1,
2004 and on the third Business Day immediately preceding the Stock
Purchase Date (each a "Subsequent Remarketing") in accordance with
the procedures set forth in this Section 5.2(b) and the
Remarketing Agreement, provided that (i) the notice of any
Subsequent Remarketing cannot be given until the Failed
Remarketing notice (referred to below) has been published in
respect of any immediately preceding Failed Remarketing and (ii)
the settlement date in respect of any Subsequent Remarketing must
fall no later than on the Business Day immediately preceding the
Stock Purchase Date. If by 4:00 p.m., New York City time, on the
third Business Day immediately preceding the Stock Purchase Date,
the Remarketing Agent, in spite of using its commercially
reasonable best efforts, has failed to remarket the Debentures at
100.5% of the Remarketing Value in accordance with the terms of
the Pledge Agreement, the "Last Failed Remarketing" will be deemed
to have occurred. In this case, within three Business Days
following the date of the Last Failed Remarketing, the Remarketing
Agent shall return any Debentures delivered to it to the
Collateral Agent. The Collateral Agent, for the benefit of the
Company, may exercise its rights as a secured party with respect
to such Debentures, including those actions specified in (b) (iii)
below; provided, that if upon the Last Failed Remarketing, the
Collateral Agent exercises such rights for the benefit of the
Company with respect to such Debentures, any accumulated and
39
unpaid interest on such Debentures will become payable by the
Company to the Agent for payment to the Holders of the Normal
Units to which such Debentures relate. Such payment will be made
by the Company on or prior to 11:00 a.m., New York City time, on
the Stock Purchase Date in lawful money of the United States by
certified or cashier's check or wire transfer in immediately
available funds payable to or upon the order of the Agent. The
Company will cause a notice of any Failed Remarketing and of the
Last Failed Remarketing to be published on the second Business Day
following the Remarketing Date, each of the four consecutive
Business Days ending on October 1, 2004 and the date of the Last
Failed Remarketing, as the case may be, in a daily newspaper in
the English language of general circulation in The City of New
York, which shall be The Wall Street Journal, if such newspaper is
then so published.
(iii) With respect to any Debentures which constitute part
of Normal Units which are subject to the Last Failed Remarketing,
the Collateral Agent for the benefit of the Company reserves all
of its rights as a secured party with respect thereto and, subject
to applicable law and Section 5.2 (e) below, may, among other
things, (A) retain such Debentures in full satisfaction of the
Holders' obligations under the Purchase Contracts or (B) sell such
Debentures in one or more public or private sales or otherwise.
(iv) A Holder of Normal Units may elect not to participate
in the remarketing and retain the Debentures underlying such Units
by notifying the Agent of such election and delivering the
specific U.S. Treasury security or securities (including the CUSIP
number and/or the principal terms of such security or securities)
identified by the Agent (as having been based solely on the
identification that the Remarketing Agent shall have advised the
Agent) that constitute the U.S. Treasury securities described in
clauses (i) and (ii) of the definition of Remarketing Value
relating to the retained Debentures (as if only such Debentures
were being remarketed) (the "Opt-out Treasury Consideration") to
the Agent not later than 10:00 a.m. on the fourth Business Day
prior to the Remarketing Date (or, in the case of a Failed
Remarketing, not later than 10:00 a.m. on the fourth Business Day
immediately prior to the Subsequent Remarketing Date). Upon
receipt thereof by the Agent, the Agent shall deliver such Opt-out
Treasury Consideration to the Collateral Agent, which will, for
the benefit of the Company, thereupon apply such Opt-out Treasury
Consideration to secure such Holder's obligations under the
Purchase Contracts. On the first Business Day immediately
preceding the Remarketing Date or any Subsequent Remarketing Date,
as applicable, the Collateral Agent, pursuant to the terms of the
Pledge Agreement, will deliver the Pledged Debentures of such
Holder to the Agent. Within three Business Days following the
Remarketing Date or any Subsequent
40
Remarketing Date, as applicable, (A) if the remarketing was
successful, the Agent shall distribute such Debentures to the
Holders thereof, and (B) if there was a Failed Remarketing on such
date, the Agent will deliver such Debentures to the Collateral
Agent, which will, for the benefit of the Company, thereupon apply
such Debentures to secure such Holders' obligations under the
Purchase Contract and return the Opt-out Treasury Consideration
delivered by such Holders to such Holders. A Holder that does not
so deliver the Opt-out Treasury Consideration pursuant to this
clause (iv) shall be deemed to have elected to participate in the
remarketing.
(c) Upon the maturity of the Pledged Treasury Securities
underlying the Stripped Units and the Pledged Treasury Consideration
underlying the Normal Units, on the Stock Purchase Date, the Collateral
Agent shall remit to the Company an amount equal to the aggregate
Purchase Price applicable to such Units, as payment for the Common Stock
issuable upon settlement thereof without needing to receive any
instructions from the Holders of such Units. In the event the payments in
respect of the Pledged Treasury Securities or the Pledged Treasury
Consideration underlying a Unit is in excess of the Purchase Price of the
Purchase Contract being settled thereby, the Collateral Agent will
distribute such excess to the Agent for the benefit of the Holder of such
Unit when received.
(d) Any distribution to Holders of excess funds and interest
described in Section 5.2 (b) and (c) above shall be payable at the office
of the Agent in The City of New York maintained for that purpose or, at
the option of the Holder or the holder of Separate Debentures, as
applicable, by check mailed to the address of the Person entitled thereto
at such address as it appears on the Register or by wire transfer to an
account specified by the Holder or the holder of Separate Debentures, as
applicable.
(e) The obligations of each Holder to pay the Purchase Price are
non-recourse obligations and, except to the extent paid by Early
Settlement or Merger Early Settlement, are payable solely out of the
proceeds of any Collateral pledged to secure the obligations of the
Holders and in no event will Holders be liable for any deficiency between
such payments and the Purchase Price.
(f) Notwithstanding anything to the contrary herein, the Company
shall not be obligated to issue any Common Stock in respect of a Purchase
Contract or deliver any certificates therefor to the Holder of the
related Unit unless the Company shall have received payment in full of
the aggregate Purchase Price for the shares of Common Stock to be
purchased thereunder by such Holder in the manner herein set forth;
provided that the foregoing is not applicable if the Debentures are not
successfully remarketed pursuant to this Section 5.2 and provided further
that nothing is this paragraph (f) (including the preceding
41
proviso) shall in any respect limit or impair the rights reserved to the
Company pursuant to Section 5(b)(iii).
SECTION 5.3 ISSUANCE OF SHARES OF COMMON STOCK.
Unless a Termination Event shall have occurred on or prior to the
Stock Purchase Date or an Early Settlement or a Merger Early Settlement shall
have occurred, on the Stock Purchase Date, upon its receipt of payment in full
of the Purchase Price for the shares of Common Stock purchased by the Holders
pursuant to the foregoing provisions of this Article and subject to Section
5.4(b), the Company shall issue and deposit with the Agent, for the benefit of
the Holders of the Outstanding Units, one or more certificates representing the
newly issued shares of Common Stock, registered in the name of the Agent (or its
nominee) as custodian for the Holders (such certificates for shares of Common
Stock, together with any dividends or distributions for which a record date and
payment date for such dividend or distribution has occurred after the Stock
Purchase Date, being hereinafter referred to as the "Purchase Contract
Settlement Fund"), to which the Holders are entitled hereunder. Subject to the
foregoing, upon surrender of a Certificate to the Agent on or after the Stock
Purchase Date, together with settlement instructions thereon duly completed and
executed, the Holder of such Certificate shall be entitled to receive in
exchange therefor a certificate representing that number of whole shares of
Common Stock which such Holder is entitled to receive pursuant to the provisions
of this Article V (after taking into account all Units then held by such Holder)
together with cash in lieu of fractional shares as provided in Section 5.10 and
any dividends or distributions with respect to such shares constituting part of
the Purchase Contract Settlement Fund, but without any interest thereon, and the
Certificate so surrendered shall forthwith be cancelled. Such shares shall be
registered in the name of the Holder or the Holder's designee as specified in
the settlement instructions provided by the Holder to the Agent. If any shares
of Common Stock issued in respect of a Purchase Contract are to be registered to
a Person other than the Person in whose name the Certificate evidencing such
Purchase Contract is registered, no such registration shall be made unless the
Person requesting such registration has paid any transfer and other taxes
required by reason of such registration in a name other than that of the
registered Holder of such Certificate or has established to the satisfaction of
the Company that such tax either has been paid or is not payable.
SECTION 5.4 ADJUSTMENT OF SETTLEMENT RATE.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) Stock Dividends. In case the Company shall pay or make
a dividend or other distribution on the Common Stock in Common
Stock, the Settlement Rate, as in effect at the opening of
business on the day following the date fixed for the determination
of stockholders entitled to receive such dividend or other
distribution shall be increased by dividing such Settlement Rate
by a fraction of which the numerator shall be the
42
number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the
total number of shares constituting such dividend or other
distribution, such increase to become effective immediately after
the opening of business on the day following the date fixed for
such determination. For the purposes of this paragraph (1), the
number of shares of Common Stock at the time outstanding shall not
include shares held in the treasury of the Company but shall
include any shares issuable in respect of any scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company
will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(2) Stock Purchase Rights. In case the Company shall issue
rights, options or warrants to all holders of its Common Stock
(not being available on an equivalent basis to Holders of the
Units upon settlement of the Purchase Contracts underlying such
Units) entitling them, for a period expiring within 45 days after
the record date for the determination of stockholders entitled to
receive such rights, options or warrants, to subscribe for or
purchase shares of Common Stock at a price per share less than the
Current Market Price per share of the Common Stock on the date
fixed for the determination of stockholders entitled to receive
such rights, options or warrants (other than pursuant to a
dividend reinvestment or share purchase or similar 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, the numerator of
which 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 of which shall be the
number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number
of shares of Common Stock so offered for subscription or purchase,
such increase to become effective immediately after the opening of
business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number
of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company but shall
include any shares issuable in respect of any 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.
43
(3) Stock Splits; Reverse Splits. In case outstanding
shares of Common Stock shall be subdivided or split into a greater
number of shares of Common Stock, the Settlement Rate in effect at
the opening of business on the day following the day upon which
such subdivision or split becomes effective shall be
proportionately increased, and, conversely, in case outstanding
shares of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the Settlement Rate in effect at
the opening of business on the day following the day upon which
such combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may be, to become
effective immediately after the opening of business on the day
following the day upon which such subdivision, split or
combination becomes effective.
(4) Debt or Asset Distributions. (i) 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 (a) any rights, options or warrants
referred to in paragraph (2) of this Section, (b) any dividend or
distribution paid exclusively in cash, (c) any distribution on the
Common Stock of shares of Capital Stock of any class or series, or
similar equity interests, of or relating to a subsidiary or other
business unit in the case of a Spin-Off referred to in clause (ii)
of this paragraph, and (d) any dividend or distribution referred
to in paragraph (1) of this Section), the Settlement Rate shall be
adjusted so that the same shall equal the rate, if positive,
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, the numerator of which 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 of which shall be such Current Market Price per share
of the Common Stock, such adjustment to become effective
immediately prior to the opening of business on the day following
the date fixed for the determination of stockholders entitled to
receive such distribution. In any case in which this paragraph (4)
is applicable, paragraphs (1) and (2) of this Section shall not be
applicable.
(ii) In the case of a Spin-Off, the Settlement Rate in
effect immediately before the close of business on the record date
fixed for determination of stockholders entitled to receive that
distribution will be increased by multiplying the Settlement Rate
by a fraction, the numerator of which is the Current Market Price
per share of the Common Stock plus the Fair Market Value of the
portion of those shares of Capital Stock or
44
similar equity interests so distributed applicable to one share of
Common Stock and the denominator of which is the Current Market
Price per share of the Common Stock. Any adjustment to the
Settlement Rate under this paragraph 4(ii) will be determined at
the earlier of (1) the tenth Trading Day from, and including, the
effective date of the Spin-Off (or, if the Settlement Rate is
required to be adjusted without regard to Trading Days, the
effective date of such Spin-Off ) and (2) the date of the Initial
Public Offering of the securities subject of the Spin-Off, if that
Initial Public Offering is effected simultaneously with the
Spin-Off, and shall be given retroactive effect to the opening of
business on the day following the date fixed for determination of
stockholders entitled to receive the Spin-Off Distribution.
(5) Cash Distributions. In case the Company shall, (i) by
dividend or otherwise, distribute to all holders of its Common
Stock cash (excluding any cash that is distributed in a
Reorganization Event to which Section 5.4(b) applies or as part of
a distribution referred to in paragraph (4) of this Section) in an
aggregate amount that, combined together with (ii) the aggregate
amount of any other distributions to all holders of its Common
Stock made exclusively in cash within the 12 months preceding the
date of payment of such distribution and in respect of which no
adjustment pursuant to this paragraph (5) or paragraph (6) of this
Section has been made and (iii) the aggregate of any cash plus the
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution filed with the Agent) of consideration payable in
respect of any tender or exchange offer by the Company or any of
its subsidiaries for all or any portion of the Common Stock
concluded within the 12 months preceding the date of payment of
the distribution described in clause (i) above and in respect of
which no adjustment pursuant to this paragraph (5) or paragraph
(6) of this Section has been made, exceeds 15% of the product of
the Current Market Price per share of the Common Stock on the date
for the determination of holders of shares of Common Stock
entitled to receive such distribution times the number of shares
of Common Stock outstanding on such date, then, and in each such
case, immediately after the close of business on such date for
determination, the Settlement Rate shall be increased so that the
same shall equal the rate determined by dividing the Settlement
Rate in effect immediately prior to the close of business on the
date fixed for determination of the stockholders entitled to
receive such distribution by a fraction (A) the numerator of which
shall be equal to the Current Market Price per share of the Common
Stock on the date fixed for such determination less an amount
equal to the quotient of (x) the combined amount distributed or
payable in the transactions described in clauses (i), (ii) and
(iii) above and (y) the number of shares of Common Stock
outstanding on such date for determination and (B) the denominator
of
45
which shall be equal to the Current Market Price per share of the
Common Stock on such date for determination.
(6) Tender Offers. In case (i) a tender or exchange offer
made by the Company or any subsidiary of the Company for all or
any portion of the Common Stock shall expire and such tender or
exchange offer (as amended upon the expiration thereof) shall
require the payment to stockholders (based on the acceptance (up
to any maximum specified in the terms of the tender or exchange
offer) of Purchased Shares) of an aggregate consideration having a
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution filed with the Agent) that combined together with (ii)
the aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the
Agent), as of the expiration of such tender or exchange offer, of
consideration payable in respect of any other tender or exchange
offer, by the Company or any subsidiary of the Company for all or
any portion of the Common Stock expiring within the 12 months
preceding the expiration of such tender or exchange offer and in
respect of which no adjustment pursuant to paragraph (5) of this
Section or this paragraph (6) has been made and (iii) the
aggregate amount of any distributions to all holders of the
Company's Common Stock made exclusively in cash within the 12
months preceding the expiration of such tender or exchange offer
and in respect of which no adjustment pursuant to paragraph (5) of
this Section or this paragraph (6) has been made, exceeds 15% of
the product of the Current Market Price per share of the Common
Stock as of the last time (the "Expiration Time") tenders could
have been made pursuant to such tender or exchange offer (as it
may be amended) times the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration
Time, then, and in each such case, immediately prior to the
opening of business on the day after the date of the Expiration
Time, the Settlement Rate shall be adjusted so that the same shall
equal the rate, if positive, determined by dividing the Settlement
Rate immediately prior to the close of business on the date of the
Expiration Time by a fraction (A) the numerator of which shall be
equal to (x) the product of (I) the Current Market Price per share
of the Common Stock on the date of the Expiration Time and (II)
the number of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time less (y) the amount of
cash plus the fair market value (determined as aforesaid) of the
aggregate consideration payable to stockholders based on the
transactions described in clauses (i), (ii) and (iii) above
(assuming in the case of clause (i) the acceptance, up to any
maximum specified in the terms of the tender or exchange offer, of
Purchased Shares), and (B) the denominator of which shall be equal
to the product of (x) the Current Market Price per share of the
Common Stock as of the Expiration Time
46
and (y) (i) the number of shares of Common Stock outstanding
(including any tendered shares) as of the Expiration Time less
(ii) the number of all shares validly tendered and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up to
any such maximum, being referred to as the "Purchased Shares").
(7) Reclassification. The reclassification of Common Stock
into securities including securities other than Common Stock
(other than any reclassification upon a Reorganization Event to
which Section 5.4(b) applies) shall be deemed to involve (i) a
distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of stockholders entitled to receive such
distribution" and the "date fixed for such determination" within
the meaning of paragraph (4) of this Section), and (ii) a
subdivision, split or combination, as the case may be, of the
number of shares of Common Stock outstanding immediately prior to
such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such
subdivision or split becomes effective" or "the day upon which
such combination becomes effective," as the case may be, and "the
day upon which such subdivision, split or combination becomes
effective" within the meaning of paragraph (3) of this Section).
(8) "Current Market Price". The "Current Market Price" per
share of Common Stock on any day means (a) the average of the Sale
Price for the 5 consecutive Trading Days preceding the earlier of
the day preceding the day in question and the day before the "ex
date" with respect to the issuance or distribution requiring
computation, (b) in the case of any Spin-Off that is effected
simultaneously with an Initial Public Offering of the securities
being distributed in the Spin-Off, the Sale Price of the Common
Stock on the Trading Day on which the initial public offering
price of the securities being distributed in the Spin-Off is
determined, and (c) in the case of any other Spin-Off, the average
of the Sale Price of the Common Stock over the first 10 Trading
Days after the effective date of such Spin-Off; provided, in each
case, that if the Sale Price is required to be determined without
regard to Trading Days, the effective date of such Spin-Off . For
purposes of this paragraph, the term "ex date," when used with
respect to any issuance or distribution, shall mean the first date
on which the Common Stock trades regular way on such exchange or
in such market without the right to receive such issuance or
distribution.
(9) Calculation of Adjustments. All adjustments to the
Settlement Rate shall be calculated to the nearest 1/10,000th of a
share of
47
Common Stock (or if there is not a nearest 1/10,000th of a share
to the next lower 1/10,000th of a share). No adjustment in the
Settlement Rate shall be required unless such adjustment would
require an increase or decrease of at least one percent therein;
provided, that any adjustments which by reason of this
subparagraph are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. If an
adjustment is made to the Settlement Rate pursuant to paragraph
(1), (2), (3), (4), (5), (6), (7) or (10) of this Section 5.4(a),
an adjustment shall also be made to the Applicable Market Value
solely to determine which of clauses (i), (ii) or (iii) of the
definition of Settlement Rate in Section 5.1(a) will apply on the
Stock Purchase Date. Such adjustment shall be made by multiplying
the Applicable Market Value by a fraction, the numerator of which
shall be the Settlement Rate immediately after such adjustment
pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of
this Section 5.4(a) and the denominator of which shall be the
Settlement Rate immediately before such adjustment; provided, that
if such adjustment to the Settlement Rate is required to be made
pursuant to the occurrence of any of the events contemplated by
paragraph (1), (2), (3), (4), (5), (7) or (10) of this Section
5.4(a) during the period taken into consideration for determining
the Applicable Market Value, appropriate and customary adjustments
shall be made to the Settlement Rate.
(10) Increase of Settlement Rate. The Company may make such
increases in the Settlement Rate, in addition to those required by
this Section, as it considers to be advisable in order to avoid or
diminish any income tax to any holders of shares of Common Stock
resulting from any dividend or distribution of stock or issuance
of rights or warrants to purchase or subscribe for stock or from
any event treated as such for income tax purposes or for any other
reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event.
In the event of
(1) any consolidation or merger of the Company with or into
another Person (other than a merger or consolidation in which the
Company is the continuing entity and in which the Common Stock
outstanding immediately prior to the merger or consolidation is
not exchanged for cash, securities or other property of the
Company or another corporation),
(2) any sale, transfer, lease or conveyance to another
Person of the property of the Company as an entirety or
substantially as an entirety,
48
(3) any statutory exchange of securities of the Company
with another Person (other than in connection with a merger or
acquisition), or
(4) any liquidation, dissolution or winding up of the
Company other than as a result of or after the occurrence of a
Termination Event (any such event, a "Reorganization Event"),
the Settlement Rate will be adjusted to provide that each Holder of Units will
receive on the Stock Purchase Date with respect to each Purchase Contract
forming a part thereof, the kind and amount of securities, cash and other
property receivable upon such Reorganization Event (without any interest
thereon, and without any right to dividends or distribution thereon which have a
record date that is prior to the Stock Purchase Date) by a Holder of the number
of shares of Common Stock issuable on account of each Purchase Contract if the
Stock Purchase Date had occurred immediately prior to such Reorganization Event
assuming such Holder of Common Stock is not a Person with which the Company
consolidated or into which the Company merged or which merged into the Company
or to which such sale or transfer was made, as the case may be (any such Person,
a "Constituent Person"), or an Affiliate of a Constituent Person to the extent
such Reorganization Event provides for different treatment of Common Stock held
by Affiliates of the Company and non-Affiliates, and such Holder failed to
exercise his rights of election, if any, as to the kind or amount of securities,
cash and other property receivable upon such Reorganization Event (provided that
if the kind or amount of securities, cash and other property receivable upon
such Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("Non-electing Share"), then for the purpose of
this Section the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by each Non-electing Share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
Non-electing Shares).
In the event of such a Reorganization Event, the Person formed by
such consolidation, merger or exchange or the Person which acquires the assets
of the Company or, in the event of a liquidation or dissolution of the Company,
the Company or a liquidating trust created in connection therewith, shall
execute and deliver to the Agent an agreement supplemental hereto providing that
the Holder of each Outstanding Unit shall have the rights provided by this
Section 5.4. Such supplemental agreement shall provide for adjustments which,
for events subsequent to the effective date of such supplemental agreement,
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Section. The above provisions of this Section shall similarly apply
to successive Reorganization Events.
49
SECTION 5.5 NOTICE OF ADJUSTMENTS AND CERTAIN OTHER EVENTS.
(a) Whenever the Settlement Rate is adjusted as herein provided,
the Company shall:
(i) forthwith compute the Settlement Rate in accordance
with Section 5.4 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 requires an adjustment to the Settlement Rate pursuant
to Section 5.4 (or if the Company is not aware of such occurrence,
as soon as practicable after becoming so aware), provide a written
notice to the Holders of the Units of the occurrence of such event
and a statement in reasonable detail setting forth the method by
which the adjustment to the Settlement Rate was determined and
setting forth the adjusted Settlement Rate.
(b) The Agent shall not at any time be under any duty or
responsibility to any Holder of Units to determine whether any facts
exist which may require any adjustment of the Settlement Rate, or with
respect to the nature or extent or calculation of any such adjustment
when made, or with respect to the method employed in making the same. The
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 5.6 TERMINATION EVENT; NOTICE.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including the rights and obligations of
Holders to purchase Common Stock, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Agent or the
Company, if, on or prior to the Stock Purchase Date, a Termination Event shall
have occurred. Upon and after the occurrence of a Termination Event, the Normal
Units shall thereafter represent the right to receive the Debentures or the
appropriate Treasury Consideration, as the case may be, forming a part of such
Normal Units, and the Stripped Units shall thereafter represent the right to
receive the Treasury Securities forming a part of such Stripped Units, in each
case in
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accordance with the provisions of Section 4.3 of the Pledge Agreement.
Upon the occurrence of a Termination Event, the Company shall promptly but in no
event later than two Business Days thereafter give written notice to the Agent,
the Collateral Agent and to the Holders, at their addresses as they appear in
the Register.
SECTION 5.7 EARLY SETTLEMENT.
(a) Subject to and upon compliance with the provisions of this
Section 5.7, Purchase Contracts underlying Units having an aggregate
Stated Amount equal to $1,000 or an integral multiple thereof may, at
the option of the Holder thereof, be settled early ("Early Settlement")
on or prior to the seventh Business Day immediately preceding the
Remarketing Date or any Subsequent Remarketing Date; provided however,
that if a Tax Event Redemption has occurred and the Treasury
Consideration has become a component of the Normal Units, Purchase
Contracts underlying Normal Units may be settled early, on or prior to
the fourth Business Day immediately preceding the Stock Purchase Date,
in integral multiples of Normal Units such that Treasury Consideration
to be released is in integral multiples of $1,000. In order to exercise
the right to effect Early Settlement with respect to any Purchase
Contracts, the Holder of the Certificate evidencing the related Units
shall deliver such 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 payable to the Company in immediately
available funds in an amount (the "Early Settlement Amount") equal to
the product of (i) the Stated Amount of such Units multiplied by (ii)
the number of Purchase Contracts with respect to which the Holder has
elected to effect Early Settlement. If the foregoing requirements are
first satisfied with respect to Purchase Contracts underlying any Unit
at or prior to 5:00 p.m., New York City time, on a Business Day, such
day shall be the "Early Settlement Date" with respect to such Unit and
if such requirements are first satisfied after 5:00 p.m., New York City
time, on a Business Day or on a day that is not a Business Day, the
"Early Settlement Date" with respect to such Units shall be the next
succeeding Business Day.
(b) Upon Early Settlement of any Purchase Contract by the Holder
of the related Units, the Company shall issue, and the Holder shall be
entitled to receive, 2.1597 shares of Common Stock on account of such
Purchase Contract (the "Early Settlement Rate"). The Early Settlement
Rate shall be adjusted in the same manner and at the same time as the
Settlement Rate is adjusted pursuant to Section 5.4. As promptly as
practicable after Early Settlement of Purchase Contracts in accordance
with the provisions of this Section 5.7, the Company shall issue and
shall deliver to the Agent at the Corporate Trust Office a certificate
or certificates for the full number of shares of Common Stock issuable
upon such Early Settlement together with payment in lieu of any fraction
of a share, as provided in Section 5.10.
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(c) No later than the third Business Day after the applicable
Early Settlement Date the Company shall cause (i) the shares of Common
Stock issuable upon Early Settlement of Purchase Contracts to be issued
and delivered, and (ii) the related Pledged Debentures or Pledged
Treasury Consideration, in the case of Normal Units, or the related
Pledged Treasury Securities, in the case of Stripped Units, to be
released from the Pledge by the Collateral Agent and transferred, in
each case, to the Agent for delivery to the Holder thereof or the
Holder's designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject
to receipt of shares of Common Stock from the Company and the Pledged
Debentures, Pledged Treasury Consideration or Pledged Treasury
Securities, as the case may be, from the Collateral Agent, as
applicable, the Agent shall, in accordance with the instructions
provided by the Holder thereof on the applicable form of Election to
Settle Early on the reverse of the Certificate evidencing the related
Units, (i) transfer to the Holder the Pledged Debentures, Pledged
Treasury Consideration or Pledged Treasury Securities, as the case may
be, forming a part of such Units, and (ii) deliver to the Holder a
certificate or certificates for the full number of shares of Common
Stock issuable upon such Early Settlement together with payment in lieu
of any fraction of a share, as provided in Section 5.10.
(e) In the event that Early Settlement is effected with respect
to Purchase Contracts underlying less than all the Units evidenced by a
Certificate, upon such Early Settlement the Company shall execute and
the Agent shall authenticate, countersign and deliver to the Holder
thereof, at the expense of the Company, a Certificate evidencing the
Units as to which Early Settlement was not effected.
SECTION 5.8 EARLY SETTLEMENT UPON MERGER.
(a) In the event of a merger or consolidation of the Company of
the type described in clause (1) of Section 5.4(b) in which the Common
Stock outstanding immediately prior to such merger or consolidation is
exchanged for consideration consisting of at least 30% cash or cash
equivalents (any such event a "Cash Merger"), then the Company (or the
successor to the Company hereunder) shall be required to offer the
Holder of each Unit the right to settle the Purchase Contract underlying
such Unit prior to the Stock Purchase Date ("Merger Early Settlement")
as provided herein. On or before the fifth Business Day after the
consummation of a Cash Merger, the Company or, at the request and
expense of the Company, the Agent, shall give all Holders notice of the
occurrence of the Cash Merger and of the right of Merger Early
Settlement arising as a result thereof. The Company shall also deliver a
copy of such notice to the Agent and the Collateral Agent.
Each such notice shall contain:
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(i) the date, which shall be not less than 20 nor more than
30 calendar days after the date of such notice, on which the
Merger Early Settlement will be effected (the "Merger Early
Settlement Date");
(ii) the date, which shall be three Business Days prior to
the Merger Early Settlement Date, by which the Merger Early
Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash
Merger and the kind and amount of securities, cash and other
property receivable by the Holder upon settlement of each
Purchase Contract pursuant to Section 5.4(b);
(iv) a statement to the effect that all or a portion of the
Purchase Price payable by the Holder to settle the Purchase
Contract will be offset against the amount of cash so receivable
upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the
Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall
deliver to the Agent at the Corporate Trust Office on or before 5:00
p.m., New York City time on the date specified in the notice, (i)
payment payable to the Company in immediately available funds in an
amount equal to the Early Settlement Amount less the amount of cash that
otherwise would be deliverable by the Company or its successor upon
settlement of the Purchase Contract in lieu of Common Stock pursuant to
Section 5.4(b) and as described in the notice to Holders (the "Merger
Early Settlement Amount"), and (ii) (A) a duly completed Election to
Settle Early, provided to such Holder by the Agent, in the form on the
reverse of the Global Certificate evidencing the Units with respect to
which the Merger Early Settlement right is being exercised or (B) if the
Certificates are held in definitive, fully registered form, the
Certificate(s) evidencing the Units with respect to which the Merger
Early Settlement right is being exercised duly endorsed for transfer to
the Company or in blank with the form of Election to Settle Early on the
reverse thereof duly completed.
(c) On the Merger Early Settlement Date, the Company shall
deliver or cause to be delivered (i) the net cash, securities and other
property to be received by such exercising Holder, equal to the
Settlement Rate as adjusted to provide that each Holder of Units will
receive on the Merger Early Settlement Date with respect to each
Purchase Contract forming a part thereof, the kind and amount of
securities, cash and other property receivable upon such Cash Merger
(without any interest thereon, and without any right to dividends or
distribution thereon which have a record date that is prior to the
Merger Early Settlement
53
Date) equal to the number of shares of Common Stock issuable on account
of each Purchase Contract if the Merger Early Settlement Date had
occurred immediately prior to such Cash Merger and as further adjusted
pursuant to Section 5.4, in respect of the number of Purchase Contracts
for which such Merger Early Settlement right was exercised, and (ii) the
related Pledged Debentures or Pledged Treasury Consideration, in the
case of Normal Units, or Pledged Treasury Securities, in the case of
Stripped Units, to be released from the Pledge by the Collateral Agent
and transferred, in each case, to the Agent for delivery to the Holder
thereof or its designee. In the event a Merger Early Settlement right
shall be exercised by a Holder in accordance with the terms hereof,
except as otherwise provided, all references herein to Stock Purchase
Date shall be deemed to refer to such Merger Early Settlement Date.
(d) Upon Merger Early Settlement of any Purchase Contracts, and
subject to receipt of such net cash, securities or other property from
the Company and the Pledged Debentures, Pledged Treasury Consideration
or Pledged Treasury Securities, as the case may be, from the Collateral
Agent, as applicable, the Agent shall, in accordance with the
instructions provided by the Holder thereof on the applicable form of
Election to Settle Early on the reverse of the Certificate evidencing
the related Units, (i) transfer to the Holder the Pledged Debentures,
Pledged Treasury Consideration or Pledged Treasury Securities, as the
case may be, forming a part of such Units, and (ii) in lieu of any
shares of Common Stock issuable to the Hodler hereunder, deliver to the
Holder such net cash, securities or other property issuable upon such
Merger Early Settlement together with payment in lieu of any fraction of
a share, as provided in Section 5.10.
(e) In the event that Merger Early Settlement is effected with
respect to Purchase Contracts underlying less than all the Units
evidenced by a Certificate, upon such Merger Early Settlement the
Company (or the successor to the Company hereunder) shall execute and
the Agent shall authenticate, countersign and deliver to the Holder
thereof, at the expense of the Company, a Certificate evidencing the
Units as to which Merger Early Settlement was not effected.
(f) In the event a Holder does not exercise such Holder's Merger
Early Settlement right, each such non-exercising Holder of Units will
receive on the Stock Purchase Date with respect to each Purchase
Contract forming a part thereof, the kind and amount of securities, cash
and other property receivable upon such Cash Merger (without any
interest thereon, and without any right to dividends or distribution
thereon which have a record date that is prior to the Stock Purchase
Date) equal to the number of shares of Common Stock issuable on account
of each Purchase Contract if the Stock Purchase Date had occurred
immediately prior to such Cash Merger. The above provisions of this
Section shall similarly apply to successive Reorganization Events to the
extent a Holder has not previously exercised his Merger Early Settlement
right.
54
SECTION 5.9 CHARGES AND TAXES.
The Company will pay all stock transfer and similar taxes
attributable to the initial issuance and delivery of the shares of Common Stock
pursuant to the Purchase Contracts; provided, that the Company shall not be
required to pay any such tax or taxes which may be payable in respect of any
exchange of or substitution for a Certificate evidencing a Unit or any issuance
of a share of Common Stock in a name other than that of the registered Holder of
a Certificate surrendered in respect of the Units evidenced thereby, other than
in the name of the Agent, as custodian for such Holder, and the Company shall
not be required to issue or deliver such share certificates or certificates
unless and until the Person or Persons requesting the transfer or issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 5.10 NO FRACTIONAL SHARES.
No fractional shares or scrip representing fractional shares of
Common Stock shall be issued or delivered upon settlement on the Stock Purchase
Date or upon Early Settlement or Merger Early Settlement of any Purchase
Contracts. If Certificates evidencing more than one Purchase Contract shall be
surrendered for settlement at one time by the same Holder, the number of full
shares of Common Stock which shall be delivered upon settlement shall be
computed on the basis of the aggregate number of Purchase Contracts evidenced by
the Certificates so surrendered. Instead of any fractional share of Common Stock
which would otherwise be deliverable upon settlement of any Purchase Contracts
on the applicable Settlement Date or upon Early Settlement or Merger Early
Settlement, the Company, through the Agent, shall make a cash payment in respect
of such fractional shares in an amount equal to the value of such fractional
shares times the Applicable Market Value. The Company shall provide the Agent
from time to time with sufficient funds to permit the Agent to make all cash
payments required by this Section 5.10 in a timely manner.
ARTICLE VI
REMEDIES
SECTION 6.1 UNCONDITIONAL RIGHT OF HOLDERS TO PURCHASE COMMON STOCK.
The Holder of any Unit shall have the right, which is absolute
and unconditional, to purchase Common Stock pursuant to the Purchase Contract
constituting a part of such Unit and to institute suit for the enforcement of
any such right to purchase Common Stock, and such rights shall not be impaired
without the consent of such Holder.
55
SECTION 6.2 RESTORATION OF RIGHTS AND REMEDIES.
If any Holder has instituted any proceeding to enforce any right
or remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company and such Holder shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of such Holder
shall continue as though no such proceeding had been instituted.
SECTION 6.3 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates in the last
paragraph of Section 3.10, no right or remedy herein conferred upon or reserved
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.4 DELAY OR OMISSION NOT WAIVER.
No delay or omission of any Holder to exercise any right or
remedy upon a default shall impair any such right or remedy or constitute a
waiver of any such right. Every right and remedy given by this Article or by law
to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
SECTION 6.5 UNDERTAKING FOR COSTS.
All parties to this Agreement agree, and each Holder of a Unit,
by its acceptance of such Unit shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Agreement, or in any suit against the 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, or group of Holders, holding in the aggregate more than 10% of the
Outstanding Units, or to any suit instituted by any Holder for the enforcement
of interest on any Debentures on any Purchase Contract on or after the
respective Payment Date therefor in respect of any Unit held by such Holder, or
for enforcement of the right to purchase shares of Common Stock under the
Purchase Contract constituting part of any Unit held by such Holder.
56
SECTION 6.6 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, but will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE VII
THE AGENT
SECTION 7.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) (1) The Agent undertakes to perform, with respect to the
Units and Separate Debentures, such duties and only such duties as are
specifically set forth in this Agreement and the Pledge Agreement, and
no implied covenants or obligations shall be read into this Agreement
against the Agent; and
(2) in the absence of bad faith on its part, the Agent may,
with respect to the Units and Separate Debentures, 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 the mathematical calculations or other facts stated therein).
(b) No provision of this Agreement shall be construed to relieve
the Agent from liability for its own grossly negligent action, its own
grossly negligent failure to act, or its own willful misconduct, except
that:
(1) this paragraph (b) shall not be construed to limit the
effect of paragraph (a) of this Section;
(2) the Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Agent was grossly negligent in ascertaining the
pertinent facts; and
(3) no provision of this Agreement shall require the Agent
to expend or risk its own funds or otherwise incur any financial
liability in
57
the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers.
(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.
(d) The Agent is authorized to execute and deliver the Pledge
Agreement in its capacity as Agent. The Agent shall be entitled to all
of the rights, privileges, immunities and indemnities contained in this
Agreement with respect to any duties of the Agent under, or actions
taken, omitted to be taken or suffered by the Agent pursuant to the
Pledge Agreement.
SECTION 7.2 NOTICE OF DEFAULT.
Within 30 days after the occurrence of any default by the Company
hereunder of which a Responsible Officer of the Agent has actual knowledge, the
Agent shall transmit by mail to the Company and the Holders of Units, as their
names and addresses appear in the Register, notice of such default hereunder,
unless such default shall have been cured or waived.
SECTION 7.3 CERTAIN RIGHTS OF AGENT.
Subject to the provisions of Section 7.1:
(a) the Agent may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably 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 advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection
58
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
execution, delivery and performance of the Purchase Contracts as it may
see fit, and, if the Agent shall determine to make such further inquiry
or investigation, it shall be given a reasonable opportunity to examine
the books, records and premises of the Company, personally or by agent
or attorney;
(f) the Agent may execute any of the powers hereunder or perform
any duties hereunder either directly or by or through agents or
attorneys or an Affiliate of the Agent 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 rights, privileges, protections, immunities and benefits
given to the Agent, including, but not limited to, its right to be
indemnified, are extended to, and shall be enforceable by, the Agent in
each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder;
(h) the Agent shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Agreement;
(i) the Agent shall not be charged with knowledge of any default
by the Company hereunder unless a Responsible Officer shall have
obtained written notice of such default;
(j) in no event shall the Agent be liable for any consequential,
punitive, indirect or special loss or damages of any kind whatsoever
(including but not limited to lost profit), even if the Agent has been
advised of the likelihood of such loss or damage and regardless of the
form of action;
(k) the Agent shall not be responsible or liable for any failure
or delay in the performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances
beyond its reasonable control, including without limitation, acts of
God; earthquakes; fires; floods; wars; civil or military disturbances;
terrorist acts; sabotage; epidemics; riots; interruptions, loss or
malfunctions of utilities, computer (hardware or software) or
communications service; accidents; labor disputes; and acts of civil or
military authority or governmental actions; it being understood that the
Agent shall use reasonable
59
efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable
under the circumstances; and
(l) the Agent may request that the Company deliver a certificate
setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this
Agreement, which certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so
authorized in any such certificate previously delivered and not
superseded.
SECTION 7.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF UNITS.
The recitals contained herein and in the Certificates shall be
taken as the statements of the Company and the Agent assumes no responsibility
for their accuracy. The Agent makes no representations as to the validity or
sufficiency of either this Agreement or of the Units, or of the Pledge Agreement
or the Pledge. The Agent shall not be accountable for the use or application by
the Company of the Units or the proceeds therefrom or in respect of the Purchase
Contracts.
SECTION 7.5 MAY HOLD UNITS.
Any Registrar or any other agent of the Company, or the Agent and
its Affiliates, in their individual or any other capacity, may become the owner
or pledgee of Units and may otherwise deal with the Company, the Collateral
Agent or any other Person with the same rights it would have if it were not
Registrar or such other agent, or the Agent.
SECTION 7.6 MONEY HELD IN CUSTODY.
Money held by the Agent in custody hereunder need not be
segregated from the Agent's other funds except to the extent required by law or
provided herein. The Agent shall be under no obligation to invest or pay
interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.
SECTION 7.7 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;
(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 reasonable expenses
60
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its gross negligence,
bad faith or willful misconduct; and
(c) to indemnify the Agent and any predecessor Agent for, and to
hold it harmless against, any loss, liability or expense incurred
without gross negligence, bad faith or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of
its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
For purposes of this Section 7.7, "Agent" shall include any
predecessor Agent; provided, however, that the negligence, bad faith or willful
misconduct of any Agent hereunder shall not affect the rights of any other Agent
hereunder.
The provisions of this Section 7.7 shall survive the termination
of this Agreement, the satisfaction or discharge of the Units and/or the
Separate Debentures and/or the resignation or removal of the Agent.
SECTION 7.8 CORPORATE AGENT REQUIRED; ELIGIBILITY.
There shall at all times be an Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having (or being a 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
an office or agency in the Borough of Manhattan, The City of New York, if there
be such a corporation, 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 7.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Agent and no appointment of
a successor Agent pursuant to this Article shall become effective until
the acceptance of appointment by the successor Agent in accordance with
the applicable requirements of Section 7.10.
61
(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 Units delivered to the Agent and
the Company.
(d) If at any time:
(1) the Agent fails to comply with Section 310(b) of the
TIA, as if the Agent were an indenture trustee under an indenture
qualified under the TIA, after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Unit for at least six months; or
(2) the Agent shall cease to be eligible under Section 7.8
and shall fail to resign after written request therefor by the
Company or by any such Holder; or
(3) the Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Agent or of
its property shall be appointed or any public officer shall take
charge or control of the Agent or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation;
then, in any such case, (x) the Company by a Board Resolution may remove
the Agent, or (y) any Holder who has been a bona fide Holder of a Unit
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the 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 Unit for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Agent.
62
(f) The Company shall give, or shall cause such successor Agent
to give, notice of each resignation and each removal of the Agent and
each appointment of a successor Agent by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the applicable Register. Each notice shall
include the name of the successor Agent and the address of its Corporate
Trust Office.
SECTION 7.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Agent,
every such successor Agent so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Agent an instrument accepting
such appointment, and thereupon the resignation or removal of the
retiring Agent shall become effective and such successor Agent, without
any further act, deed or conveyance, shall become vested with all the
rights, powers, agencies and duties of the retiring Agent; but, on the
request of the Company or the successor Agent, such retiring Agent
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Agent all the rights, powers and trusts
of the retiring Agent and shall duly assign, transfer and deliver to
such successor Agent all property and money held by such retiring Agent
hereunder.
(b) Upon request of any such successor Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Agent all such rights, powers and
agencies referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the
time of such acceptance such successor Agent shall be qualified and
eligible under this Article.
SECTION 7.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Agent (including the administration of this Agreement), shall be the
successor of the Agent hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Certificates shall have been authenticated and executed on behalf of the
Holders, but not delivered, by the Agent then in office, any successor to such
Agent shall adopt such authentication and execution and deliver the Certificates
so authenticated and executed with the same effect as if such successor Agent
had itself authenticated and executed such Units.
63
SECTION 7.12 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by
the Agent in its capacity as Registrar.
(b) If three or more Holders (herein referred to as "Applicants")
apply in writing to the Agent, and furnish to the Agent reasonable proof
that each such applicant has owned a Unit for a period of at least six
months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders with
respect to their rights under this Agreement or under the Units and is
accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit, then the Agent shall mail to all
the Holders copies of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to
the Agent of the materials to be mailed and of payment, or provision, in
the absence of bad faith, satisfactory to the Agent for the payment, of
the reasonable expenses of such mailing.
SECTION 7.13 NO OBLIGATIONS OF AGENT.
Except to the extent otherwise provided in this Agreement, the
Agent assumes no obligation 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 Unit thereunder. The Company agrees, and each
Holder of a Certificate, by such Holder's acceptance thereof, shall be deemed to
have agreed, that the Agent's execution of the Certificates on behalf of the
Holders shall be solely as agent and attorney-in-fact for the Holders, and that
the Agent shall have no obligation to perform such Purchase Contracts on behalf
of the Holders, except to the extent expressly provided in Article Five.
SECTION 7.14 TAX COMPLIANCE.
(a) The Agent, on its own behalf and on behalf of the Company,
will comply with all applicable certification, information reporting and
withholding (including "backup" withholding) requirements imposed by
applicable tax laws, regulations or administrative practice with respect
to (i) any payments made with respect to the Units or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Units. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment
of all amounts required to be withheld to the appropriate taxing
authority or its designated agent.
(b) The Agent shall comply with any reasonable written direction
timely received from the Company with respect to the execution or
certification of
64
any required documentation and the application of such requirements to
particular payments or Holders or in other particular circumstances, and
may for purposes of this Agreement conclusively rely on any such
direction in accordance with the provisions of Section 7.1(a)(2).
(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 its authorized
representative within a reasonable period of time after receipt of such
request.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
SECTION 8.1 SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Agent, at any
time and from time to time, may enter into one or more agreements
supplemental hereto, in form satisfactory to the Company and the Agent,
for any of the following purposes:
(a) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the Company
herein and in the Certificates; or
(b) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(c) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent; or
(d) to make provision with respect to the rights of Holders
pursuant to the requirements of Section 5.4(b) or 5.8; or
(e) 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.
65
SECTION 8.2 SUPPLEMENTAL AGREEMENTS WITH CONSENT OF HOLDERS.
(a) With the consent of the Holders of not less than a majority
of the outstanding Purchase Contracts voting together as one class, by
Act of said Holders delivered to the Company and the Agent, the Company,
when authorized by a Board Resolution, and the Agent may enter into an
agreement or agreements supplemental hereto for the purpose of modifying
in any manner the terms of the Purchase Contracts, or the provisions of
this Agreement or the rights of the Holders in respect of the Units;
provided, that, except as contemplated herein, no such supplemental
agreement shall, without the consent of the Holder of each Outstanding
Unit affected thereby:
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to
be Pledged to secure a Holder's Obligations under the Purchase
Contract, impair the right of the Holder of any Purchase Contract
to receive distributions on the related Collateral (except for
the rights of Holders of Normal Units to substitute the Treasury
Securities for the Pledged Debentures or Pledged Treasury
Consideration or the rights of holders of Stripped Units to
substitute Debentures or appropriate Treasury Consideration for
the Pledged Treasury Securities) or otherwise adversely affect
the Holder's rights in or to such Collateral or materially
adversely alter the rights in or to such Collateral;
(3) change the place or currency of payment for any amounts
payable in respect of the Units, increase any amounts payable by
Holders in respect of the Units or decrease any other amounts
receivable by Holders in respect of the Units;
(4) impair the right to institute suit for the enforcement
of any Purchase Contract;
(5) reduce the number of shares of Common Stock to be
purchased pursuant to any Purchase Contract, increase the price
to purchase shares of Common Stock upon settlement of any
Purchase Contract, change the Stock Purchase Date or otherwise
adversely affect the Holder's rights under any Purchase Contract;
or
(6) reduce the percentage of the outstanding Purchase
Contracts the consent of whose Holders is required for any such
supplemental agreement;
provided, that if any amendment or proposal referred to above would
adversely affect only the Normal Units or the Stripped Units, then only
the affected class of
66
Holder as of the record date for the Holders entitled to vote thereon
will be entitled to vote on such amendment or proposal, and such
amendment or proposal shall not be effective except with the consent of
Holders of not less than a majority of such class.
(b) It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
agreement, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 8.3 EXECUTION OF SUPPLEMENTAL AGREEMENTS.
In executing, or accepting the additional agencies created by,
any supplemental agreement permitted by this Article or the modifications
thereby of the agencies created by this Agreement, the Agent shall be provided
and (subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Agreement. The Agent may, but shall not be
obligated to, enter into any such supplemental agreement which affects the
Agent's own rights, duties or immunities under this Agreement or otherwise.
SECTION 8.4 EFFECT OF SUPPLEMENTAL AGREEMENTS.
Upon the execution of any supplemental agreement under this
Article, this Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Agreement for all purposes; and
every Holder of Certificates theretofore or thereafter authenticated, executed
on behalf of the Holders and delivered hereunder shall be bound thereby.
SECTION 8.5 REFERENCE TO SUPPLEMENTAL AGREEMENTS.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the 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 Certificates so modified as to
conform, in the opinion of the Agent and the Company, to any such supplemental
agreement may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Agent in exchange for
Outstanding Certificates.
67
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY PROPERTY
EXCEPT UNDER CERTAIN CONDITIONS.
The Company covenants that it will not merge or consolidate with any
other Person in a transaction in which the Company is not the surviving entity
or transfer, lease or convey its properties and assets substantially as an
entirety to any Person or group of affiliated Persons in one transaction or a
series of related transactions, unless (i) the successor (if other than the
Company) shall be a corporation, limited liability company, partnership, trust
or other entity organized and existing under the laws of the United States of
America or a State thereof or the District of Columbia; (ii) such entity shall
expressly assume all the obligations of the Company under the Purchase
Contracts, the Debentures, this Agreement and the Pledge Agreement by one or
more supplemental agreements in form reasonably satisfactory to the Agent and
the Collateral Agent, executed and delivered to the Agent and the Collateral
Agent by such corporation, and (iii) the Company or such successor corporation,
as the case may be, shall not, immediately after such merger or consolidation,
or such transfer, lease or conveyance, be in default in the performance of any
covenant or condition hereunder or under any of the Units or the Pledge
Agreement.
SECTION 9.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
(a) In case of any such consolidation, merger, transfer, lease or
conveyance and upon any such assumption by a successor corporation in
accordance with Section 9.1, such successor corporation shall succeed to
and be substituted for the Company with the same effect as if it had
been named herein as the Company. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Certificates evidencing Units
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Agent; and, upon the order of such
successor corporation, instead of the Company, and subject to all the
terms, conditions and limitations in this Agreement prescribed, the
Agent shall authenticate and execute on behalf of the Holders and
deliver any Certificates which previously shall have been signed and
delivered by the officers of the Company to the Agent for authentication
and execution, and any Certificate evidencing Units which such successor
corporation thereafter shall cause to be signed and delivered to the
Agent for that purpose. All the Certificates so issued shall in all
respects have the same legal rank and benefit under this Agreement as
the Certificates theretofore or thereafter issued in accordance with the
terms of this Agreement as though all of such Certificates had been
issued at the date of the execution hereof.
68
(b) In case of any such consolidation, merger, transfer, lease or
conveyance such change in phraseology and form (but not in substance)
may be made in the Certificates evidencing Units thereafter to be issued
as may be appropriate.
SECTION 9.3 OPINION OF COUNSEL GIVEN TO AGENT.
The Agent, subject to Sections 7.1 and 7.3, shall receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, assignment, transfer, lease or conveyance, and any such assumption,
complies with the provisions of this Article and that all conditions precedent
to the consummation of any such consolidation, merger, sale, assignment,
transfer, lease or conveyance have been met.
ARTICLE X
COVENANTS
SECTION 10.1 PERFORMANCE UNDER PURCHASE CONTRACTS.
The Company covenants and agrees for the benefit of the Holders
from time to time of the Units that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company will maintain in the Borough of Manhattan, The
City of New York an office or agency where Certificates may be presented
or surrendered for acquisition of shares of Common Stock upon settlement
of the Purchase Contracts on any Settlement Date and for transfer of
Collateral upon occurrence of a Termination Event, where Certificates
may be surrendered for registration of transfer or exchange, for a
Collateral Substitution or reestablishment of Normal Units and where
notices and demands to or upon the Company in respect of the Units and
this Agreement may be served. The Company will give prompt written
notice to the 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.
(b) The Company may also from time to time designate one or more
other offices or agencies where Certificates may be presented or
surrendered for any or all such purposes and may from time to time
rescind such designations; provided, that no such designation or
rescission shall in any manner relieve the
69
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 one place of payment for the
Units the Corporate Trust Office and appoints State Street Bank and
Trust Company, N.A., an Affiliate of the Agent, at its corporate trust
office as co-paying agent in such city.
SECTION 10.3 COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times prior to the Stock Purchase Date
reserve and keep available, free from preemptive rights, out of its authorized
but unissued Common Stock the full number of shares of Common Stock issuable
against tender of payment in respect of all Purchase Contracts constituting a
part of the Units evidenced by Outstanding Certificates.
SECTION 10.4 COVENANTS AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock which may
be issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Units will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
SECTION 10.5 STATEMENTS OF OFFICER 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
signer 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 such Officer may have knowledge.
70
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
SOLECTRON CORPORATION
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President,
Chief Financial Officer
(Principal Financial and
Accounting Officer)
STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N.A.,
as Purchase Contract Agent
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
71
EXHIBIT A
FORM OF NORMAL UNITS CERTIFICATE
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN
THE NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT
BE EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER
OF THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) to the Company or its agent for registration of transfer, exchange or
payment, and any Certificate issued is registered in the name of Cede & Co., or
such other name as requested by an authorized representative of The Depository
Trust Company, and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
(Form of Face of Normal Units Certificate)
No. __ CUSIP No. 000000000
Number of Normal Units _________________
This Normal Units Certificate certifies that ______________ is
the registered Holder of the number of Normal Units set forth above. Each Normal
Unit represents (i) either (a) beneficial ownership by the Holder of one 7.25%
Subordinated Debenture due 2006 (the "Debenture") of Solectron Corporation, a
Delaware corporation (the "Company"), having a principal amount of $25, subject
to the Pledge of such Debenture by such Holder pursuant to the Pledge Agreement,
or (b) if a Tax Event Redemption has occurred or the Debenture has been
remarketed by the Remarketing Agent (or if the Holder has elected not to have
the Debenture remarketed by delivering the appropriate Treasury Consideration
specified by the Remarketing Agent), the appropriate Treasury Consideration,
subject to the Pledge of such Treasury Consideration by such Holder pursuant to
the Pledge Agreement, and (ii) the rights and obligations of the Holder under
one Purchase Contract with the Company. All capitalized terms used herein which
are defined in the Purchase Contract Agreement have the meaning set forth
therein.
Pursuant to the Pledge Agreement, the Debenture or the
appropriate Treasury Consideration, as the case may be, constituting part of
each Normal Unit evidenced hereby has been pledged to the Collateral Agent, for
the benefit of the
A-1
Company, to secure the obligations of the Holder under the Purchase Contract
comprising a part of such Normal Unit.
The Pledge Agreement provides that all payments in respect of the
Pledged Debentures or Pledged Treasury Consideration received by the Collateral
Agent shall be paid by the Collateral Agent by wire transfer in same day funds
(i) in the case of (A) quarterly cash distributions on Normal Units which
include Pledged Debentures or Pledged Treasury Consideration and (B) any
payments in respect of the Debentures or Treasury Consideration, as the case may
be, that have been released from the Pledge pursuant to the Pledge Agreement, to
the Agent to the account designated by the Agent, no later than 12:00 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 9:00 a.m., New York City
time, on a Business Day, then such payment shall be made no later than 9:30
a.m., New York City time, on the next succeeding Business Day) and (ii) in the
case of payments in respect of any Pledged Debentures or Pledged Treasury
Consideration, as the case may be, to be paid upon settlement of such Holder's
obligations to purchase Common Stock under the Purchase Contract, to the Company
on the Stock Purchase Date (as defined herein) in accordance with the terms of
the Pledge Agreement, in full satisfaction of the respective obligations of the
Holders of the Normal Units of which such Pledged Debentures or Pledged Treasury
Consideration, as the case may be, are a part under the Purchase Contracts
forming a part of such Normal Units. Quarterly distributions on Normal Units
which include Pledged Debentures or Pledged Treasury Consideration, as the case
may be, which are payable quarterly in arrears on February 15, May 15, August 15
and November 15, each year, commencing February 15, 2002 (a "Payment Date"),
shall, subject to receipt thereof by the Agent from the Collateral Agent, be
paid to the Person in whose name this Normal Units Certificate (or a Predecessor
Normal Units Certificate) is registered at the close of business on the Record
Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of
this Normal Units Certificate to purchase, and the Company to sell, on November
15, 2004 (the "Stock Purchase Date"), at a price equal to $25 (the "Stated
Amount"), a number of shares of Common Stock, $0.001 par value per share
("Common Stock"), of the Company, equal to the Settlement Rate, unless on or
prior to the Stock Purchase Date there shall have occurred a Termination Event
or an Early Settlement or Merger Early Settlement (and the Holder has exercised
its option to settle the Purchase Contract on the Merger Early Settlement Date)
with respect to the Normal Units 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 (as defined herein) for the shares of Common
Stock purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Stock Purchase Date by application of payments
received in respect of the Pledged Debentures or the Pledged Treasury
Consideration, as the case may be, pledged to secure the obligations of the
Holder under such Purchase Contract.
A-2
Payments on the Debentures or the appropriate Treasury
Consideration, as the case may be, will be payable at the office or agency 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 Normal Units Register or by wire transfer to an account specified by the
Company.
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 Normal Units Certificate shall not be
entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
SOLECTRON CORPORATION
By:
-----------------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations of
such Holder under the Purchase Contracts
evidenced hereby)
By: STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.,
not individually but solely as
Attorney-in-Fact of such Holder
By:
-------------------------------
Name:
Title:
A-4
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Normal Units Certificates referred to in the
within mentioned Purchase Contract Agreement.
STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N.A.,
as Purchase Contract Agent
Dated: By:
---------------------- -------------------------------
Authorized Signatory
A-5
(Form of Reverse of Normal Units Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of December 27, 2001 (as may be supplemented from
time to time, the "Purchase Contract Agreement"), between the Company and State
Street Bank and Trust Company of California, N.A., as Purchase Contract Agent
(including its successors thereunder, herein called the "Agent"), to which
Purchase Contract Agreement and supplemental agreements thereto reference is
hereby made for a description of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Agent, the Company, and the
Holders and of the terms upon which the Normal Units Certificates are, and are
to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of
this Normal Units Certificate to purchase, and the Company to sell, on the Stock
Purchase Date at a price equal to $25 (the "Purchase Price"), a number of shares
of Common Stock of the Company equal to the Settlement Rate, unless, on or prior
to the Stock Purchase Date, there shall have occurred a Termination Event or an
Early Settlement or Merger Early Settlement (and the Holder has exercised its
option to settle the Purchase Contract on the Merger Early Settlement Date) with
respect to the Unit of which such Purchase Contract is a part. The "Settlement
Rate" is equal to (a) if the Applicable Market Value (as defined below) is equal
to or greater than $11.58 (the "Threshold Appreciation Price"), 2.1597 shares of
Common Stock per Purchase Contract, (b) if the Applicable Market Value is less
than the Threshold Appreciation Price but is greater than $9.81, the number of
shares of Common Stock per Purchase Contract equal to the Stated Amount divided
by the Applicable Market Value and (c) if the Applicable Market Value is equal
to or less than $ 9.81, 2.5484 shares of Common Stock per Purchase Contract, in
each case subject to adjustment as provided in the Purchase Contract Agreement.
No fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts, as provided in the Purchase Contract Agreement.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on, if applicable, each of the 20 consecutive
Trading Days ending on the third Trading Day immediately preceding the Stock
Purchase Date (or, in the event of a Cash Merger contemplated by Section 5.8,
ending on the third Trading Day immediately preceding the date of the
consummation of the Cash Merger).
The "Closing Price" of the Common Stock on any date of
determination means the closing sale price (or, if no closing price is reported,
the last reported sale price) of the Common Stock on the New York Stock Exchange
(the "NYSE") on such date or, if the Common Stock is not listed for trading on
the NYSE on any such date, as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, or if the Common Stock is not so listed on a United States national or
regional securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Stock is not so reported, the last quoted bid price for the Common Stock
in the over-the-counter market as reported by the National Quotation Bureau or
similar organization, or, if such bid price is not available, the market value
of
A-6
the Common Stock on such date as determined by a nationally recognized
independent investment banking firm retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Purchase Contract evidenced hereby may be settled prior to
the Stock Purchase Date through Early Settlement or Merger Early Settlement, in
accordance with the terms of the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement,
the Holder of this Normal Units Certificate shall pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby (i) by effecting an Early Settlement or Merger Early Settlement, (ii) by
application of payments received in respect of the Pledged Treasury
Consideration acquired from the proceeds of a remarketing of the related Pledged
Debentures underlying the Normal Units represented by this Normal Units
Certificate or (iii) if the Holder has elected not to participate in the
remarketing, by application of payments received in respect of the Pledged
Treasury Consideration deposited by such Holder in respect of such Purchase
Contract. If, as provided in the Purchase Contract Agreement, upon the
occurrence of a Last Failed Remarketing the Collateral Agent, for the benefit of
the Company, exercises its rights as a secured creditor with respect to the
Pledged Debentures related to this Normal Units Certificate, any accrued and
unpaid interest on such Pledged Debentures will become payable by the Company to
the Holder of this Normal Units Certificate in the manner provided for in the
Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates therefor to
the Holder unless it shall have received payment in full of the aggregate
Purchase Price for the shares of Common Stock to be purchased thereunder in the
manner herein set forth.
Under the terms of the Pledge Agreement, the Agent will be
entitled to exercise the voting and any other consensual rights pertaining to
the Pledged Debentures. Upon receipt of notice of any meeting at which holders
of Debentures are entitled to vote or upon the solicitation of consents, waivers
or proxies of holders of Debentures, the Agent shall, as soon as practicable
thereafter, mail to the Holders of Normal Units a notice (a) containing such
information as is contained in the notice or solicitation, (b) stating that each
such Holder on the record date set by the Agent therefor (which, to the extent
possible, shall be the same date as the record date for determining the holders
of Debentures entitled to vote) shall be entitled to instruct the Agent as to
the exercise of the voting rights pertaining to the Pledged Debentures
constituting a part of such Holder's Normal Units and (c) stating the manner in
which such instructions may be given. Upon the written request of the Holders of
Normal Units on such record date, the Agent shall
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endeavor insofar as practicable to vote or cause to be voted, in accordance with
the instructions set forth in such requests, the maximum number of Pledged
Debentures as to which any particular voting instructions are received. In the
absence of specific instructions from the Holder of a Normal Unit, the Agent
shall abstain from voting the Pledged Debenture evidenced by such Normal Unit.
Upon the occurrence of a Tax Event Redemption prior to the Stock
Purchase Date, pursuant to the terms of the Pledge Agreement, the Collateral
Agent will apply, out of the aggregate Redemption Price for the Debentures that
are components of Normal Units, an amount equal to the aggregate Redemption
Amount for Debentures that are components of Normal Units to purchase on behalf
of Holders of Normal Units, the Redemption Treasury Portfolio and, promptly
remit the remaining portion of such Redemption Price to the Agent for payment to
the Holders of such Normal Units.
Following the occurrence of a Tax Event Redemption prior to the Stock
Purchase Date, the Holders of Normal Units and the Collateral Agent shall have
such security interests rights and obligations with respect to the Redemption
Treasury Portfolio as the Holder of Normal Units and the Collateral Agent had in
respect of the Debentures, as the case may be, subject to the Pledge thereof as
provided in Articles II, III, IV, V and VI, of the Pledge Agreement and any
reference herein to the Debentures shall be deemed to be reference to such
Redemption Treasury Portfolio and any reference herein or in the Certificates to
interest on the Debentures shall be deemed to be a reference to corresponding
distributions on the Redemption Treasury Portfolio.
The Normal Units Certificates are issuable only in registered form and
only in denominations of a single Normal Unit and any integral multiple thereof.
The transfer of any Normal Units Certificate will be registered and Normal Units
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The Normal Units 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. The Holder of a Normal Unit may substitute for
the Pledged Debentures or Pledged Treasury Consideration securing its
obligations under the related Purchase Contract Treasury Securities in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement. From and after such Collateral Substitution, the Unit for which such
Pledged Treasury Securities secures the Holder's obligation under the Purchase
Contract shall be referred to as a "Stripped Unit." A Holder that elects to
substitute a Treasury Security for Pledged Debentures or Pledged Treasury
Consideration, thereby creating Stripped Units, shall be responsible for any
fees or expenses payable in connection therewith. Except as provided in the
Purchase Contract Agreement, for so long as the Purchase Contract underlying a
Normal Unit remains in effect, such Normal Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Normal
Units in respect of the Pledged Debenture or Pledged Treasury Consideration, as
the case may be, and Purchase Contract
A-8
constituting such Normal Unit may be transferred and exchanged only as a Normal
Unit.
A Holder of Stripped Units may reestablish Normal Units by
delivering to the Collateral Agent Debentures or the appropriate Treasury
Consideration in exchange for the release of the Pledged Treasury Securities in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
and obligations of the Holders to purchase Common Stock, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Agent or the Company, if, on or prior to the Stock Purchase Date, a
Termination Event shall have occurred. Upon the occurrence of a Termination
Event, the Company shall promptly but in no event later than two Business Days
thereafter give written notice to the Agent, the Collateral Agent and to the
Holders, at their addresses as they appear in the Normal Units Register. Upon
and after the occurrence of a Termination Event, the Collateral Agent shall
release the Pledged Debentures or Pledged Treasury Consideration, as the case
may be, from the Pledge in accordance with the provisions of the Pledge
Agreement.
Upon registration of transfer of this Normal Units Certificate,
the transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the 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 Normal Units
Certificate. The Company covenants and agrees, and the Holder, by its acceptance
hereof, likewise covenants and agrees, to be bound by the provisions of this
paragraph.
The Holder of this Normal Units Certificate, by its acceptance
hereof, authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Normal Units 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
such Holder's 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 such Holder's behalf as
attorney-in-fact, and consents to the Pledge of the Debentures or the
appropriate Treasury Consideration, as the case may be, underlying this Normal
Units Certificate pursuant to the Pledge Agreement. The Holder further covenants
and agrees, that, to the extent and in the manner provided in the Purchase
Contract Agreement and the Pledge Agreement, but subject to the terms thereof,
payments in respect of the Pledged Debentures or the Pledged Treasury
Consideration, as the case may be, to be paid upon settlement of such Holder's
obligations to purchase Common Stock under the Purchase Contract, shall be paid
on the Stock Purchase Date by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Purchase Contract and such
Holder shall acquire
A-9
no right, title or interest in such payments. The obligations of each Holder to
pay the Purchase Price are non-recourse obligations and except to the extent
paid by Early Settlement or Merger Early Settlement, are payable solely out of
the proceeds of any Collateral pledged to secure the obligations of the Holders
and in no event will Holders be liable for any deficiency between such payments
and the Purchase Price.
Each Holder of any Unit, and each Beneficial Owner thereof, by
its acceptance thereof or of its interest therein, further agrees to treat (i)
itself as the owner of the related Debentures, Treasury Consideration or
Treasury Securities, as the case may be, and (ii) the Debentures as indebtedness
of the Company, in each case, for all tax purposes.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of a majority
of the Purchase Contracts.
The Purchase Contracts shall 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 Normal Units
Certificate is registered as the owner of the Normal Units evidenced hereby for
the purpose of receiving quarterly payments on the Debentures or the Treasury
Consideration, as the case may be, 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, such Affiliates 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.
A-10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
--------------------------------
(cust) (minor)
Under Uniform Gifts to Minors Act
--------------------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
Additional abbreviations may also be used though not in the above list.
A-11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)_______________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Normal Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ____________________________ attorney to
transfer said Normal Units Certificates on the books of Solectron Corporation
with full power of substitution in the premises.
Dated: ________________ Signature: ______________________________
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within
Normal Units Certificates in every
particular, without alteration or
enlargement or any change whatsoever.
Signature Guarantee: ___________________________________________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-12
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after the Stock Purchase Date of
the Purchase Contracts underlying the number of Normal Units evidenced by this
Normal Units Certificate be registered in the name of, and delivered, together
with a check in payment for any fractional share, to the undersigned at the
address indicated below unless a different name and address have been indicated
below. If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated: _________________ Signature: _______________________________
Signature Guarantee: _____________________
(if assigned to another person)
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
If shares are to be registered in REGISTERED HOLDER
the name of and delivered to a
Person other than the Holder, please Please print name and address of
(i) print such Person's name and Registered Holder:
address and (ii) provide a guarantee
of your signature:
____________________________________ _______________________________________
Name Name
____________________________________ _______________________________________
Address Address
Social Security or other Taxpayer Identification
Number, if any
A-13
ELECTION TO SETTLE EARLY
The undersigned Holder of this Normal Units Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Normal Units evidenced by this Normal Units
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Normal Units with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Normal Units Certificate representing any Normal Units evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Debentures or Pledged Treasury Consideration,
as the case may be, deliverable upon such Early Settlement will be transferred
in accordance with the transfer instructions set forth below. If shares are to
be registered in the name of a Person other than the undersigned, the
undersigned will pay any transfer tax payable incident thereto.
Dated: __________________ Signature:_____________________________
Signature Guarantee: ______________ Signature Guarantee: __________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Number of Units evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock are to be REGISTERED HOLDER
registered in the name of and Please print name and address of
delivered to and Pledged Debentures, Registered Holder:
or Pledged Treasury Consideration,
as the case may be, are to be
transferred to a Person other than
the Holder, please print such
Person's name and address:
____________________________________ _______________________________________
Name Name
____________________________________ _______________________________________
Address Address
A-14
Social Security or other Taxpayer
Identification Number, if any
Transfer instructions for Pledged Debentures, or Pledged Treasury Consideration,
as the case may be, transferable upon Early Settlement or a Termination Event:
A-15
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate
have been made:
STATED AMOUNT
AMOUNT OF AMOUNT OF OF THE GLOBAL
DECREASE IN INCREASE IN CERTIFICATE SIGNATURE OF
STATED AMOUNT STATED AMOUNT FOLLOWING SUCH AUTHORIZED
OF THE GLOBAL OF THE GLOBAL DECREASE OR SIGNATORY OF
DATE CERTIFICATE CERTIFICATE INCREASE AGENT
----------------- ------------- ------------- --------------- ------------
A-16
EXHIBIT B
FORM OF STRIPPED UNITS CERTIFICATE
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE PURCHASE CONTRACT AGREEMENT (AS HEREINAFTER DEFINED) AND IS REGISTERED IN
THE NAME OF A CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF
THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
Unless this Certificate is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) to the Company or its agent for registration of transfer, exchange or
payment, and any Certificate issued is registered in the name of Cede & Co., or
such other name as requested by an authorized representative of The Depository
Trust Company, and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
Form of Face of Stripped Units Certificate
No. ___ CUSIP No. 000000000
Number of Stripped Units ____________
This Stripped Units Certificate certifies that Cede & Co. is the
registered Holder of the number of Stripped Units set forth above. Each Stripped
Unit represents (i) a 1/40 undivided beneficial ownership interest in a Treasury
Security, subject to the Pledge of such interest in such Treasury Security by
such Holder pursuant to the Pledge Agreement, and (ii) the rights and
obligations of the Holder under one Purchase Contract with Solectron
Corporation, a Delaware corporation (the "Company"). All capitalized terms used
herein which are defined in the Purchase Contract Agreement have the meaning set
forth therein.
Pursuant to the Pledge Agreement, the Treasury Security
constituting part of each Stripped Unit evidenced hereby has been pledged to the
Collateral Agent, for the benefit of the Company, to secure the obligations of
the Holder under the Purchase Contract comprising a part of such Stripped Unit.
Each Purchase Contract evidenced hereby obligates the Holder of
this Stripped Units Certificate to purchase, and the Company to sell, on
November 15, 2004 (the "Stock Purchase Date"), at a price equal to $25 (the
"Stated Amount"), a number of
B-1
shares of Common Stock, $0.001 par value per share ("Common Stock"), of the
Company, equal to the Settlement Rate, unless on or prior to the Stock Purchase
Date there shall have occurred a Termination Event or an Early Settlement or
Merger Early Settlement (and the Holder has exercised its option to settle the
Purchase Contract on the Merger Early Settlement Date) with respect to the
Stripped Units 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 (as defined herein) for the shares of Common Stock purchased
pursuant to each Purchase Contract evidenced hereby, if not paid earlier, shall
be paid on the Stock Purchase Date by application of payments received in
respect of the Pledged Treasury Securities pledged to secure the obligations
under such Purchase Contract in accordance with the terms of the Pledge
Agreement.
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 Stripped Units Certificate shall not be
entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
SOLECTRON CORPORATION
By: ____________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations of
such Holder under the Purchase Contracts)
By: STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A., not
individually but solely as
Attorney-in-Fact of such Holder
By:_________________________________
Name:
Title:
B-3
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Stripped Units referred to in the
within-mentioned Purchase Contract Agreement.
STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N.A. ,
as Purchase Contract Agent
Dated: ___________________ By: ______________________________
Authorized Signatory
B-4
(Reverse of Stripped Units Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of December 27, 2001 (as may be supplemented from
time to time, the "Purchase Contract Agreement"), between the Company and State
Street Bank and Trust Company of California, N.A., as Purchase Contract Agent
(including its successors thereunder, herein called the "Agent"), to which the
Purchase Contract Agreement and supplemental agreements thereto reference is
hereby made for a description of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Agent, the Company and the
Holders and of the terms upon which the Stripped Units Certificates are, and are
to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of
this Stripped Units Certificate to purchase, and the Company to sell, on the
Stock Purchase Date at a price equal to $25 (the "Purchase Price"), a number of
shares of Common Stock of the Company equal to the Settlement Rate, unless, on
or prior to the Stock Purchase Date, there shall have occurred a Termination
Event or an Early Settlement or Merger Early Settlement (and the Holder has
exercised its option to settle the Purcahse Contract on the Merger Early
Settlement Date) with respect to the Unit of which such Purchase Contract is a
part. The "Settlement Rate" is equal to (a) if the Applicable Market Value (as
defined below) is equal to or greater than $11.58 (the "Threshold Appreciation
Price"), 2.1597 shares of Common Stock per Purchase Contract, (b) if the
Applicable Market Value is less than the Threshold Appreciation Price but is
greater than $9.81, the number of shares of Common Stock per Purchase Contract
equal to the Stated Amount divided by the Applicable Market Value and (c) if the
Applicable Market Value is equal to or less than $ 9.81, 2.5484 shares of Common
Stock per Purchase Contract, in each case subject to adjustment as provided in
the Purchase Contract Agreement. No fractional shares of Common Stock will be
issued upon settlement of Purchase Contracts, as provided in the Purchase
Contract Agreement.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on, if applicable, each of the 20 consecutive
Trading Days ending on the third Trading Day immediately preceding the Stock
Purchase Date (or, in the event of a Cash Merger contemplated by Section 5.8,
ending on the third Trading Day immediately preceding the date of the
consummation of the Cash Merger).
The "Closing Price" of the Common Stock on any date of
determination means the closing sale price (or, if no closing price is reported,
the last reported sale price) of the Common Stock on the New York Stock Exchange
(the "NYSE") on such date or, if the Common Stock is not listed for trading on
the NYSE on any such date, as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, or if the Common Stock is not so listed on a United States national or
regional securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Stock is not so reported, the last quoted bid price for the Common Stock
in the over-the-counter market as reported by the National Quotation
B-5
Bureau or similar organization, or, if such bid price is not available, the
market value of the Common Stock on such date as determined by a nationally
recognized independent investment banking firm retained for this purpose by the
Company.
A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Purchase Contract evidenced hereby may be settled prior to
the Stock Purchase Date through Early Settlement or Merger Early Settlement, in
accordance with the terms of the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement,
the Holder of this Stripped Units Certificate shall pay the Purchase Price for
the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby (i) by effecting an Early Settlement or Merger Early Settlement
or (ii) by application of payments received in respect of the Pledged Treasury
Securities underlying the Stripped Units represented by this Stripped Units
Certificate.
The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates therefor to
the Holder unless it shall have received payment in full of the aggregate
Purchase Price for the shares of Common Stock to be purchased thereunder in the
manner herein set forth.
The Stripped Units Certificates are issuable only in registered form and only in
denominations of a single Stripped Unit and any integral multiple thereof. The
transfer of any Stripped Units Certificate will be registered and Stripped Units
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The Stripped Units 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. The Holder of a Stripped Unit may substitute
for the Pledged Treasury Securities securing its obligations under the related
Purchase Contract Debentures or the appropriate Treasury Consideration in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement. From and after such substitution, the Unit for which such Pledged
Debentures or Pledged Treasury Consideration secures the Holder's obligation
under the Purchase Contract shall be referred to as a "Normal Unit." A Holder
that elects to substitute Debentures or the appropriate Treasury Consideration,
as the case may be, for Pledged Treasury Securities, thereby reestablishing
Normal Units, shall be responsible for any fees or expenses payable in
connection therewith. Except as provided in the Purchase Contract Agreement, for
so long as the Purchase Contract underlying a Stripped Unit remains in effect,
such
B-6
Stripped Unit shall not be separable into its constituent parts, and the rights
and obligations of the Holder of such Stripped Unit in respect of the Pledged
Treasury Security and the Purchase Contract constituting such Stripped Unit may
be transferred and exchanged only as a Stripped Unit.
A Holder of Stripped Units may reestablish Normal Units by
delivering to the Collateral Agent Debentures or the appropriate Treasury
Consideration in exchange for the release of the Pledged Treasury Securities in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
and obligations of Holders to purchase Common Stock, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Agent or the Company, if, on or prior to the Stock Purchase Date, a
Termination Event shall have occurred. Upon the occurrence of a Termination
Event, the Company shall promptly but in no event later than two business days
thereafter give written notice to the Agent, the Collateral Agent and to the
Holders, at their addresses as they appear in the Stripped Units Register. Upon
and after the occurrence of a Termination Event, the Collateral Agent shall
release the Pledged Treasury Securities from the Pledge in accordance with the
provisions of the Pledge Agreement.
Upon registration of transfer of this Stripped Units Certificate,
the transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the 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 Stripped
Units 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 Stripped Units Certificate, by his acceptance
hereof, authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Stripped Units evidenced hereby on his behalf as
its attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
such Holder's 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 such Holder's behalf as
attorney-in-fact, and consents to the Pledge of the Treasury Securities
underlying this Stripped Units Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect of the Pledged Treasury
Securities, to be paid upon settlement of
B-7
such Holder's obligations to purchase Common Stock under the Purchase Contract,
shall be paid on the Stock Purchase Date 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. The
obligations of each Holder to pay the Purchase Price are non-recourse
obligations and except to the extent paid by Early Settlement or Merger Early
Settlement, are payable solely out of the proceeds of any Collateral pledged to
secure the obligations of the Holders and in no event will Holders be liable for
any deficiency between such payments and the Purchase Price.
Each Holder of any Unit, and each Beneficial Owner thereof, by
its acceptance thereof or of its interest therein, further agrees to treat (i)
itself as the owner of the related Debentures, Treasury Consideration or
Treasury Securities, as the case may be, and (ii) the Debentures as indebtedness
of the Company, in each case, for all tax purposes.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of a majority
of the Purchase Contracts.
The Purchase Contracts shall 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 Stripped Units
Certificate is registered as the owner of the Stripped Units evidenced hereby
for the purpose of 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, such Affiliate, 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.
B-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
__________________________________
(cust) (minor)
Under Uniform Gifts to Minors Act
__________________________________
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
Additional abbreviations may also be used though not in the above list.
B-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee) ______________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Stripped Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing___________________attorney to transfer
said Stripped Units Certificates on the books of Solectron Corporation with full
power of substitution in the premises.
Dated: _________________ Signature: ____________________________
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of the
within Stripped Units Certificates in
every particular, without alteration or
enlargement or any change whatsoever.
Signature Guarantee: ___________________________________________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
B-10
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on or after the Stock Purchase Date of
the Purchase Contracts underlying the number of Stripped Units evidenced by this
Stripped Units Certificate be registered in the name of, and delivered, together
with a check in payment for any fractional share, to the undersigned at the
address indicated below unless a different name and address have been indicated
below. If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated: Signature:_______________________
-------------------
Signature Guarantee:_____________
(if assigned to another person)
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
If shares are to be registered in REGISTERED HOLDER
the name of and delivered to a
Person other than the Holder, please Please print name and address of
(i) print such Person's name and Registered Holder:
address and (ii) provide a guarantee
of your signature:
____________________________________ _______________________________________
Name Name
____________________________________ _______________________________________
Address Address
Social Security or other Taxpayer
Identification Number, if any
B-11
ELECTION TO SETTLE EARLY
The undersigned Holder of this Stripped Units Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Stripped Units evidenced by this Stripped
Units Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Stripped Units with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Stripped Units Certificate representing any Stripped Units evidenced hereby as
to which Early Settlement of the related Purchase Contracts is not effected, to
the undersigned at the address indicated below unless a different name and
address have been indicated below. Pledged Treasury Securities deliverable upon
such Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: __________________ Signature: _______________________________
Signature Guarantee: _____________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Number of Units evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock are to be REGISTERED HOLDER
registered in the name of and
delivered to and Pledged Treasury Please print name and address of
Securities are to be transferred to Registered Holder:
a Person other than the Holder,
please print such Person's name and
address:
____________________________________ _______________________________________
Name Name
____________________________________ _______________________________________
Address Address
Social Security or other Taxpayer
Identification Number, if any
B-12
Transfer instructions for Pledged Treasury Securities, transferable upon Early
Settlement or a Termination Event:
B-13
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate
have been made:
STATED AMOUNT
AMOUNT OF AMOUNT OF OF THE GLOBAL
DECREASE IN INCREASE IN CERTIFICATE SIGNATURE OF
STATED AMOUNT STATED AMOUNT FOLLOWING SUCH AUTHORIZED
OF THE GLOBAL OF THE GLOBAL DECREASE OR SIGNATORY OF
DATE CERTIFICATE CERTIFICATE INCREASE AGENT
---------------- ------------- ------------- --------------- ------------
B-14
EXHIBIT C
INSTRUCTION FROM PURCHASE CONTRACT AGENT TO
COLLATERAL AGENT
U.S. Bank, N.A.
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attn: Corporate Trust Services/Xxxxx Xxxxxx
[Addressee]
Attention:
Re: Equity Security Units of Solectron Corporation (the "Company")
We hereby notify you in accordance with Section 4.1 of the Pledge
Agreement, dated as of December 27, 2001, among the Company, you, as Collateral
Agent, Custodial Agent and Securities Intermediary, and us, as Purchase Contract
Agent and as attorney-in-fact for the holders of [Normal Units] [Stripped Units]
from time to time, that the holder of securities listed below (the "Holder") has
elected to substitute [$ _______ aggregate principal amount of Treasury
Securities (CUSIP No. _____)] [$_______ principal amount of Debentures or the
appropriate Treasury Consideration, as the case may be,] in exchange for the
related [Pledged Debentures or Pledged Treasury Consideration, as the case may
be (CUSIP No. ____),] [Pledged Treasury Securities] held by you in accordance
with the Pledge Agreement and has delivered to us a notice stating that the
Holder has transferred [Treasury Securities] [Debentures or the appropriate
Treasury Consideration, as the case may be,] to you, as Collateral Agent. We
hereby instruct you, upon receipt of such [Pledged Treasury Securities] [Pledged
Debentures or Pledged Treasury Consideration, as the case may be], and upon the
payment by such Holder of any applicable fees, to release the [Debentures or
Treasury Consideration, as the case may be,] [Treasury Securities] related to
such [Normal Units] [Stripped Units] to us in accordance with the Holder's
instructions.
Date: __________________
STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N.A.,
As Purchase Contract Agent under the Purchase
Contract Agreement, dated as of December 27,
2001, between the Company and the Purchase
Contract Agent
By: ____________________________
C-1
Name:
Title:
C-2
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Debentures or Pledged Treasury Consideration, as the case
may be,] for the [Pledged Debentures or Pledged Treasury Consideration, as the
case may be,] [Pledged Treasury Securities]:
Name
Address
Social Security or other Taxpayer
Identification Number, if any
C-3
EXHIBIT D
INSTRUCTION TO PURCHASE CONTRACT AGENT
State Street Bank and Trust Company of California, N.A.
000 Xxxx 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Corporate Trust Administration
(Solectron Corporation 2001 Pledge Agreement)
Re: Equity Security Units of Solectron Corporation (the "Company")
The undersigned Holder hereby notifies you, as Purchase Contract
Agent under the Purchase Contract Agreement, dated as of December 27, 2001,
between the Company and you, that it has delivered to U.S. Bank, N.A., as
Collateral Agent, Custodial Agent and Securities Intermediary [$_________
aggregate principal amount of Treasury Securities] [$_________ principal amount
of Debentures or the appropriate Treasury Consideration, as the case may be,] in
exchange for the related [Pledged Debentures or Pledged Treasury Consideration
as the case may be,] [Pledged Treasury Securities] held by the Collateral Agent,
in accordance with Section 4.1 of the Pledge Agreement, dated as of December 27,
2001, among you, the Company and the Collateral Agent. The undersigned Holder
has paid the Collateral Agent all applicable fees relating to such exchange. The
undersigned Holder hereby instructs you to instruct the Collateral Agent to
release to you on behalf of the undersigned Holder the [Pledged Debentures or
Pledged Treasury Consideration, as the case may be,] [Pledged Treasury
Securities] related to such [Normal Units] [Stripped Units].
Date:
By: ___________________________________
Signature Guarantee: __________________
Dated:
Please print name and address of Registered Holder:
Name Social Security or other Taxpayer
Identification Number, if any
Address
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature
D-1
guarantee program" as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
D-2
