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INGERSOLL-RAND COMPANY
AND
__________________________________,
AS PURCHASE CONTRACT AGENT
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PURCHASE CONTRACT AGREEMENT
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DATED AS OF MARCH ___, 1998
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TABLE OF CONTENTS
Page
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE I
Definitions and Other Provisions
of General Applications . . . . . . . . . . . 5
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . 5
Section 1.2. Compliance Certificates and Opinions . . . . . 13
Section 1.3. Form of Documents Delivered to Agent . . . . . 14
Section 1.4. Acts of Holders; Record Dates . . . . . . . . . 15
Section 1.5. Notices . . . . . . . . . . . . . . . . . . . . 16
Section 1.6. Notice to Holders; Waiver . . . . . . . . . . . 17
Section 1.7. Effect of Headings and Table of Contents . . . 17
Section 1.8. Successors and Assigns . . . . . . . . . . . . 17
Section 1.9. Separability Clause . . . . . . . . . . . . . . 17
Section 1.10. Benefits of Agreement . . . . . . . . . . . . . 17
Section 1.11. Governing Law . . . . . . . . . . . . . . . . . 18
Section 1.12. Legal Holidays . . . . . . . . . . . . . . . . 18
Section 1.13. Counterparts . . . . . . . . . . . . . . . . . 18
Section 1.14. Inspection of Agreement . . . . . . . . . . . . 18
ARTICLE II
Certificate Forms . . . . . . . . . . . . 18
Section 2.1. Forms of Certificates Generally . . . . . . . . 18
Section 2.2. Form of Agent's Certificate of
Authentication . . . . . . . . . . . . . . . . 19
ARTICLE III
The Securities . . . . . . . . . . . . . 20
Section 3.1. Title and Terms; Denominations . . . . . . . . 20
Section 3.2. Rights and Obligations Evidenced by the
Certificates . . . . . . . . . . . . . . . . 20
Section 3.3. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . 21
Section 3.4. Temporary Certificates . . . . . . . . . . . . 21
Section 3.5. Registration; Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . 22
Section 3.6. Book-Entry Interests . . . . . . . . . . . . . 23
Section 3.7. Notices to Holders . . . . . . . . . . . . . . 24
Section 3.8. Appointment of Successor Clearing Agency . . . 24
Section 3.9. Definitive Certificates . . . . . . . . . . . . 24
Section 3.10. Mutilated, Destroyed, Lost and Stolen
Certificates . . . . . . . . . . . . . . . . 24
Section 3.11. Persons Deemed Owners . . . . . . . . . . . . . 25
Section 3.12. Cancellation . . . . . . . . . . . . . . . . . 26
Section 3.13. Establishment or Reestablishment of Growth
PRIDES . . . . . . . . . . . . . . . . . . . 26
Section 3.14. Establishment or Reestablishment of Income
PRIDES . . . . . . . . . . . . . . . . . . . 28
Section 3.15. Transfer of Collateral upon Occurrence of
Termination Event . . . . . . . . . . . . . . 29
Section 3.16. No Consent to Assumption . . . . . . . . . . . 30
ARTICLE IV
The Preferred Securities . . . . . . . . . . 30
Section 4.1. Payment of Distribution; Rights to
Distributions Preserved; Distribution
Rate Reset; Notice . . . . . . . . . . . . . 30
Section 4.2. Notice and Voting . . . . . . . . . . . . . . . 31
Section 4.3. Distribution of Debentures; Tax Event
Redemption . . . . . . . . . . . . . . . . . 32
ARTICLE V
The Purchase Contracts . . . . . . . . . . . 33
Section 5.1. Purchase of Shares of Common Stock . . . . . . 33
Section 5.2. Contract Adjustment Payments . . . . . . . . . 34
Section 5.3. Deferral of Payment Dates For Contract
Adjustment Payments . . . . . . . . . . . . . 35
Section 5.4. Payment of Purchase Price . . . . . . . . . . . 36
Section 5.5. Issuance of Shares of Common Stock . . . . . . 39
Section 5.6. Adjustment of Settlement Rate . . . . . . . . . 40
Section 5.7. Notice of Adjustments and Certain Other
Events . . . . . . . . . . . . . . . . . . . 45
Section 5.8. Termination Event; Notice . . . . . . . . . . . 46
Section 5.9. Early Settlement . . . . . . . . . . . . . . . 46
Section 5.10. No Fractional Shares . . . . . . . . . . . . . 47
Section 5.11. Charges and Taxes . . . . . . . . . . . . . . . 48
ARTICLE VI
Remedies . . . . . . . . . . . . . . 48
Section 6.1. Unconditional Right of Holders to Receive
Contract Adjustment Payments and to
Purchase Common Stock . . . . . . . . . . . . 48
Section 6.2. Restoration of Rights and Remedies . . . . . . 49
Section 6.3. Rights and Remedies Cumulative . . . . . . . . 49
Section 6.4. Delay or Omission Not Waiver . . . . . . . . . 49
Section 6.5. Undertaking for Costs . . . . . . . . . . . . . 49
Section 6.6. Waiver of Stay or Extension Laws . . . . . . . 50
ARTICLE VII
The Agent . . . . . . . . . . . . . . 50
Section 7.1. Certain Duties and Responsibilities . . . . . . 50
Section 7.2. Notice of Default . . . . . . . . . . . . . . . 51
Section 7.3. Certain Rights of Agent . . . . . . . . . . . . 51
Section 7.4. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . 52
Section 7.5. May Hold Securities . . . . . . . . . . . . . . 52
Section 7.6. Money Held in Custody . . . . . . . . . . . . . 52
Section 7.7. Compensation and Reimbursement . . . . . . . . 52
Section 7.8. Corporate Agent Required; Eligibility . . . . . 52
Section 7.9. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . 53
Section 7.10. Acceptance of Appointment by Successor . . . . 54
Section 7.11. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . 54
Section 7.12. Preservation of Information; Communications
to Holders . . . . . . . . . . . . . . . . . 55
Section 7.13. No Obligations of Agent . . . . . . . . . . . . 55
Section 7.14. Tax Compliance . . . . . . . . . . . . . . . . 55
ARTICLE VIII
Supplemental Agreements . . . . . . . . . . . 56
Section 8.1. Supplemental Agreements Without Consent of
Holders . . . . . . . . . . . . . . . . . . . 56
Section 8.2. Supplemental Agreements with Consent of
Holders . . . . . . . . . . . . . . . . . . . 56
Section 8.3. Execution of Supplemental Agreements . . . . . 57
Section 8.4. Effect of Supplemental Agreements . . . . . . . 57
Section 8.5. Reference to Supplemental Agreements . . . . . 58
ARTICLE IX
Consolidation, Merger, Sale or Conveyance . . . . . . 58
Section 9.1. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain
Conditions . . . . . . . . . . . . . . . . . 58
Section 9.2. Rights and Duties of Successor Corporation . . 58
Section 9.3. Opinion of Counsel Given to Agent . . . . . . . 59
ARTICLE X
Covenants . . . . . . . . . . . . . . 59
Section 10.1. Performance Under Purchase Contracts . . . . . 59
Section 10.2. Maintenance of Office or Agency . . . . . . . . 59
Section 10.3. Company to Reserve Common Stock . . . . . . . . 60
Section 10.4. Covenants as to Common Stock . . . . . . . . . 60
Section 10.5. Statements of Officer of the Company as to
Default . . . . . . . . . . . . . . . . . . . 60
EXHIBIT A Form of Income PRIDES Certificate
EXHIBIT B Form of Growth PRIDES Certificate
EXHIBIT C Instruction to Collateral Agent
EXHIBIT D Instruction to Purchase Contract Agent
EXHIBIT E Notice to Settle with Separate Cash
PURCHASE CONTRACT AGREEMENT, dated as of March ___, 1998,
between Ingersoll-Rand Company, a New Jersey corporation (the "Company"), and
The First National Bank of Chicago, a national banking association, acting as
purchase contract agent for the Holders of Securities from time to time (the
"Agent").
RECITALS
The Company has duly authorized the execution and delivery
of this Agreement and the Certificates evidencing the Securities.
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 these
presents a valid agreement of the Company, in accordance with its terms, have
been done.
W I T N E S S E T H :
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
Definitions and Other Provisions
of General Applications
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;
(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;
(d) the following terms have the meanings given to them
in the Declaration: (i) Applicable Ownership Interest; (ii)
Applicable Principal Amount; (iii) Authorized Newspaper;
(iv) Indenture, (v) Investment Company Event; (vi) Liquidation
Distribution; (vii) Preferred Securities Guarantee; (viii) Primary
Treasury Dealer; (ix) Quotation Agent; (x) Redemption Amount; (xi)
Redemption Price; (xii) Reset Agent; (xiii) Reset Announcement Date;
(xiv) Reset Rate; (xv) Reset Spread; (xvi) Tax Event; (xvii) Tax
Event Redemption; (xviii) Tax Event Redemption Date; (xix) Two-Year
Benchmark Treasury; (xx) Treasury Portfolio; and (xxi) Treasury
Portfolio Purchase Price; and
(e) the following terms have the meanings given to them
in this Section 1.1(e).
"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.
"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.
"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 the board of directors of the
Company or a duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the
Board of Directors, a copy of which has been certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect
on the date of such certification and delivered to the Agent.
"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 other than a Saturday, Sunday
or any other day on which banking institutions in New York City (in
the State of New York) are permitted or required by any applicable
law to close.
"Cash Settlement" has the meaning set forth in Section
5.4(a)(i).
"Certificate" means an Income PRIDES Certificate or a Growth
PRIDES 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 Securities 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 Securities.
"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 The Chase Manhattan Bank, as
Collateral Agent under the Pledge Agreement until a successor
Collateral Agent shall have become such pursuant to the applicable
provisions of the Pledge Agreement, and thereafter "Collateral Agent"
shall mean the Person who is then the Collateral Agent thereunder.
"Collateral Substitution" has the meaning specified in
Section 3.13.
"Common Stock" means the Common Stock, par value $2.00, 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.
"Contract Adjustment Payments" means the fee payable by the
Company in respect of each Purchase Contract, equal to % per
annum of the Stated Amount in the case of Income PRIDES and %
per annum of the Stated Amount in the case of Growth PRIDES, computed
on the basis of a 360 day year of twelve 30 day months, plus any
Deferred Contract Adjustment Payments accrued pursuant to Section
5.2.
"Corporate Trust Office" means the principal corporate trust
office of the Agent at which, at any particular time, its corporate
trust business shall be administered, which office at the date hereof
is located at One First National Plaza, Suite 0126, Chicago, IL
60670-0126, Attention: Corporate Trust Services Division, except that
for purposes of Section 10.2, such term shall mean the office or
agency of the Agent in the Borough of Manhattan, the City of New
York, which office at the date hereof is located at 14 Wall Street,
Eighth Floor, New York, NY 10005.
"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
5.6(a)(8).
"Debentures" means the series of debentures of the Company
designated the ____% Debentures due ____________ 16, 2003, to be
issued under the Indenture as of the date hereof.
"Declaration" means the Amended and Restated Agreement of
Trust of Ingersoll-Rand Financing I, dated ___________, 1998, among
the Company, as the sponsor, the trustees named therein and the
holders from time to time of individual beneficial interests in the
assets of the Trust.
"Deferred Contract Adjustment Payments" has the meaning
specified in Section 5.3.
"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
5.9(a).
"Early Settlement Amount" has the meaning specified in
Section 5.9(a).
"Early Settlement Date" has the meaning specified in Section
5.9(a).
"Early Settlement Rate" has the meaning specified in Section
5.9(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.
"Expiration Date" has the meaning specified in Section 1.4.
"Expiration Time" has the meaning specified in Section
5.6(a)(6).
"Global Certificate" means a Certificate that evidences all
or part of the Securities and is registered in the name of a
Depositary or a nominee thereof.
"Global Preferred Security Certificate" means a certificate
evidencing the rights and obligations of a Holder in respect of the
number of Preferred Securities specified on such certificate and
which is registered in the name of a Clearing Agency or a nominee
thereof.
"Growth PRIDES" means, following the substitution of one or
more Treasury Securities for Preferred Securities or for the
Applicable Ownership Interest of the Treasury Portfolio, as the case
may be, as collateral to secure a holder's obligations under a
Purchase Contract, the collective rights and obligations of a holder
of a Growth PRIDES Certificate in respect of such Treasury
Securities, subject in each case to the Pledge thereof, and the
related Purchase Contract.
"Growth PRIDES Certificate" means a certificate evidencing
the rights and obligations of a Holder in respect of the number of
Growth PRIDES specified on such certificate.
"Growth PRIDES Register" and "Growth PRIDES Registrar" have
the respective meanings specified in Section 3.5.
"Holder," when used with respect to a Security, means the
Person in whose name the Security evidenced by an Income PRIDES
Certificate and/or a Growth PRIDES Certificate is registered in the
related Income PRIDES Register and/or the Growth PRIDES Register, as
the case may be.
"Income PRIDES" means the collective rights and obligations
of a Holder of an Income PRIDES Certificate in respect of a Preferred
Security or an appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, subject in each case to the
Pledge thereof, and the related Purchase Contract.
"Income PRIDES Certificate" means a certificate evidencing
the rights and obligations of a Holder in respect of the number of
Income PRIDES specified on such certificate.
"Income PRIDES Register" and "Income PRIDES Registrar" have
the respective meanings specified in Section 3.5.
"Indenture" has the meaning set forth in Section 1.1 of the
Declaration.
"Indenture Trustee" means _____________________, a national
banking association, as trustee under the Indenture, or any successor
thereto.
"Institutional Trustee" means __________________, as
institutional trustee under the Declaration, or any successor thereto
that is a financial institution unaffiliated with the Company.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Company by its Chairman of the
Board, any Vice Chairman, its President or a Vice President and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Agent.
"NYSE" has the meaning specified in Section 5.1.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, any Vice Chairman of the Board, the President,
any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company and delivered to
the Agent.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company or
an Affiliate and who shall be reasonably acceptable to the Agent.
"Outstanding Securities," with respect to any Income PRIDES
or Growth PRIDES, means, as of the date of determination, all Income
PRIDES or Growth PRIDES evidenced by Certificates theretofore
authenticated, executed and delivered under this Agreement, except:
(i) If a Termination Event has occurred, (A)
Growth PRIDES and (B) Income PRIDES for which the Stated
Amount of the related Preferred Security or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, or
a Liquidation Distribution in respect of such Preferred
Security, as the case may be, has been theretofore deposited
with the Agent in trust for the Holders of such Income
PRIDES;
(ii) Income PRIDES and Growth PRIDES evidenced
by Certificates theretofore cancelled by the Agent or
delivered to the Agent for cancellation or deemed cancelled
pursuant to the provisions of this Agreement; and
(iii) Income PRIDES and Growth PRIDES 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 Income PRIDES or Growth PRIDES evidenced by
such Certificate are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
number of the Income PRIDES or Growth PRIDES have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Income PRIDES
or Growth PRIDES 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 Income
PRIDES or Growth PRIDES which a Responsible Officer of the Agent knows to be
so owned shall be so disregarded. Income PRIDES or Growth PRIDES so owned
which have been pledged in good faith may be regarded as Outstanding
Securities if the pledgee establishes to the satisfaction of the Agent the
pledgee's right so to act with respect to such Income PRIDES or Growth PRIDES
and that the pledgee is not the Company or any Affiliate of the Company.
"Payment Date" means each February 16, May 16, August 16 and
November 16, commencing , 1998.
"Person" means any individual, corporation, limited
liability company, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Permitted Investments" has the meaning set forth in Section
1 of the Pledge Agreement.
"Pledge" means the pledge under the Pledge Agreement of the
Preferred Securities, the Treasury Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, in each case
constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of
the date hereof, by and among the Company, the Collateral Agent and
the Agent, on its own behalf and as attorney-in-fact for the Holders
from time to time of the Securities.
"Predecessor Certificate" means a Predecessor Income PRIDES
Certificate or a Predecessor Growth PRIDES Certificate.
"Predecessor Growth PRIDES Certificate" of any particular
Growth PRIDES Certificate means every previous Growth PRIDES
Certificate evidencing all or a portion of the rights and obligations
of the Company and the Holder under the Growth PRIDES evidenced
thereby; and, for the purposes of this definition, any Growth PRIDES
Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen
Growth PRIDES Certificate shall be deemed to evidence the same rights
and obligations of the Company and the Holder as the mutilated,
destroyed, lost or stolen Growth PRIDES Certificate.
"Predecessor Income PRIDES Certificate" of any particular
Income PRIDES Certificate means every previous Income PRIDES
Certificate evidencing all or a portion of the rights and obligations
of the Company and the Holder under the Income PRIDES evidenced
thereby; and, for the purposes of this definition, any Income PRIDES
Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen
Income PRIDES Certificate shall be deemed to evidence the same rights
and obligations of the Company and the Holder as the mutilated,
destroyed, lost or stolen Income PRIDES Certificate.
"Preferred Securities" means the ____% Trust Originated
Preferred Securities of the Trust, each having a stated liquidation
amount of $10, representing preferred undivided beneficial interests
in the assets of the Trust.
"Proceeds" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Purchase Contract," when used with respect to any Security,
means the contract forming a part of such Security and obligating the
Company to (i) sell and the Holder of such Security to purchase
Common Stock and (ii) pay the Holder Contract Adjustment Payments, if
any, on the terms and subject to the conditions set forth in Article
Five hereof.
"Purchase Contract Settlement Date" means __________ 16,
2001.
"Purchase Contract Settlement Fund" has the meaning
specified in Section 5.5.
"Purchase Price" has the meaning specified in Section 5.1.
"Purchased Shares" has the meaning specified in Section
5.6(a)(6).
"Record Date" for the distribution and Contract Adjustment
Payments 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.
"Register" means the Income PRIDES Register and the Growth
PRIDES Register.
"Registrar" means the Income PRIDES Registrar and the Growth
PRIDES Registrar.
"Remarketing Agent" has the meaning specified in Section
5.4.
"Remarketing Agreement" means the Remarketing Agreement
dated _______ ___, 1998 by and between the Company, the Trust, the
Remarketing Agent and the Purchase Contract Agent.
"Remarketing Fee" has the meaning specified in Section 5.4.
"Remarketing Purchase Agreement" has the meaning specified
in the Remarketing Agreement.
"Reorganization Event" has the meaning specified in Section
5.6(b).
"Responsible Officer," when used with respect to the Agent,
means any officer of the Agent assigned by the Agent to administer
its corporate trust matters.
"Security" means an Income PRIDES or a Growth PRIDES.
"Senior Indebtedness" means indebtedness of any kind of the
Company unless the instrument under which such indebtedness is
incurred expressly provides that it is on parity with or subordinated
in right of payment to the Contract Adjustment Payments.
"Settlement Rate" has the meaning specified in Section 5.1.
"Stated Amount" means $10.
"Termination Date" means the date, if any, on which a
Termination Event occurs.
"Termination Event" means the occurrence of any of the
following events: (i) at any time on or prior to the Purchase
Contract Settlement Date, a judgment, decree or court order shall
have been entered granting relief under the Bankruptcy Code,
adjudicating the Company to be insolvent, or approving as properly
filed a petition seeking reorganization or liquidation of the Company
or any other similar applicable Federal or State law, and, unless
such judgment, decree or order shall have been entered within 60 days
prior to the Purchase Contract Settlement Date, such decree or order
shall have continued undischarged and unstayed for a period of 60
days; or (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 Purchase Contract Settlement Date, such judgment, decree
or order shall have continued undischarged and unstayed for a period
of 60 days, or (iii) at any time on or prior to the Purchase Contract
Settlement Date the Company shall file a petition for relief under
the Bankruptcy Code, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization or liquidation under the Bankruptcy Code or
any other similar applicable Federal or State law, or shall consent
to the filing of any such petition, or shall consent to the
appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of it or of its property, or shall make an
assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in
Section 5.1.
"TIA" means the Trust Indenture Act of 1939, as amended, or
any successor statute.
"Trading Day" has the meaning specified in Section 5.1.
"Treasury Security" means zero-coupon U.S. Treasury
Securities (Cusip Number ) which are the principal strip of the
______% U.S. Treasury Securities which mature on , 2001.
"Trust" means Ingersoll-Rand Financing I, a statutory
business trust formed under the laws of the State of Delaware, or any
successor thereto by merger or consolidation.
"Underwriting Agreement" means the Underwriting Agreement
dated ________ ___, 1998 between the Company, the Trust, and Merrill
Lynch, Pierce, Fenner & Smith Incorporated.
"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 Officer's 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:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he 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
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Agent.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be
consolidated and form one instrument.
Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Agreement to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Agent and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Agreement and (subject to Section
7.1) 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 Securities shall be proved by the
Income PRIDES Register or the Growth PRIDES 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 Securities entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Agreement to be
given, made or taken by Holders of Securities. If any record date is set
pursuant to this paragraph, the Holders of the Outstanding Income PRIDES and
the Outstanding Growth PRIDES, 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 Income PRIDES or the Growth PRIDES, 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
Securities on such record date. Nothing in this paragraph shall be construed
to prevent the Company from setting a new record date for any action for
which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no
action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by
Holders of the requisite number of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Agent in writing and to each Holder of Securities in the manner
set forth in Section 1.6.
With respect to any record date set pursuant to this
Section, the Company may designate any date as the "Expiration Date" and from
time to time may change the Expiration Date to any earlier or later day;
provided that no such change shall be effective unless notice of the proposed
new Expiration Date is given to the Agent in writing, and to each Holder of
Securities in the manner set forth in Section 1.6, 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,
(1) the Agent by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid, to the
Agent at The First National Bank of Chicago, One First National
Plaza, Suite 0126, Chicago, IL 60670-0126, Attention: Corporate Trust
Services Division, or at any other address previously furnished in
writing by the Agent to the Holders and the Company; or
(2) the Company by the Agent or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid, to the
Company at Ingersoll-Rand Company, 200 Chestnut Ridge Road, Woodcliff
Lake, New Jersey 07675, Attention: Corporate Secretary, or at any
other address previously furnished in writing to the Agent by the
Company; or
(3) 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 or mailed, first-class
postage prepaid, addressed to the Collateral Agent at The Chase
Manhattan Bank, 450 West 33rd Street, 15th Floor, New York, NY 10001,
Attention: Corporate Trust Administration, or at any other address
previously furnished in writing by the Collateral Agent to the Agent,
the Company and the Holders; or
(4) the Institutional 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 or mailed, first-class postage prepaid,
addressed to the Institutional Trustee at [ ],
Attention: Corporate Trust Services Division, or at any other address
previously furnished in writing by the Institutional Trustee to the
Company; or
(5) the Indenture 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 or mailed, first-class postage prepaid,
addressed to the Indenture Trustee at [ ] or at
any other address previously furnished in writing by the Indenture
Trustee to the Company.
Section 1.6. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at 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.
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.
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 Securities, 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 Securities evidenced by their Certificates by their acceptance of
delivery of such Certificates.
Section 1.11. Governing Law.
This Agreement and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business
Day, then (notwithstanding any other provision of this Agreement or the
Income PRIDES Certificates or the Growth PRIDES Certificates) payment of the
Contract Adjustment Payments, if any, 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 or any Holder 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.
In any case where any Purchase Contract Settlement Date
shall not be a Business Day, then (notwithstanding any other provision of
this Agreement, the Income PRIDES Certificates or the Growth PRIDES
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 Purchase
Contract Settlement Date.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts
by the parties hereto on separate counterparts, each of which, when so
executed and delivered, shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all
reasonable times during normal business hours at the Corporate Trust Office
for inspection by any Holder.
ARTICLE II
Certificate Forms
Section 2.1. Forms of Certificates Generally.
The Income PRIDES Certificates (including the form of
Purchase Contract forming part of the Income PRIDES evidenced thereby) shall
be in substantially the form set forth in Exhibit A hereto, with such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the Income PRIDES
are listed or any depositary therefor, or as may, consistently herewith, be
determined by the officers of the Company executing such Income PRIDES
Certificates, as evidenced by their execution of the Income PRIDES
Certificates.
The definitive Income PRIDES Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Income PRIDES evidenced by such Income PRIDES Certificates, consistent with
the provisions of this Agreement, as evidenced by their execution thereof.
The Growth PRIDES Certificates (including the form of
Purchase Contracts forming part of the Growth PRIDES 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 on which the Growth PRIDES
may be listed or any depositary therefor, or as may, consistently herewith,
be determined by the officers of the Company executing such Growth PRIDES
Certificates, as evidenced by their execution of the Growth PRIDES
Certificates.
The definitive Growth PRIDES Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Growth PRIDES evidenced by such Growth PRIDES Certificates, consistent with
the provisions of this Agreement, as evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf
of the Holders and delivered hereunder shall bear a legend in substantially
the following form:
THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT (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.
The form of the Agent's certificate of authentication of the
Income PRIDES shall be in substantially the form set forth on the form of the
Income PRIDES Certificates.
The form of the Agent's certificate of authentication of the
Growth PRIDES shall be in substantially the form set forth on the form of the
Growth PRIDES Certificates.
ARTICLE III
The Securities
Section 3.1. Title and Terms; Denominations.
The aggregate number of Income PRIDES evidenced by
Certificates authenticated, executed on behalf of the Holders and delivered
hereunder is limited to ___________ 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, 5.9 or 8.5.
The Certificates shall be issuable only in registered form
and only in denominations of a single Income PRIDES or Growth PRIDES and any
integral multiple thereof.
Section 3.2. Rights and Obligations Evidenced by the
Certificates.
Each Income PRIDES Certificate shall evidence the number of
Income PRIDES specified therein, with each such Income PRIDES representing
the ownership by the Holder thereof of a beneficial interest in a Preferred
Security or the Applicable Ownership Interest of the Treasury Portfolio, as
the case may be, subject to the Pledge of such Preferred Security or the
Applicable Ownership Interest of the Treasury Portfolio, 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 Income PRIDES shall pledge, pursuant to the Pledge Agreement, the
Preferred Security or the Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, forming a part of such Income PRIDES, to the
Collateral Agent and grant to the Collateral Agent a security interest in the
right, title, and interest of such Holder in such Preferred Security or the
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
for the benefit of the Company, to secure the obligation of the Holder under
each 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 Contracts shall not entitle the Holder of an Income PRIDES
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.
Each Growth PRIDES Certificate shall evidence the number of
Growth PRIDES specified therein, with each such Growth PRIDES representing
the ownership by the Holder thereof of a 1/100 undivided beneficial interest
in a Treasury Security with a principal amount equal to $1,000 subject to the
Pledge of 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, if any, of
shares of Common Stock under the Purchase Contracts, such Growth PRIDES
Certificates shall not entitle the Holders of Growth PRIDES 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.
Subject to the provisions of Sections 3.13 and 3.14 hereof,
upon the execution and delivery of this Agreement, and at any time and from
time to time thereafter, the Company may deliver Certificates executed by the
Company to the 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.
The Certificates shall be executed on behalf of the Company
by its Chairman of the Board, its Vice Chairman of the Board, its President
or one of its Vice Presidents or Treasurer. The signature of any of these
officers on the Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be
valid until such Certificate has been executed on behalf of the Holder by the
manual signature of an authorized 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 Contracts evidenced by such Certificate.
Each Certificate shall be dated the date of its
authentication.
No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on
such Certificate a certificate of authentication substantially in the form
provided for herein executed by an authorized 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.
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 Income
PRIDES or Growth PRIDES are listed, or as may, consistently herewith, be
determined by the officers of the Company executing such Certificates, as
evidenced by their execution of the Certificates.
If temporary Certificates are issued, the Company will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office, at the expense of the Company and
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Certificates, the Company shall execute and deliver to the
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 Income PRIDES or
Growth PRIDES, 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 Income PRIDES or Growth PRIDES, as the case may be,
evidenced thereby as definitive Certificates.
Section 3.5. Registration; Registration of Transfer and
Exchange.
The Agent shall keep at the Corporate Trust Office a
register (the "Income PRIDES Register") in which, subject to such reasonable
regulations as it may prescribe, the Agent shall provide for the registration
of Income PRIDES Certificates and of transfers of Income PRIDES Certificates
(the Agent, in such capacity, the "Income PRIDES Registrar") and a Register
(the "Growth PRIDES Register") in which, subject to such reasonable
regulations as it may prescribe, the Agent shall provide for the registration
of the Growth PRIDES Certificates and transfers of Growth PRIDES Certificates
(the Agent, in such capacity, the "Growth PRIDES Registrar").
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 any
authorized denominations, like tenor, and evidencing a like number of Income
PRIDES or Growth PRIDES, as the case may be.
At the option of the Holder, Certificates may be exchanged
for other Certificates, of any authorized denominations and evidencing a like
number of Income PRIDES or Growth PRIDES, 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 Holder, and deliver the Certificates which the Holder making the
exchange is entitled to receive.
All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same number of
Income PRIDES or Growth PRIDES, as the case may be, and be entitled to the
same benefits and subject to the same obligations, under this Agreement as
the Income PRIDES or Growth PRIDES, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration
of transfer or 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.
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 and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Agent, and the Agent shall not be
obligated to authenticate, execute on behalf of the Holder and deliver any
Certificate presented or surrendered for registration of transfer or for
exchange on or after the Business Day immediately preceding the earlier of
the Purchase Contract Settlement Date or the Termination Date. In lieu of
delivery of a new Certificate, upon satisfaction of the applicable conditions
specified above in this Section and receipt of appropriate registration or
transfer instructions from such Holder, the Agent shall (i) if the Purchase
Contract Settlement Date has occurred, deliver the shares of Common Stock
issuable in respect of the Purchase Contracts forming a part of the
Securities evidenced by such Certificate, (ii) in the case of Income PRIDES,
if a Termination Event shall have occurred prior to the Purchase Contract
Settlement Date, transfer the aggregate Stated Amount of the Preferred
Securities or the Treasury Portfolio, as applicable, evidenced thereby, or
(iii) in the case of Growth PRIDES, if a Termination Event shall have
occurred prior to the Purchase Contract Settlement Date, transfer the
Treasury Securities evidenced thereby, in each case subject to the applicable
conditions and in accordance with the applicable provisions of Article Five
hereof.
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 shall be entitled to deal with the
Clearing Agency for all purposes of this Agreement (including the
payment of Contract Adjustment Payments, if any, and receiving
approvals, votes or consents hereunder) as the Holder of the
Securities 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 and receive and transmit payments
of Contract Adjustment Payments to such 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 Securities 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.
Section 3.8. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities, the Company may, in its
sole discretion, appoint a successor Clearing Agency with respect to the
Securities.
Section 3.9. Definitive Certificates.
If (i) a Clearing Agency elects to discontinue its services
as securities depositary with respect to the Securities 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 through the Clearing Agency with respect to the Securities, 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 Securities 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.
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 Income PRIDES or Growth PRIDES, as the case may be, and bearing a
Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i)
evidence to their satisfaction of the destruction, loss or theft of any
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 the Agent that
such Certificate has been acquired by a bona fide purchaser, the Company
shall execute and deliver to the Agent, and the Agent shall authenticate,
execute on behalf of the Holder, and deliver to the Holder, in lieu of any
such destroyed, lost or stolen Certificate, a new Certificate, evidencing the
same number of Income PRIDES or Growth PRIDES, as the case may be, and
bearing a Certificate number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the 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 Business Day immediately preceding
the earlier of the Purchase Contract Settlement Date or the Termination Date.
In lieu of delivery of a new Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Agent shall (i)
if the Purchase Contract Settlement Date has occurred, deliver the shares of
Common Stock issuable in respect of the Purchase Contracts forming a part of
the Securities evidenced by such Certificate, or (ii) if a Termination Event
shall have occurred prior to the Purchase Contract Settlement Date, transfer
the Preferred Securities, the appropriate Applicable Ownership Interest of
the Treasury Portfolio 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 hereof.
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.
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 Security evidenced thereby, whether or not the destroyed,
lost or stolen Certificate (and the Securities evidenced thereby) shall be at
any time enforceable by anyone, and shall be entitled to all the benefits and
be subject to all the obligations of this Agreement equally and
proportionately with any and all other Certificates delivered hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
Section 3.11. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration
of transfer, the Company and the Agent, and any agent of the Company or the
Agent, may treat the Person in whose name such Certificate is registered as
the owner of the Income PRIDES or Growth PRIDES evidenced thereby, for the
purpose of receiving distributions on the Preferred Securities or on the
maturing quarterly interest strips of the Treasury Portfolio, as applicable,
receiving payments of Contract Adjustment Payments, performance of the
Purchase Contracts and for all other purposes whatsoever, whether or not any
distributions on the Preferred Securities or the Contract Adjustment Payments
payable in respect of the Purchase Contracts constituting a part of the
Income PRIDES or Growth PRIDES evidenced thereby shall be overdue and
notwithstanding any notice to the contrary, and neither the Company nor the
Agent, nor any agent of the Company or the Agent, shall be affected by notice
to the contrary.
Notwithstanding the foregoing, with respect to any Global
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.
All Certificates surrendered for delivery of shares of
Common Stock on or after the Purchase Contract Settlement Date, upon the
transfer of Preferred Securities, the appropriate Applicable Ownership
Interest of the Treasury Portfolio or Treasury Securities, as the case may
be, after the occurrence of a Termination Event or pursuant to an Early
Settlement, or upon the registration of a transfer or exchange of a Security,
or a Collateral Substitution or the re-establishment of an Income PRIDES
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 destroyed by the Agent
unless otherwise directed by Issuer Order.
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.
Section 3.13. Establishment or Reestablishment of Growth
PRIDES.
A Holder may separate the Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as
applicable, from the related Purchase Contracts in respect of an Income
PRIDES by substituting for such Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
Treasury Securities in an aggregate principal amount equal to the aggregate
Stated Amount of such Preferred Securities or for the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such
term) of the Treasury Portfolio, as applicable (a "Collateral
Substitution"), at any time from and after the date of this Agreement and on
or prior to the fifth Business Day immediately preceding the Purchase
Contract Settlement Date in the case of the Preferred Securities and on or
prior to the second Business Day immediately preceding the Purchase Contract
Settlement Date in the case of the appropriate Applicable Ownership Interest
of the Treasury Portfolio, in each case by (a) depositing with the Collateral
Agent Treasury Securities having an aggregate principal amount equal to the
aggregate Stated Amount of the Preferred Securities comprising part of such
Income PRIDES or for the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio comprising part of such Income PRIDES, as the case may be, and (b)
(i) in the event that Contract Adjustment Payments are at a higher rate for
Income PRIDES than for Growth PRIDES, by delivering cash in an amount equal
to the excess of the Contract Adjustment Payments that would have accrued
since the last Payment Date through the date of substitution on the Growth
PRIDES being created by the holder, over the Contract Adjustment Payments
that have accrued over the same time period on the related Income PRIDES,
which amount the Agent shall promptly remit to the Company, and (ii)
transferring the related Income PRIDES 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 Preferred Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, underlying such
Income PRIDES, whereupon the Agent shall promptly give such instruction to
the Collateral Agent, substantially in the form of Exhibit C hereto. Upon
receipt of the Treasury Securities described in clause (a) above and the
instruction described in clause (b) above, in accordance with the terms of
the Pledge Agreement, the Collateral Agent will release to the Agent, on
behalf of the Holder, Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, having a
corresponding aggregate Stated Amount of such Preferred Securities or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, 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:
(i) cancel the related Income PRIDES;
(ii) transfer the Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case
may be, to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a Growth PRIDES Certificate executed by the Company in
accordance with Section 3.3 evidencing the same number of Purchase
Contracts as were evidenced by the cancelled Income PRIDES.
Holders who elect to separate the Preferred Securities or
the appropriate Applicable Ownership Interest of the Treasury Portfolio, as
the case may be, from the related Purchase Contract and to substitute
Treasury Securities for such Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, 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.
Holders may make Collateral Substitutions (i) only in
integral multiples of 100 Income PRIDES if Preferred Securities are being
substituted by Treasury Securities, or (ii) only in integral multiples of
160,000 Income PRIDES if the appropriate Applicable Ownership Interests of
the Treasury Portfolio are being substituted by Treasury Securities.
In the event a Holder making a Collateral Substitution
pursuant to this Section 3.13 fails to effect a book-entry transfer of the
Income PRIDES or fails to deliver an Income PRIDES Certificate(s) to the
Agent after depositing Treasury Securities with the Collateral Agent, the
Preferred Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, constituting a part of such Income
PRIDES, and any distributions on such Preferred Security or the Applicable
Ownership Interest of the Treasury Portfolio, 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 Income PRIDES is so transferred or the Income PRIDES
Certificate is so delivered, as the case may be, or, with respect to an
Income PRIDES Certificate, such Holder provides evidence satisfactory to the
Company and the Agent that such Income PRIDES Certificate has been destroyed,
lost or stolen, together with any indemnity that may be required by the Agent
and the Company.
Except as described in this Section 3.13, for so long as the
Purchase Contract underlying an Income PRIDES remains in effect, such Income
PRIDES shall not be separable into its constituent parts, and the rights and
obligations of the Holder in respect of the Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, and Purchase Contract comprising such Income PRIDES may be
acquired, and may be transferred and exchanged, only as an Income PRIDES.
Section 3.14. Establishment or Reestablishment of Income
PRIDES.
A Holder of a Growth PRIDES may create or recreate Income
PRIDES at any time (i) on or prior to the fifth Business Day immediately
preceding the Purchase Contract Settlement Date, if a Tax Event Redemption
has not occurred, and (ii) on or prior to the second Business Day immediately
preceding the Purchase Contract Settlement Date, if a Tax Event Redemption
has occurred, in each case by (a) depositing with the Collateral Agent
Preferred Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, having an aggregate Stated Amount in
the case of the Preferred Securities, or an appropriate Applicable Ownership
Interest (as defined in clause (A) of the definition of such term) of the
Treasury Portfolio, as the case may be, equal to the aggregate principal
amount of the Treasury Securities comprising part of the Growth PRIDES and
(b) (i) in the event that Contract Adjustment Payments are at a higher rate
for Income PRIDES than for Growth PRIDES, by delivering to the Agent cash in
an amount equal to the excess of the Contract Adjustment Payments that would
have accrued since the last payment date through the date of substitution on
the Income PRIDES being created or recreated by such holders, over the
Contract Adjustment Payments that have accrued over the same time period on
the related Growth PRIDES transferring the related Growth PRIDES 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
Preferred Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, to the Collateral Agent and
requesting that the Agent instruct the Collateral Agent to release the
Treasury Securities underlying such Growth PRIDES, whereupon the Agent shall
promptly give such instruction to the Collateral Agent, substantially in the
form of Exhibit C hereto. Upon receipt of the Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, described in clause (a) above and the instruction described in
clause (b) above, in accordance with the terms of the Pledge Agreement, the
Collateral Agent will effect the release of the Treasury Securities having a
corresponding aggregate principal amount from the Pledge to the Agent free
and clear of the Company's security interest therein, and upon receipt
thereof the Agent shall promptly:
(i) cancel the related Growth PRIDES;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver an Income PRIDES Certificate executed by the Company in
accordance with Section 3.3 evidencing the same number of Purchase
Contracts as were evidenced by the cancelled Growth PRIDES.
Holders of Growth PRIDES may establish or reestablish Income
PRIDES in integral multiples of 100 Growth PRIDES for 100 Income PRIDES if a
Tax Event Redemption has not occurred, and in integral multiples of 160,000
Growth PRIDES for 160,000 Income PRIDES if a Tax Event Redemption has
occurred.
Except as provided in this Section 3.14, for so long as the
Purchase Contract underlying a Growth PRIDES remains in effect, such Growth
PRIDES shall not be separable into its constituent parts and the rights and
obligations of the Holder of such Growth PRIDES in respect of the Treasury
Security and Purchase Contract comprising such Growth PRIDES may be acquired,
and may be transferred and exchanged only as a Growth PRIDES.
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 Preferred Securities, the appropriate Applicable
Ownership Interest of the Treasury Portfolio or the Treasury Securities, as
the case may be, underlying the Income PRIDES and the Growth PRIDES pursuant
to the terms of the Pledge Agreement, the Agent shall request transfer
instructions with respect to such Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio 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 Income PRIDES Register or the
Growth PRIDES Register, as the case may be. Upon book-entry transfer of the
Income PRIDES or Growth PRIDES or delivery of an Income PRIDES Certificate or
Growth PRIDES Certificate to the Agent with such transfer instructions, the
Agent shall transfer the Preferred Securities, the Treasury Portfolio or
Treasury Securities, as the case may be, underlying such Income PRIDES or
Growth PRIDES, 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 Income PRIDES or Growth PRIDES fails to effect such
transfer or delivery, the Preferred Securities, the appropriate Applicable
Ownership Interest of the Treasury Portfolio or Treasury Securities, as the
case may be, underlying such Income PRIDES or Growth PRIDES, 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 Income PRIDES
or Growth PRIDES are transferred or the Income PRIDES Certificate or Growth
PRIDES Certificate is surrendered or such Holder provides satisfactory
evidence that such Income PRIDES Certificate or Growth PRIDES 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 Security, by acceptance thereof, shall be
deemed expressly to have withheld any consent to the assumption under Section
365 of the Bankruptcy Code or otherwise, of the Purchase Contract by the
Company, receiver, liquidator or a person or entity performing similar
functions, its trustee in the event that the Company becomes the debtor under
the Bankruptcy Code or subject to other similar state or federal law
providing for reorganization or liquidation.
ARTICLE IV
The Preferred Securities
Section 4.1. Payment of Distribution; Rights to
Distributions Preserved; Distribution Rate
Reset; Notice.
A distribution on any Preferred Security or on the
appropriate Applicable Ownership Interest in the Treasury Portfolio, 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 Income PRIDES
Certificate (or one or more Predecessor Income PRIDES Certificates) of which
such Preferred Security or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, is a part is registered at the
close of business on the Record Date for such Payment Date.
Each Income PRIDES Certificate evidencing Preferred
Securities delivered under this Agreement upon registration of transfer of or
in exchange for or in lieu of any other Income PRIDES Certificate shall carry
the rights to distributions accrued and unpaid, and to accrue distributions,
which were carried by the Preferred Securities underlying such other Income
PRIDES Certificate.
In the case of any Income PRIDES with respect to which Cash
Settlement of the underlying Purchase Contract is effected on the Business
Day immediately preceding the Purchase Contract Settlement Date pursuant to
prior notice, or with respect to which Early Settlement of the underlying
Purchase Contract is effected on a 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,
distributions on the Preferred Securities or on the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, underlying
such Income PRIDES otherwise payable on such Payment Date shall be payable on
such Payment Date notwithstanding such Cash Settlement or Early Settlement or
Collateral Substitution, and such distributions shall, subject to receipt
thereof by the Agent, be payable to the Person in whose name the Income
PRIDES Certificate (or one or more Predecessor Income PRIDES Certificates)
was registered at the close of business on the Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the
case of any Income PRIDES with respect to which Cash Settlement or Early
Settlement of the underlying Purchase Contract is effected on the Business
Day immediately preceding the Purchase Contract Settlement Date or an Early
Settlement Date, as the case may be, or with respect to which a Collateral
Substitution has been effected, distributions on the related Preferred
Securities or on the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, that would otherwise be payable after
the Purchase Contract Settlement Date or Early Settlement Date shall not be
payable hereunder to the Holder of such Income PRIDES; provided, however,
that to the extent that such Holder continues to hold the separated Preferred
Securities that formerly comprised a part of such Holder's Income PRIDES,
such Holder shall be entitled to receive the distributions on such separated
Preferred Securities.
The applicable Coupon Rate on the Preferred Securities on
and after the Purchase Contract Settlement Date will be reset on the third
Business Day immediately preceding the Purchase Contract Settlement Date to
the Reset Rate (such Reset Rate to be in effect on and after the purchase
Contract Settlement Date). On the Reset Announcement Date the Reset Spread
and the Two-Year Benchmark Treasury to be used to determine the Reset Rate
will be announced by the Company. On the Business Day immediately following
the Reset Announcement Date, the Preferred Securities Holders will be
notified of such Reset Spread and Two-Year Benchmark Treasury by the Company.
Such notice shall be sufficiently given to Holders of Preferred Securities if
published in an Authorized Newspaper in The City of New York.
Not later than 7 calendar days nor more than 15 calendar
days prior to the Reset Announcement Date, the Company will notify the DTC or
its nominee (or any successor Clearing Agency or its nominee) by first-class
mail, postage prepaid, to notify the Beneficial Owners or Clearing Agency
Participants holding Income PRIDES or Growth PRIDES, of such Reset
Announcement Date and the procedures to be followed by such Holders of Income
PRIDES who intend to settle their obligation under the Purchase Contract with
separate cash on the Purchase Contract Settlement Date.
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 Preferred Securities pledged with the Collateral Agent but only to the
extent instructed by the Holders as described below. Upon receipt of notice
of any meeting at which holders of Preferred Securities are entitled to vote
or upon any solicitation of consents, waivers or proxies of holders of
Preferred Securities, the Agent shall, as soon as practicable thereafter,
mail to the Holders of Income PRIDES 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
Preferred Securities entitled to vote) shall be entitled to instruct the
Agent as to the exercise of the voting rights pertaining to the Preferred
Securities underlying their Income PRIDES and (c) stating the manner in which
such instructions may be given. Upon the written request of the Holders of
Income PRIDES 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 Preferred Securities as to
which any particular voting instructions are received. In the absence of
specific instructions from the Holder of an Income PRIDES, the Agent shall
abstain from voting the Preferred Security underlying such Income PRIDES.
The Company hereby agrees, if applicable, to solicit Holders of Income PRIDES
to timely instruct the Agent in order to enable the Agent to vote such
Preferred Securities and the Trust shall covenant to such effect in the
Declaration.
Section 4.3. Distribution of Debentures; Tax Event
Redemption.
Upon the occurrence of an Investment Company Event or a
liquidation of the Trust in accordance with the Declaration, a principal
amount of Debentures constituting the assets of the Trust and underlying the
Preferred Securities equal to the aggregate Stated Amount of the Pledged
Preferred Securities shall be delivered to the Collateral Agent in exchange
for the Pledged Preferred Securities. Thereafter, the Debentures will be
substituted for the Pledged Preferred Securities, and will be held by the
Collateral Agent in accordance with the terms of the Pledge Agreement to
secure the obligations of each Holder of an Income PRIDES to purchase the
Common Stock of the Company under the Purchase Contracts constituting a part
of such Income PRIDES. Following the occurrence of an Investment Company
Event or a liquidation of the Trust, the Holders and the Collateral Agent
shall have such security interests, rights and obligations with respect to
the Debentures as the Holders and the Collateral Agent had in respect of the
Preferred Securities 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 Preferred Securities shall be deemed to be a reference to such
Debentures. The Company may cause to be made in any Income PRIDES
Certificates thereafter to be issued such change in phraseology and form (but
not in substance) as may be appropriate to reflect the liquidation of the
Trust and the substitution of Debentures for Preferred Securities as
Collateral.
Upon the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Redemption Price payable on the Tax
Event Redemption Date with respect to the Applicable Principle Amount of
Debentures shall be delivered to the Collateral Agent in exchange for the
Pledged Preferred Securities. Thereafter, pursuant to the terms of the
Pledge Agreement, the Collateral Agent will apply an amount equal to the
Redemption Amount of such Redemption Price to purchase on behalf of the
Holders of Income PRIDES the Treasury Portfolio and promptly remit the
remaining portion of such Redemption Price to the Agent for payment to the
Holders of such Income PRIDES. The Treasury Portfolio will be substituted
for the Pledged Preferred Securities, 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 an Income PRIDES to purchase the Common Stock of
the Company under the Purchase Contract constituting a part of such Income
PRIDES. Following the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Holders of Income PRIDES and the
Collateral Agent shall have such security interests, rights and obligations
with respect to the Treasury Portfolio as the Holder of Income PRIDES and the
Collateral Agent had in respect of the Preferred Security or 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
Preferred Security or the Debenture shall be deemed to be reference to such
Treasury Portfolio. The Company may cause to be made in any Income PRIDES
Certificates thereafter to be issued such change in phraseology and form (but
not in substance) as may be appropriate to reflect the liquidation of the
Trust and the substitution of the Treasury Portfolio for Preferred Securities
or Debentures as collateral.
ARTICLE V
The Purchase Contracts
Section 5.1. Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless an Early Settlement has
occurred in accordance with Section 5.9 hereof, obligate the Holder of the
related Security to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price"), a number of newly issued shares of Common Stock equal to the
Settlement Rate unless, on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part. The "Settlement Rate" is equal to
(a) if the Applicable Market Value (as defined below) is equal to or greater
than $_____ (the "Threshold Appreciation Price"), _____ shares of Common
Stock per Purchase Contract, (b) if the Applicable Market Value is less than
the Threshold Appreciation Price, but is greater than $_____, the number of
shares of Common Stock equal to the Stated Amount divided by the Applicable
Market Value and (c) if the Applicable Market Value is less than or equal to
$_____, _____ shares of Common Stock per Purchase Contract, in each case
subject to adjustment as provided in Section 5.6 (and in each case rounded
upward or downward to the nearest 1/10,000th of a share). As provided in
Section 5.10, no fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the
Closing Price per share of Common Stock on each of the 20 consecutive Trading
Days ending on the third Trading Day immediately preceding the Purchase
Contract Settlement Date. The "Closing Price" of the Common Stock on any
date of determination means the closing sale price (or, if no closing price
is reported, the last reported sale price) of the Common Stock on the New
York Stock Exchange (the "NYSE") on such date or, if the Common Stock is not
listed for trading on the NYSE on any such date, as reported in the composite
transactions for the principal United States securities exchange on which the
Common Stock is so listed, or if the Common Stock is not so listed on a
United States national or regional securities exchange, as reported by The
Nasdaq Stock Market, or, if the Common Stock is not so reported, the last
quoted bid price for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization, or, if
such bid price is not available, the market value of the Common Stock on such
date as determined by a nationally recognized independent investment banking
firm retained for this purpose by the Company. A "Trading Day" means a day
on which the Common Stock (A) is not suspended from trading on any national
or regional securities exchange or association or over-the-counter market at
the close of business and (B) has traded at least once on the national or
regional securities exchange or association or over-the-counter market that
is the primary market for the trading of the Common Stock.
Each Holder of an Income PRIDES or a Growth PRIDES, 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 Preferred
Securities, the Treasury Portfolio or the Treasury Securities pursuant to the
Pledge Agreement; provided that upon a Termination Event, the rights of the
Holder of such Security under the Purchase Contract may be enforced without
regard to any other rights or obligations. Each Holder of an Income PRIDES
or a Growth PRIDES, by its acceptance thereof, further covenants and agrees,
that, to the extent and in the manner provided in Section 5.4 and the Pledge
Agreement, but subject to the terms thereof, payments in respect of the
Stated Amount of the Preferred Securities or the Proceeds of the Treasury
Securities or the Treasury Portfolio on the Purchase Contract Settlement Date
shall be paid by the Collateral Agent to the Company in satisfaction of such
Holder's obligations under such Purchase Contract and such Holder shall
acquire no right, title or interest in such payments.
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. Contract Adjustment Payments.
Subject to Section 5.3 herein, the Company shall pay, on
each Payment Date, the Contract Adjustment Payments payable in respect of
each Purchase Contract to the Person in whose name a Certificate (or one or
more Predecessor Certificates) is registered at the close of business on the
Record Date next preceding such Payment Date. The Contract Adjustment
Payments will be payable at the office of the Agent in The City of New York
maintained for that purpose or, at the option of the Company, by check mailed
to the address of the Person entitled thereto at such Person's address as it
appears on the Income PRIDES Register or Growth PRIDES Register.
Upon the occurrence of a Termination Event, the Company's
obligation to pay Contract Adjustment Payments (including any accrued or
Deferred Contract Adjustment Payments) shall cease.
Each Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of (including as a
result of a Collateral Substitution or the re-establishment of an Income
PRIDES) any other Certificate shall carry the rights to Contract Adjustment
Payments accrued and unpaid, and to accrue Contract Adjustment Payments,
which were carried by the Purchase Contracts underlying such other
Certificates.
Subject to Section 5.9, in the case of any Security with
respect to which Early Settlement of the underlying Purchase Contract is
effected on an Early Settlement Date that is after any Record Date and on or
prior to the next succeeding Payment Date, Contract Adjustment Payments, if
any, otherwise payable on such Payment Date shall be payable on such Payment
Date notwithstanding such Early Settlement, and such Contract Adjustment
Payments shall be paid to the Person in whose name the Certificate evidencing
such Security (or one or more Predecessor Certificates) is registered at the
close of business on such Record Date. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any Security
with respect to which Early Settlement of the underlying Purchase Contract is
effected on an Early Settlement Date, Contract Adjustment Payments that would
otherwise be payable after the Early Settlement Date with respect to such
Purchase Contract shall not be payable.
The Company's obligations with respect to Contract
Adjustment Payments, will be subordinated and junior in right of payment to
the Company's obligations under any Senior Indebtedness.
Section 5.3. Deferral of Payment Dates For Contract
Adjustment Payments.
The Company shall have the right, at any time prior to the
Purchase Contract Settlement Date, to defer the payment of any or all of the
Contract Adjustment Payments otherwise payable on any Payment Date, but only
if the Company shall give the Holders and the Agent written notice of its
election to defer such payment (specifying the amount to be deferred) at
least ten Business Days prior to the earlier of (i) the next succeeding
Payment Date or (ii) the date the Company is required to give notice of the
Record Date or Payment Date with respect to payment of such Contract
Adjustment Payments to the New York Stock Exchange or other applicable
self-regulatory organization or to Holders of the Securities, but in any
event not less than one Business Day prior to such Record Date. Any Contract
Adjustment Payments so deferred shall bear additional Contract Adjustment
Payments thereon at the rate of ____% per annum (computed on the basis of 360
day year of twelve 30 day months), compounding on each succeeding Payment
Date, until paid in full (such deferred installments of Contract Adjustment
Payments together with the additional Contract Adjustment Payments accrued
thereon, being referred to herein as the "Deferred Contract Adjustment
Payments"). Deferred Contract Adjustment Payments shall be due on the next
succeeding Payment Date except to the extent that payment is deferred
pursuant to this Section. No Contract Adjustment Payments may be deferred to
a date that is after the Purchase Contract Settlement Date. If the Purchase
Contracts are terminated upon the occurrence of a Termination Event, the
Holder's right to receive Contract Adjustment Payments and Deferred Contract
Adjustment Payments will terminate.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until the Purchase
Contract Settlement Date, each Holder will receive on the Purchase Contract
Settlement Date in lieu of a cash payment a number of shares of Common Stock
(in addition to a number of shares of Common Stock equal to the Settlement
Rate) equal to (x) the aggregate amount of Deferred Contract Adjustment
Payments payable to such Holder divided by (y) the Applicable Market Value.
In the event the Company exercises its option to defer the
payment of Contract Adjustment Payments, then, until the Deferred Contract
Adjustment Payments have been paid, the Company shall not declare or pay
dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock or make guarantee payments with respect to the foregoing (other than
(i) purchases or acquisitions of shares of capital stock of the Company in
connection with the satisfaction by the Company of its obligations under any
employee or agent benefit plans or the satisfaction by the Company of its
obligations pursuant to any contract or security outstanding on the date of
such event requiring the Company to purchase capital stock of the Company,
(ii) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock, (iii) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (iv) dividends or distributions in
capital stock of the Company (or rights to acquire capital stock) or
repurchases or redemptions of capital stock solely from the issuance or
exchange of capital stock or (v) redemptions or repurchases of any rights
outstanding under a shareholder rights plan and the declaration thereunder of
a dividend of rights in the future).
No fractional shares of Common Stock will be issued by the
Company with respect to the payment of Deferred Contract Adjustment Payments
on the Purchase Contract Settlement Date. In lieu of fractional shares
otherwise issuable with respect to such payment of Deferred Contract
Adjustment Payments, the Holder will be entitled to receive an amount in cash
as provided in Section 5.10.
Section 5.4. Payment of Purchase Price.
(a)(1) Unless a Tax Event Redemption has occurred or a
Holder settles the underlying Purchase Contract through the early delivery of
cash to the Purchase Contract Agent in the manner described in Section 5.9,
each Holder of an Income PRIDES must notify the Agent by use of a notice in
substantially the form of Exhibit E hereto of its intention to pay in cash
("Cash Settlement") the Purchase Price for the shares of Common Stock to be
purchased pursuant to a Purchase Contract. Such notice shall be made on or
prior to 5:00 p.m., New York City time, on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date. The Agent shall promptly
notify the Collateral Agent of the receipt of such a notice from a Holder
intending to make a Cash Settlement.
(2) A Holder of an Income PRIDES who has so notified the
Agent of its intention to make a Cash Settlement is required to pay the
Purchase Price to the Collateral Agent prior to 11:00 a.m., New York City
time, on the Business Day immediately preceding the Purchase Contract
Settlement Date in lawful money of the United States by certified or
cashiers' check or wire transfer, in each case in immediately available funds
payable to or upon the order of the Company. Any cash received by the
Collateral Agent will be invested promptly by the Collateral Agent in
Permitted Investments and paid to the Company on the Purchase Contract
Settlement Date in settlement of the Purchase Contract in accordance with the
terms of this Agreement and the Pledge Agreement. Any funds received by the
Collateral Agent in respect of the investment earnings from the investment in
such Permitted Investments, will be distributed to the Agent when received
for payment to the Holder.
(3) If a Holder of an Income PRIDES fails to notify the
Agent of its intention to make a Cash Settlement in accordance with paragraph
(a)(i) above, such failure shall constitute an event of default and the
Holder shall be deemed to have consented to the disposition of the pledged
Preferred Securities pursuant to the Remarketing as described in paragraph
(b) below. If a Holder of an Income PRIDES does notify the Agent as provided
in paragraph (a)(i) above of its intention to pay the Purchase Price in cash,
but fails to make such payment as required by paragraph (a)(ii) above, such
failure shall also constitute a default; however, the Preferred Securities of
such a Holder will not be remarketed but instead the Collateral Agent, for
the benefit of the Company, will exercise its rights as a secured party with
respect to such Preferred Securities, including those rights specified in
paragraph (c) below.
(b) In order to dispose of the Preferred Securities of
Income PRIDES Holders who have not notified the Agent of their intention to
effect a Cash Settlement as provided in paragraph (a)(i) above, the Company
shall engage a nationally recognized investment bank (the "Remarketing
Agent") pursuant to the Remarketing Agreement to sell such Preferred
Securities. In order to facilitate the remarketing, the Agent shall notify,
by 10:00 a.m., New York City time, on the fourth Business Day immediately
preceding the Purchase Contract Settlement Date, the Remarketing Agent of the
aggregate number of Preferred Securities to be remarketed. Concurrently, the
Collateral Agent, pursuant to the terms of the Pledge Agreement, will present
for remarketing such Preferred Securities to the Remarketing Agent. Upon
receipt of such notice from the Agent and such Preferred Securities from the
Collateral Agent, the Remarketing Agent will, on the third Business Day
immediately preceding the Purchase Contract Settlement Date, use its
reasonable efforts to remarket such Preferred Securities on such date at a
price of approximately 100.5% (but not less than 100%) of the aggregate
stated liquidation amount of such Preferred Securities, plus accrued and
unpaid distributions (including deferred distributions), if any, thereon.
After deducting as the remarketing fee ("Remarketing Fee") an amount not
exceeding 25 basis points (.25%) of the aggregate stated liquidation amount
of the remarketed Preferred Securities from any amount of such proceeds in
excess of the aggregate stated liquidation amount of the remarketed Preferred
Securities plus accrued and unpaid distributions (including any deferred
distributions), if any, then the Remarketing Agent will remit the entire
amount of the proceeds from such remarketing to the Collateral Agent. Such
portion of the proceeds, equal to the aggregate stated liquidation amount of
such Preferred Securities, will automatically be applied by the Collateral
Agent, in accordance with the Pledge Agreement to satisfy in full such Income
PRIDES holders' obligations to pay the Purchase Price for the Common Stock
under the related Purchase Contracts on the Purchase Contract Settlement
Date. Any proceeds in excess of those required to pay the Purchase Price and
the Remarketing Fee will be remitted to the Agent for payment to the Holders
of the related Income PRIDES. Income PRIDES Holders whose Preferred
Securities are so remarketed will not otherwise be responsible for the
payment of any Remarketing Fee in connection therewith. If, in spite of
using its reasonable efforts, the Remarketing Agent cannot remarket the
related Preferred Securities of such Holders of Income PRIDES at a price not
less then 100% of the aggregate stated liquidation amount of such Preferred
Securities plus accrued and unpaid distributions (including deferred
distributions), if any, the remarketing will be deemed to have failed (a
"Failed Remarketing") and in accordance with the terms of the Pledge
Agreement the Collateral Agent for the benefit of the Company will exercise
its rights as a secured party with respect to such Preferred Securities,
including those actions specified in paragraph (c) below; provided, that if
upon a Failed Remarketing the Collateral Agent exercises such rights for the
benefit of the Company with respect to such Preferred Securities, any accrued
and unpaid distributions (including any deferred distributions) on such
Preferred Securities will become payable by the Company to the Agent for
payment to the Beneficial Owner of the Income PRIDES to which such Preferred
Securities relates. Such payment will be made by the Company on or prior to
11 a.m. New York City time on the Purchase Contract Settlement Date in lawful
money of the United States by certified or cashiers' check or wire transfer
in immediately available funds payable to or upon the order of the Agent.
The Company will cause a notice of such Failed Remarketing to be published on
the Second Business Day immediately preceding the Purchase Contract
Settlement Date in a daily newspaper in the English language of general
circulation in The City of New York, which is expected to be The Wall Street
Journal.
(c) With respect to any Preferred Securities
beneficially owned by Holders who have elected Cash Settlement but failed to
deliver cash as required in (a)(ii) above, or with respect to Preferred
Securities which are subject to a 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 paragraph (h) below,
may, among other things, (i) retain the Preferred Securities in full
satisfaction of the Holders obligations under the Purchase Contracts or (ii)
sell the Preferred Securities in one or more public or private sales.
(d)(1) Unless a Holder of Growth PRIDES or Income PRIDES
(if a Tax Event Redemption has occurred) settles the underlying Purchase
Contract through the early delivery of cash to the Purchase Contract Agent in
the manner described in Section 5.9, each Holder of a Growth PRIDES or Income
PRIDES (if a Tax Event Redemption has occurred) must notify the Agent by use
of a notice in substantially the form of Exhibit E hereto of its intention to
pay in cash the Purchase Price for the shares of Common Stock to be purchased
pursuant to a Purchase Contract on or prior to 5:00 p.m., New York City time,
on the second Business Day immediately preceding the Purchase Contract
Settlement Date.
(2) A Holder of a Growth PRIDES or Income PRIDES (if a
Tax Event Redemption has occurred) who has so notified the Agent of its
intention to make a Cash Settlement in accordance with paragraph (d)(i) above
is required to pay the Purchase Price to the Collateral Agent prior to 11:00
a.m., New York City time, on the Business Day immediately preceding the
Purchase Contract Settlement Date in lawful money of the United States by
certified or cashiers' check or wire transfer, in each case in immediately
available funds payable to or upon the order of the Company. Any cash
received by the Collateral Agent will be invested promptly by the Collateral
Agent in Permitted Investments and paid to the Company on the Purchase
Contract Settlement Date in settlement of the Purchase Contract in accordance
with the terms of this Agreement and the Pledge Agreement. Any funds
received by the Collateral Agent in respect of the investment earnings from
the investment in such Permitted Investments will be distributed to the Agent
when received for payment to the Holder.
(3) If a Holder of a Growth PRIDES fails to notify the
Agent of its intention to make a Cash Settlement in accordance with paragraph
(d)(i) above, or if a Holder of an Income PRIDES (if a Tax Event Redemption
has occurred) does notify the Agent as provided in paragraph (d)(i) above its
intention to pay the Purchase Price in cash, but fails to make such payment
as required by paragraph (d)(ii) above, then upon the maturity of the Pledged
Treasury Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, held by the Collateral Agent on the
Business Day immediately prior to the Purchase Contract Settlement Date, the
principal amount of the Treasury Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be, received by
the Collateral Agent will be invested promptly in overnight Permitted
Investments. On the Purchase Contract Settlement Date an amount equal to the
Purchase Price will be remitted to the Company as payment thereof without
receiving any instructions from the Holder. In the event the sum of the
proceeds from the related Pledged Treasury Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
and the investment earnings earned from such investments is in excess of the
aggregate Purchase Price of the Purchase Contracts being settled thereby, the
Collateral Agent will distribute such excess to the Agent for the benefit of
the Holder of the related Growth PRIDES or Income PRIDES when received.
(e) Any distribution to Holders of excess funds and
interest described 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,
by check mailed to the address of the Person entitled thereto at such address
as it appears on the Register.
(f) Unless a Holder settles the underlying Purchase
Contract through the early delivery of cash to the Collateral Agent in the
manner described herein, the Company shall not be obligated to issue any
shares of Common Stock in respect of a Purchase Contract or deliver any
certificate therefor to the Holder unless it shall have received payment in
full of the Purchase Price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
(g) Upon Cash Settlement of any Purchase Contract, (i)
the Collateral Agent will in accordance with the terms of the Pledge
Agreement cause the Pledged Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
or the Pledged Treasury Securities underlying the relevant Security to be
released from the Pledge by the Collateral Agent free and clear of any
security interest of the Company and transferred to the Agent for delivery to
the Holder thereof or its designee as soon as practicable and (ii) subject to
the receipt thereof from the Collateral Agent, the Agent shall, by book-entry
transfer, or other appropriate procedures, in accordance with instructions
provided by the Holder thereof, transfer such Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be, or such Treasury Securities (or, if no such instructions are
given to the Agent by the Holder, the Agent shall hold such Preferred
Securities or the Treasury Portfolio, as the case may be, or such Treasury
Securities, and any distribution thereon, in the name of the Agent or its
nominee in trust for the benefit of such Holder).
(h) The obligations of the Holders to pay the Purchase
Price are non-recourse obligations and are payable solely out of any Cash
Settlement or the proceeds of any Collateral Pledged to secure the
obligations of the Holders and in no event will Holders be liable for any
deficiency between the proceeds of Collateral disposition and the Purchase
Price.
Section 5.5. Issuance of Shares of Common Stock.
Unless a Termination Event shall have occurred on or prior
to the Purchase Contract Settlement Date or an Early Settlement shall have
occurred, on the Purchase Contract Settlement Date, upon its receipt of
payment in full of the Purchase Price for the shares of Common Stock
purchased by the Holders pursuant to the foregoing provisions of this Article
and subject to Section 5.6(b), the Company shall issue and deposit with the
Agent, for the benefit of the Holders of the Outstanding Securities, one or
more certificates representing the 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 Purchase Contract Settlement
Date, being hereinafter referred to as the "Purchase Contract Settlement
Fund") to which the Holders are entitled hereunder. Subject to the
foregoing, upon surrender of a Certificate to the Agent on or after the
Purchase Contract Settlement 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 Five (after taking into
account all Securities then held by such Holder) together with cash in lieu
of fractional shares as provided in Section 5.10 and any dividends or
distributions with respect to such shares constituting part of the 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 the Certificate evidencing such Purchase
Contract or has established to the satisfaction of the Company that such tax
either has been paid or is not payable.
Section 5.6. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock
Splits, Etc.
(1) In case the Company shall pay or make a dividend or
other distribution on 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 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 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) In case the Company shall issue rights, options or
warrants to all holders of its Common Stock (not being available on an
equivalent basis to Holders of the Securities upon settlement of the Purchase
Contracts underlying such Securities) entitling them, for a period expiring
within 45 days after the record date for the determination of stockholders
entitled to receive such rights, options or warrants, to subscribe for or
purchase shares of Common Stock at a price per share less than the Current
Market Price per share of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights, options or
warrants (other than pursuant to a dividend reinvestment plan), the
Settlement Rate, in effect at the opening of business on the day following
the date fixed for such determination shall be increased by dividing such
Settlement Rate, by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common Stock
so offered for subscription or purchase would purchase at such Current Market
Price and the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock so offered for subscription or
purchase, such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination. For the
purposes of this paragraph (2), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company
but shall include 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.
(3) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common Stock, the
Settlement Rate, in effect at the opening of business on the day following
the day upon which such subdivision or split becomes effective shall be
proportionately increased, and, conversely, in case outstanding shares of
Common Stock shall each be combined into a smaller number of shares of Common
Stock, the Settlement Rate, in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day
following the day upon which such subdivision, split or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness
or assets (including securities, but excluding any rights or warrants
referred to in paragraph (2) of this Section, any dividend or distribution
paid exclusively in cash and any dividend or distribution referred to in
paragraph (1) of this Section), the Settlement Rate, shall be adjusted so
that the same shall equal the rate determined by dividing the Settlement Rate
in effect immediately prior to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the Current Market Price per share
of the Common Stock on the date fixed for such determination less the then
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution filed
with the Agent) of the portion of the assets or evidences of indebtedness so
distributed applicable to one share of Common Stock and the denominator shall
be such Current Market Price per share of the Common Stock, such adjustment
to become effective immediately prior to the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive such distribution. In any case in which this paragraph (4) is
applicable, paragraph (2) of this Section shall not be applicable.
(5) In case the Company shall, (I) by dividend or
otherwise, distribute to all holders of its Common Stock cash (excluding any
cash that is distributed in a Reorganization Event to which Section 5.6(b)
applies or as part of a distribution referred to in paragraph (4) of this
Section) in an aggregate amount that, combined together with (II) the
aggregate amount of any other distributions to all holders of its Common
Stock made exclusively in cash within the 12 months preceding the date of
payment of such distribution and in respect of which no adjustment pursuant
to this paragraph (5) or paragraph (6) of this Section has been made and
(III) the aggregate of any cash plus the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and described
in a Board Resolution) of consideration payable in respect of any tender or
exchange offer by the Company or any of its subsidiaries for all or any
portion of the Common Stock concluded within the 12 months preceding the date
of payment of the distribution described in clause (I) above and in respect
of which no adjustment pursuant to this paragraph (5) or paragraph (6) of
this Section has been made, exceeds 15% of the product of the Current Market
Price per share of the Common Stock on the date for the determination of
holders of shares of Common Stock entitled to receive such distribution times
the number of shares of Common Stock outstanding on such date, then, and in
each such case, immediately after the close of business on such date for
determination, the Settlement Rate, shall be increased so that the same shall
equal the rate determined by dividing the Settlement Rate in effect
immediately prior to the close of business on the date fixed for
determination of the stockholders entitled to receive such distribution by a
fraction (i) the numerator of which shall be equal to the Current Market
Price per share of the Common Stock on the date fixed for such determination
less an amount equal to the quotient of (x) the combined amount distributed
or payable in the transactions described in clauses (I), (II) and (III) above
and (y) the number of shares of Common Stock outstanding on such date for
determination and (ii) the denominator of which shall be equal to the Current
Market Price per share of the Common Stock on such date for determination.
(6) In case (I) a tender or exchange offer made by the
Company or any subsidiary of the Company for all or any portion of the Common
Stock shall expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to stockholders (based on the
acceptance (up to any maximum specified in the terms of the tender or
exchange offer) of Purchased Shares) of an aggregate consideration having a
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution) that
combined together with (II) the aggregate of the cash plus the fair market
value (as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), as of the expiration of such
tender or exchange offer, of consideration payable in respect of any other
tender or exchange offer, by the Company or any subsidiary of the Company for
all or any portion of the Common Stock expiring within the 12 months
preceding the expiration of such tender or exchange offer and in respect of
which no adjustment pursuant to paragraph (5) of this Section or this
paragraph (6) has been made and (III) the aggregate amount of any
distributions to all holders of the Company's Common Stock made exclusively
in cash within the 12 months preceding the expiration of such tender or
exchange offer and in respect of which no adjustment pursuant to paragraph
(5) of this Section or this paragraph (6) has been made, exceeds 15% of the
product of the Current Market Price per share of the Common Stock as of the
last time (the "Expiration Time") tenders could have been made pursuant to
such tender or exchange offer (as it may be amended) times the number of
shares of Common Stock outstanding (including any tendered shares) on the
Expiration Time, then, and in each such case, immediately prior to the
opening of business on the day after the date of the Expiration Time, the
Settlement Rate, shall be adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate immediately prior to the close of
business on the date of the Expiration Time by a fraction (i) the numerator
of which shall be equal to (A) the product of (I) the Current Market Price
per share of the Common Stock on the date of the Expiration Time and (II) the
number of shares of Common Stock outstanding (including any tendered shares)
on the Expiration Time less (B) the amount of cash plus the fair market value
(determined as aforesaid) of the aggregate consideration payable to
stockholders based on the transactions described in clauses (I), (II) and
(III) above (assuming in the case of clause (I) the acceptance, up to any
maximum specified in the terms of the tender or exchange offer, of Purchased
Shares), and (ii) the denominator of which shall be equal to the product of
(A) the Current Market Price per share of the Common Stock as of the
Expiration Time and (B) the number of shares of Common Stock outstanding
(including any tendered shares) as of the Expiration Time less the number of
all shares validly tendered and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares").
(7) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any reclassification
upon a Reorganization Event to which Section 5.6(b) applies) shall be deemed
to involve (a) a distribution of such securities other than Common Stock to
all holders of Common Stock (and the effective date of such reclassification
shall be deemed to be "the date fixed for the determination of stockholders
entitled to receive such distribution" and the "date fixed for such
determination" within the meaning of paragraph (4) of this Section), and (b)
a subdivision, split or combination, as the case may be, of the number of
shares of Common Stock outstanding immediately prior to such reclassification
into the number of shares of Common Stock outstanding immediately thereafter
(and the effective date of such reclassification shall be deemed to be "the
day upon which such subdivision or split becomes effective" or "the day upon
which such combination becomes effective", as the case may be, and "the day
upon which such subdivision, split or combination becomes effective" within
the meaning of paragraph (3) of this Section).
(8) The "Current Market Price" per share of Common Stock
on any day means the average of the daily Closing Prices for the 5
consecutive Trading Days selected by the Company commencing not more than 30
Trading Days before, and ending not later than, the earlier of the day in
question and the day before the "ex date" with respect to the issuance or
distribution requiring such computation. For purposes of this paragraph, the
term "ex date", when used with respect to any issuance or distribution, shall
mean the first date on which the Common Stock trades regular way on such
exchange or in such market without the right to receive such issuance or
distribution.
(9) All adjustments to the Settlement Rate, shall be
calculated to the nearest 1/10,000th of a share of Common Stock (or if there
is not a nearest 1/10,000th of a share to the next lower 1/10,000th of a
share). No adjustment in the Settlement Rate shall be required unless such
adjustment would require an increase or decrease of at least one percent
therein; provided, however, that any adjustments which by reason of this
subparagraph are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. If an adjustment is made to the
Settlement Rate pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
(10) of this Section 5.6(a), an adjustment shall also be made to the
Applicable Market Value solely to determine which of clauses (a), (b) or (c)
of the definition of Settlement Rate in Section 5.1 will apply on the
Purchase Contract Settlement Date. Such adjustment shall be made by
multiplying the Applicable Market Value by a fraction of which the numerator
shall be the Settlement Rate immediately after such adjustment pursuant to
paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section 5.6(a)
and the denominator shall be the Settlement Rate immediately before such
adjustment; provided, however, 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
5.6(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) The Company may make such increases in the
Settlement Rate, in addition to those required by this Section, as it
considers to be advisable in order to avoid or diminish any income tax to any
holders of shares of Common Stock resulting from any dividend or distribution
of stock or issuance of rights or warrants to purchase or subscribe for stock
or from any event treated as such for income tax purposes or for any other
reasons.
(b) Adjustment for Consolidation, Merger or Other
Reorganization Event. In the event of (i) any consolidation or merger of the
Company with or into another Person (other than a merger or consolidation in
which the Company is the continuing corporation and in which the Common Stock
outstanding immediately prior to the merger or consolidation is not exchanged
for cash, securities or other property of the Company or another
corporation), (ii) any sale, transfer, lease or conveyance to another Person
of the property of the Company as an entirety or substantially as an
entirety, (iii) any statutory exchange of securities of the Company with
another Person (other than in connection with a merger or acquisition) or
(iv) any liquidation, dissolution or winding up of the Company other than as
a result of or after the occurrence of a Termination Event (any such event, a
"Reorganization Event"), the Settlement Rate will be adjusted to provide that
each Holder of Securities will receive on the Purchase Contract Settlement
Date with respect to each Purchase Contract forming a part thereof, the kind
and amount of securities, cash and other property receivable upon such
Reorganization Event (without any interest thereon, and without any right to
dividends or distribution thereon which have a record date that is prior to
the Purchase Contract Settlement Date) by a Holder of the number of shares of
Common Stock issuable on account of each Purchase Contract if the Purchase
Contract Settlement Date had occurred immediately prior to such
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 Holders of each Outstanding
Security shall have the rights provided by this Section 5.6. Such
supplemental agreement shall provide for adjustments which, for events
subsequent to the effective date of such supplemental agreement, shall be as
nearly equivalent as may be practicable to the adjustments provided for in
this Section. The above provisions of this Section shall similarly apply to
successive Reorganization Events.
Section 5.7. Notice of Adjustments and Certain Other
Events.
(a) Whenever the Settlement Rate is adjusted as herein
provided, the Company shall:
(1) forthwith compute the Settlement Rate in accordance
with Section 5.6 and prepare and transmit to the Agent an Officer's
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
(2) within 10 Business Days following the occurrence of
an event that requires an adjustment to the Settlement Rate pursuant
to Section 5.6 (or if the Company is not aware of such occurrence, as
soon as practicable after becoming so aware), provide a written
notice to the Holders of the Securities of the occurrence of such
event and a statement in reasonable detail setting forth the method
by which the adjustment to the Settlement Rate was determined and
setting forth the adjusted Settlement Rate.
(b) The Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts
exist which may require any adjustment of the Settlement Rate, or with
respect to the nature or extent or calculation of any such adjustment when
made, or with respect to the method employed in making the same. The Agent
shall not be accountable with respect to the validity or value (or the kind
or amount) of any shares of Common Stock, or of any securities or property,
which may at the time be issued or delivered with respect to any Purchase
Contract; and the Agent makes no representation with respect thereto. The
Agent shall not be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock pursuant to a Purchase
Contract or to comply with any of the duties, responsibilities or covenants
of the Company contained in this Article.
Section 5.8. Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
of the Holders to receive and the obligation of the Company to pay any
Contract Adjustment Payments or Deferred Contract Adjustment Payments, if the
Company shall have such obligation, and the rights and obligations of Holders
to purchase Common Stock, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Agent or the
Company, if, on or prior to the Purchase Contract Settlement Date, a
Termination Event shall have occurred. Upon and after the occurrence of a
Termination Event, the Securities shall thereafter represent the right to
receive the Preferred Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, forming a part of
such Securities in the case of Income PRIDES, or Treasury Securities in the
case of Growth PRIDES, in 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 5.9. Early Settlement.
(a) Subject to and upon compliance with the provisions
of this Section 5.9, at the option of the Holder thereof, Purchase Contracts
underlying Securities, having an aggregate Stated Amount equal to $1,000 or
an integral multiple thereof, may be settled early ("Early Settlement") in
the case of Income PRIDES (unless a Tax Event Redemption has occurred) on or
prior to the fifth Business Day immediately preceding the Purchase Contract
Settlement Date and in the case of Growth PRIDES on or prior to the second
Business Day immediately preceding the Purchase Contract Settlement Date, in
each case, as provided herein; provided however, that if a Tax Event
Redemption has occurred and the Treasury Portfolio has become a component of
the Income PRIDES Purchase Contracts, underlying Income PRIDES may be settled
early, on or prior to the second Business Day immediately preceding the
Purchase Contract Settlement Date, but only in an aggregate amount of
$8,000,000 or in an integral multiple thereof. In order to exercise the
right to effect Early Settlement with respect to any Purchase Contracts, the
Holder of the Certificate evidencing Securities 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 (i) the product of (A) the Stated Amount times
(B) the number of Purchase Contracts with respect to which the Holder has
elected to effect Early Settlement plus (ii) if such delivery is made with
respect to any Purchase Contracts during the period from the close of
business on any Record Date next preceding any Payment Date to the opening of
business on such Payment Date, an amount equal to the sum of (x) the Contract
Adjustment Payments payable on such Payment Date with respect to such
Purchase Contracts plus (y) in the case of Income PRIDES Certificate, the
distributions on the related Preferred Securities payable on such Payment
Date. Except as provided in the immediately preceding sentence and subject
to the second to last paragraph of Section 5.2, no payment or adjustment
shall be made upon Early Settlement of any Purchase Contract on account of
any Contract Adjustment Payments accrued on such Purchase Contract or on
account of any dividends on the Common Stock issued upon such Early
Settlement. If the foregoing requirements are first satisfied with respect
to Purchase Contracts underlying any Securities at or prior to 5:00 p.m., New
York City time, on a Business Day, such day shall be the "Early Settlement
Date" with respect to such Securities and if such requirements are first
satisfied after 5:00 p.m., New York City time, on a Business Day or on a day
that is not a Business Day, the "Early Settlement Date" with respect to such
Securities shall be the next succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a
Holder of the related Securities, the Company shall issue, and the Holder
shall be entitled to receive, _____ shares of Common Stock on account of
each Purchase Contract as to which Early Settlement is effected (the "Early
Settlement Rate"); provided, however, that upon the Early Settlement of the
Purchase Contracts, the Holder of such related Securities will forfeit the
right to receive any Deferred Contract Adjustment Payments. The Early
Settlement Rate shall be adjusted in the same manner and at the same time as
the Settlement Rate is adjusted. As promptly as practicable after Early
Settlement of Purchase Contracts in accordance with the provisions of this
Section 5.9, the Company shall issue and shall deliver to the Agent at the
Corporate Trust Office a certificate or certificates for the full number of
shares of Common Stock issuable upon such Early Settlement together with
payment in lieu of any fraction of a share, as provided in Section 5.10.
(c) 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 Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, in the
case of Income PRIDES, or the related Treasury Securities, in the case of
Growth PRIDES, 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.
(d) Upon Early Settlement of any Purchase Contracts, and
subject to receipt of shares of Common Stock from the Company and the
Preferred Securities, the appropriate Applicable Ownership Interest of the
Treasury Portfolio or 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 Securities, (i) transfer to the Holder the Preferred Securities,
Treasury Portfolio or Treasury Securities, as the case may be, forming a part
of such Securities, 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 Securities
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
Securities as to which Early Settlement was not effected.
Section 5.10. No Fractional Shares.
No fractional shares or scrip representing fractional shares
of Common Stock shall be issued or delivered upon settlement on the Purchase
Contract Settlement Date or upon 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 Purchase Contract Settlement Date or upon Early
Settlement, the Company, through the Agent, shall make a cash payment in
respect of such fractional interest in an amount equal to the value of such
fractional shares 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.
Section 5.11. Charges and Taxes.
The Company will pay all stock transfer and similar taxes
attributable to the initial issuance and delivery of the shares of Common
Stock pursuant to the Purchase Contracts and in payment of any Deferred
Contract Adjustment Payments; provided, however, that the Company shall not
be required to pay any such tax or taxes which may be payable in respect of
any exchange of or substitution for a Certificate evidencing a Security 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 Securities
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 or until the Person or Persons requesting
the transfer or issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that
such tax has been paid.
ARTICLE VI
Remedies
Section 6.1. Unconditional Right of Holders to Receive
Contract Adjustment Payments and to
Purchase Common Stock.
In the event that Contract Adjustment Payments shall
constitute a component of Income PRIDES or Growth PRIDES, the Holder of any
Income PRIDES or Growth PRIDES shall have the right, which is absolute and
unconditional (subject to the right of the Company to defer payment thereof
pursuant to Section 5.3, the prepayment of Contract Adjustment Payments
pursuant to Section 5.9(a) and to the forfeiture of any Deferred Contract
Adjustment Payments upon Early Settlement pursuant to Section 5.9(b) or upon
the occurrence of a Termination Event), to receive payment of each
installment of the Contract Adjustment Payments with respect to the Purchase
Contract constituting a part of such Security on the respective Payment Date
for such Security and to purchase Common Stock pursuant to such Purchase
Contract and, in each such case, to institute suit for the enforcement of any
such payment and right to purchase Common Stock, and such rights shall not be
impaired without the consent of such Holder.
Section 6.2. 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
Income PRIDES or Growth PRIDES, by its acceptance of such Income PRIDES or
Growth PRIDES 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 Securities, or to any suit instituted by any
Holder for the enforcement of distributions on any Preferred Securities or
Contract Adjustment Payments, if any, on any Purchase Contract on or after
the respective Payment Date therefor in respect of any Security held by such
Holder, or for enforcement of the right to purchase shares of Common Stock
under the Purchase Contracts constituting part of any Security held by such
Holder.
Section 6.6. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Agreement; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Agent or the Holders,
but will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE VII
The Agent
Section 7.1. Certain Duties and Responsibilities.
(a)(1) The Agent undertakes to perform, with respect to the
Securities, such duties and only such duties as are specifically set forth in
this Agreement and the Pledge Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Agent; and
(2) in the absence of bad faith or negligence on its
part, the Agent may, with respect to the Securities, conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Agent and conforming
to the requirements of this Agreement, but in the case of any certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Agent, the Agent shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Agreement.
(b) No provision of this Agreement shall be construed to
relieve the Agent from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Agent was negligent in ascertaining the
pertinent facts; and
(3) no provision of this Agreement shall require the
Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
adequate indemnity is not provided to it.
(c) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the
liability of or affording protection to the Agent shall be subject to the
provisions of this Section.
(d) The Agent is authorized to execute and deliver the
Pledge Agreement in its capacity as Agent.
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
Securities, 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 rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by an Officer's 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 Officer's
Certificate of the Company;
(d) the Agent may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Agent, in its
discretion, may make reasonable further inquiry or investigation into
such facts or matters related to the 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; and
(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 and the Agent shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
or an Affiliate appointed with due care by it hereunder.
Section 7.4. Not Responsible for Recitals or Issuance of
Securities.
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 Securities, or
of the Pledge Agreement or the Pledge. The Agent shall not be accountable
for the use or application by the Company of the proceeds in respect of the
Purchase Contracts.
Section 7.5. May Hold Securities.
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 Securities and may otherwise deal with the
Company, the Collateral Agent or any other Person with the same rights it
would have if it were not 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 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:
(1) to pay to the Agent from time to time reasonable
compensation for all services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to
reimburse the Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in
accordance with any provision of this Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Agent and any predecessor Agent
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of its duties
hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
Section 7.8. 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 a Corporate Trust Office in the Borough of Manhattan,
The City of New York, if there be such a corporation in the Borough of
Manhattan, The City of New York, qualified and eligible under this Article
and willing to act on reasonable terms. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time
the Agent shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 7.9. 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.
(b) The Agent may resign at any time by giving written
notice thereof to the Company 60 days prior to the effective date of such
resignation. If the instrument of acceptance by a successor Agent required
by Section 7.10 shall not have been delivered to the Agent within 30 days
after the giving of such notice of resignation, the resigning Agent may
petition any court of competent jurisdiction for the appointment of a
successor Agent.
(c) The Agent may be removed at any time by Act of the
Holders of a majority in number of the Outstanding Securities delivered to
the Agent and the Company.
(d) if at any time
(1) the Agent fails to comply with Section 310(b) of the
TIA, as if the Agent were an indenture trustee under an indenture
qualified under the TIA, after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Agent shall cease to be eligible under Section
7.8 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, (i) the Company by a Board Resolution may remove the
Agent, or (ii) any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Agent and the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Agent for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Agent and shall comply with the applicable requirements of
Section 7.10. If no successor Agent shall have been so appointed by the
Company and accepted appointment in the manner required by Section 7.10,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competentjurisdiction for the appointment of a
successor Agent.
(f) The Company shall give, or shall cause such
successor Agent to give, notice of each resignation and each removal of the
Agent and each appointment of a successor Agent by mailing written notice of
such event by first-class mail, postage prepaid, to all Holders 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, 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 by
merger, conversion or consolidation to such Agent may 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 Securities.
Section 7.12. Preservation of Information; Communications
to Holders.
(a) The Agent shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders received by the
Agent in its capacity as Registrar.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Agent, and furnish to the Agent
reasonable proof that each such applicant has owned a Security for a period
of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Agent
shall, 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 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 obligations and shall not be subject to any liability
under this Agreement, the Pledge Agreement or any Purchase Contract in
respect of the obligations of the Holder of any Security thereunder. The
Company agrees, and each Holder of a Certificate, by his 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 hereof.
Section 7.14. Tax Compliance.
(a) The Agent, on its own behalf and on behalf of the
Company, will comply with all applicable certification, information reporting
and withholding (including "backup" withholding) requirements imposed by
applicable tax laws, regulations or administrative practice with respect to
(i) any payments made with respect to the Securities or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Securities. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of
all amounts required to be withheld to the appropriate taxing authority or
its designated agent.
(b) The Agent shall comply with any written direction
received from the Company with respect to the application of such
requirements to particular payments or Holders or in other particular
circumstances, and may for purposes of this Agreement rely on any such
direction in accordance with the provisions of Section 7.1(a)(2) hereof.
(c) The Agent shall maintain all appropriate records
documenting compliance with such requirements, and shall make such records
available, on written request, to the Company or 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:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Certificates; or
(2) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company; or
(3) to evidence and provide for the acceptance of
appointment hereunder by a successor Agent; or
(4) to make provision with respect to the rights of
Holders pursuant to the requirements of Section 5.6(b); or
(5) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions
herein, or to make any other provisions with respect to such matters
or questions arising under this Agreement, provided such action shall
not adversely affect the interests of the Holders.
Section 8.2. Supplemental Agreements with Consent of
Holders.
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 Securities; provided, however,
that, except as contemplated herein, no such supplemental agreement shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change any Payment Date;
(2) change the amount or 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 Income PRIDES to substitute the Treasury
Securities for the Pledge Preferred Securities or the rights of
holders of Growth PRIDES to substitute Preferred Securities for the
Pledged Treasury Securities) or otherwise adversely affect the
Holder's rights in or to such Collateral or adversely alter the
rights in or to such Collateral;
(3) reduce any Contract Adjustment Payments or any
Deferred Contract Adjustment Payment, or change any place where, or
the coin or currency in which, any Contract Adjustment Payments is
payable;
(4) impair the right to institute suit for the
enforcement of any Purchase Contract;
(5) reduce the number of shares of Common Stock to be
purchased pursuant to any Purchase Contract, increase the price to
purchase shares of Common Stock upon settlement of any Purchase
Contract, change the Purchase Contract Settlement 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 Income PRIDES or the Growth PRIDES, then only the affected
class of 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.
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
entitled to receive 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.
ARTICLE IX
Consolidation, Merger, Sale or Conveyance
Section 9.1. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain
Conditions.
The Company covenants that it will not merge or consolidate
with any other Person or sell, assign, transfer, lease or convey all or
substantially all of its properties and assets to any Person or group of
affiliated Persons in one transaction or a series of related transactions,
unless (i) either the Company shall be the continuing corporation, or the
successor (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof or
the District of Columbia and such corporation shall expressly assume all the
obligations of the Company under the Purchase Contracts, this Agreement and
the Pledge Agreement by one or more supplemental agreements in form
reasonably satisfactory to the Agent and the Collateral Agent, executed and
delivered to the Agent and the Collateral Agent by such corporation, and (ii)
the Company or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale, assignment,
transfer, lease or conveyance, be in default in the performance of any
covenant or condition hereunder, under any of the Securities or under the
Pledge Agreement.
Section 9.2. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, assignment,
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 Ingersoll-Rand Company any or all of the Certificates evidencing
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Agent; and, upon the order of such successor
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Agreement prescribed, the Agent shall authenticate
and execute on behalf of the Holders and deliver any 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 Securities 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.
In case of any such consolidation, merger, sale, assignment,
transfer, lease or conveyance such change in phraseology and form (but not in
substance) may be made in the Certificates evidencing Securities 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 Securities that it will duly and punctually
perform its obligations under the Purchase Contracts in accordance with the
terms of the Purchase Contracts and this Agreement.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The
City of New York an office or agency where Certificates may be presented or
surrendered for acquisition of shares of Common Stock upon settlement of the
Purchase Contracts on the Purchase Contract Settlement Date or Early
Settlement and for transfer of Collateral upon occurrence of a Termination
Event, where Certificates may be surrendered for registration of transfer or
exchange, for a Collateral Substitution or re-establishment of an Income
PRIDES and where notices and demands to or upon the Company in respect of the
Securities and this Agreement may be served. The Company will give prompt
written notice to the Agent of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Agent with
the address thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office, and the Company hereby
appoints the Agent as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where Certificates may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Agent of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby designates as the place of payment for
the Securities the Corporate Trust Office and appoints the Agent at its
Corporate Trust Office as paying agent in such city.
Section 10.3. Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase
Contract Settlement Date reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock the full number of
shares of Common Stock issuable against tender of payment in respect of all
Purchase Contracts constituting a part of the Securities 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 Securities 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
Officer's 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
INGERSOLL-RAND COMPANY
By:____________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as
Purchase Contract Agent
By:____________________________
Name:
Title:
EXHIBIT A
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 Water Street, New York,
New York) 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.
No. _____ Cusip No.
Number of Income PRIDES _______
Form of Face of Income PRIDES Certificate
____% Income PRIDES
This Income PRIDES Certificate certifies that ___________ is
the registered Holder of the number of Income PRIDES set forth above. Each
Income PRIDES represents (i) either (a) beneficial ownership by the Holder of
one ____% Trust Originated Preferred Security (the "Preferred Security") of
Ingersoll-Rand Financing I, a Delaware statutory business trust (the
"Trust"), having a stated liquidation amount of $10, subject to the Pledge of
such Preferred Security by such Holder pursuant to the Pledge Agreement or
(b) upon the occurrence of a Tax Event Redemption prior to the Purchase
Contract Settlement Date, the appropriate Applicable Ownership Interest of
the Treasury Portfolio, subject to the Pledge of such Applicable Ownership
Interest of the Treasury Portfolio by such Holder pursuant to the Pledge
Agreement, and (ii) the rights and obligations of the Holder under one
Purchase Contract with Ingersoll-Rand Company, a New Jersey 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 Preferred Securities
or the appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be, constituting part of each Income PRIDES evidenced hereby
have been pledged to the Collateral Agent, for the benefit of the Company, to
secure the obligations of the Holder under the Purchase Contract comprising a
portion of such Income PRIDES.
The Pledge Agreement provides that all payments of the
Stated Amount of or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) in the Treasury
Portfolio, as the case may be, or cash distributions on, any Pledged
Preferred Securities (as defined in the Pledge Agreement) or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
constituting part of the Income PRIDES 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) cash distributions with respect to Pledged Preferred Securities
or the appropriate Applicable Ownership Interest (as specified in clause (B)
of the definition of such term) of the Treasury Portfolio, as the case may
be, and (B) any payments of the Stated Amount or the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of such
terms) of the Treasury Portfolio, as the case may be, with respect to any
Preferred Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, 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 2:00 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 12:30 p.m., New York City time, on a Business
Day, then such payment shall be made no later than 10:30 a.m., New York City
time, on the next succeeding Business Day) and (ii) in the case of payments
of the Stated Amount or the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) in the Treasury
Portfolio, as the case may be, of any Pledged Preferred Securities or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) in the Treasury Portfolio, as the case may be, to
the Company on the Purchase Contract Settlement 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 Income PRIDES of which such
Pledged Preferred Securities or the Treasury Portfolio, as the case may be,
are a part under the Purchase Contracts forming a part of such Income PRIDES.
Distributions on any Preferred Security or the appropriate Applicable
Ownership Interest (as specified in clause (B) of the definition of such
term) of the Treasury Portfolio, as the case may be, forming part of an
Income PRIDES evidenced hereby which are payable quarterly in arrears on
February 16, May 16, August 16 and November 16 each year, commencing
______________, 1998 (a "Payment Date"), shall, subject to receipt thereof by
the Agent from the Collateral Agent, be paid to the Person in whose name this
Income PRIDES Certificate (or a Predecessor Income PRIDES 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 Income PRIDES Certificate to purchase, and the Company to sell, on
____________, 2001 (the "Purchase Contract Settlement Date"), at a price
equal to $10 (the "Stated Amount"), a number of shares of Common Stock, no
par value ("Common Stock"), of the Company, equal to the Settlement Rate,
unless on or prior to the Purchase Contract Settlement Date there shall have
occurred a Termination Event or an Early Settlement with respect to the
Income PRIDES 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 (the "Purchase Price") for the shares of Common
Stock purchased pursuant to each Purchase Contract evidenced hereby, if not
paid earlier, shall be paid on the Purchase Contract Settlement Date by
application of payment received in respect of the Stated Amount or the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, as the case may be, of
the Pledged Preferred Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be, pledged to secure the
obligations under such Purchase Contract of the Holder of the Income PRIDES
of which such Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of
each Purchase Contract forming part of an Income PRIDES evidenced hereby an
amount (the "Contract Adjustment Payments") equal to % per annum of the
Stated Amount, computed on the basis of a 360 day year of twelve 30 day
months, subject to deferral at the option of the Company as provided in the
Purchase Contract Agreement and more fully described on the reverse hereof.
Such Contract Adjustment Payments shall be payable to the Person in whose
name this Income PRIDES Certificate (or a Predecessor Income PRIDES
Certificate) is registered at the close of business on the Record Date for
such Payment Date.
Distributions on the Preferred Securities or the appropriate
Applicable Ownership Interest (as specified in clause (B) of the definition
of such term) of the Treasury Portfolio, as the case may be, and Contract
Adjustment Payments will be payable at the office of the Agent in The City of
New York or, at the option of the Company, by check mailed to the address of
the Person entitled thereto as such address appears on the Income PRIDES
Register.
Reference is hereby made to the further provisions set forth
on the reverse hereof, which further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Agent by manual signature, this Income PRIDES Certificate
shall not be entitled to any benefit under the Pledge Agreement or the
Purchase Contract Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed.
INGERSOLL-RAND COMPANY
By:____________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts evidenced hereby)
By: THE FIRST NATIONAL BANK OF
CHICAGO, not individually but
solely as Attorney-in-Fact of
such Holder
By:____________________________________
Name:
Title:
Dated:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Income PRIDES Certificates referred to in
the within mentioned Purchase Contract Agreement.
By: THE FIRST NATIONAL BANK OF
CHICAGO, as Purchase Contract
Agent
By:_________________________________
Authorized Officer
(Form of Reverse of Income PRIDES Certificate)
Each Purchase Contract evidenced hereby is governed by a
Purchase Contract Agreement, dated as of _______ ___, 1998 (as may be
supplemented from time to time, the "Purchase Contract Agreement"), between
the Company and The First National Bank of Chicago, as Purchase Contract
Agent (herein called the "Agent"), to which Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Agent, the Company, and the Holders and of the
terms upon which the Income PRIDES Certificates are, and are to be, executed
and delivered.
Each Purchase Contract evidenced hereby obligates the Holder
of this Income PRIDES Certificate to purchase, and the Company to sell, on
the Purchase Contract Settlement Date at a price equal to the Stated Amount
(the "Purchase Price"), a number of shares of Common Stock of the Company
equal to the Settlement Rate, unless, on or prior to the Purchase Contract
Settlement Date, there shall have occurred a Termination Event with respect
to the Security of which such Purchase Contract is a part or an Early
Settlement shall have occurred. The "Settlement Rate" is equal to (a) if the
Applicable Market Value (as defined below) is equal to or greater than $
(the "Threshold Appreciation Price"), shares of Common Stock per
Purchase Contract, (b) if the Applicable Market Value is less than the
Threshold Appreciation Price but is greater than $ , 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 Amount is less
than or equal to $ , 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.
Each Purchase Contract evidenced hereby, which is settled
either through Early Settlement or Cash Settlement, shall obligate the Holder
of the related Income PRIDES to purchase at the Purchase Price, and the
Company to sell, a number of newly issued shares of Common Stock equal to the
Early Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the
Closing Price per share of Common Stock on each of the 20 consecutive Trading
Days ending on the third Trading Day immediately preceding the Purchase
Contract Settlement Date. The "Closing Price" of the Common Stock on any
date of determination means the closing sale price (or, if no closing price
is reported, the last reported sale price) of the Common Stock on the New
York Stock Exchange (the "NYSE") on such date or, if the Common Stock is not
listed for trading on the NYSE on any such date, as reported in the composite
transactions for the principal United States securities exchange on which the
Common Stock is so listed, or if the Common Stock is not so listed on a
United States national or regional securities exchange, as reported by The
Nasdaq Stock Market, or, if the Common Stock is not so reported, the last
quoted bid price for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization, or, if
such bid price is not available, the market value of the Common Stock on such
date as determined by a nationally recognized independent investment banking
firm retained for this purpose by the Company. A "Trading Day" means a day
on which the Common Stock (A) is not suspended from trading on any national
or regional securities exchange or association or over-the-counter market at
the close of business and (B) has traded at least once on the national or
regional securities exchange or association or over-the-counter market that
is the primary market for the trading of the Common Stock.
In accordance with the terms of the Purchase Contract
Agreement, the Holder of this Income PRIDES Certificate shall pay the
Purchase Price for the shares of Common Stock purchased pursuant to each
Purchase Contract evidenced hereby by effecting a Cash Settlement, or an
Early Settlement or from the proceeds of a remarketing of the related Pledged
Preferred Securities of such holders. A Holder of Income PRIDES who does not
elect, on or prior to 5:00 p.m. New York City time on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, to make an
effective Cash Settlement or an Early Settlement, shall pay the Purchase
Price for the shares of Common Stock to be issued under the related Purchase
Contract from the Proceeds of the sale of the related Pledged Preferred
Securities held by the Collateral Agent. Such sale will be made by the
Remarketing Agent pursuant to the terms of the Remarketing Agreement and the
Remarketing Underwriting Agreement on the third Business Day immediately
preceding the Purchase Contract Settlement Date. If, as provided in the
Purchase Contract Agreement, upon the occurrence of a Failed Remarketing the
Collateral Agent, for the benefit of the Company, exercises its rights as a
secured creditor with respect to the Pledged Preferred Securities related to
this Income PRIDES certificate, any accrued and unpaid distributions
(including deferred distributions) on such Pledged Preferred Securities will
become payable by the Company to the holder of this Income PRIDES 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.
Each Purchase Contract evidenced hereby and all obligations
and rights of the Company and the Holder thereunder shall terminate if a
Termination Event shall have occurred. Upon the occurrence of a Termination
Event, the Company shall give written notice to the Agent and to the Holders,
at their addresses as they appear in the Income PRIDES Register. Upon and
after the occurrence of a Termination Event, the Collateral Agent shall
release the Pledged Preferred Security (as defined in the Pledge Agreement)
or the appropriate Applicable Ownership Interest of the Treasury Portfolio
forming a part of each Income PRIDES, or the Liquidation Distribution
received in respect of such Pledged Preferred Security, from the Pledge. An
Income PRIDES shall thereafter represent the right to receive the Preferred
Security or the appropriate Applicable Ownership Interest of the Treasury
Portfolio forming a part of such Income PRIDES, or the Liquidation
Distribution received in respect of such Preferred Security, in accordance
with the terms of the Purchase Contract Agreement and the Pledge Agreement.
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 Preferred Securities. Upon receipt of notice of any meeting at
which holders of Preferred Securities are entitled to vote or upon the
solicitation of consents, waivers or proxies of holders of Preferred
Securities, the Agent shall, as soon as practicable thereafter, mail to the
Income PRIDES holders a notice (a) containing such information as is
contained in the notice or solicitation, (b) stating that each Income PRIDES
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 Preferred Securities entitled to vote) shall be entitled to
instruct the Agent as to the exercise of the voting rights pertaining to the
Preferred Securities constituting a part of such holder's Income PRIDES and
(c) stating the manner in which such instructions may be given. Upon the
written request of the Income PRIDES Holders 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 Preferred Securities as to which any particular voting instructions
are received. In the absence of specific instructions from the Holder of an
Income PRIDES, the Agent shall abstain from voting the Preferred Security
evidenced by such Income PRIDES.
Upon the occurrence of an Investment Company Event or
liquidation of the Trust, a principal amount of the Debentures constituting
the assets of the Trust and underlying the Preferred Securities equal to the
aggregate Stated Amount of the Pledged Preferred Securities shall be
delivered to the Collateral Agent in exchange for Pledged Preferred
Securities. Thereafter, the Debentures shall be held by the Collateral Agent
to secure the obligations of each Holder of Income PRIDES to purchase shares
of Common Stock under the Purchase Contracts constituting a part of such
Income PRIDES. Following the liquidation of the Trust, the Holders and the
Collateral Agent shall have such security interests, rights and obligations
with respect to the Debentures as the Holders and the Collateral Agent had
in respect of the Pledged Preferred Securities, and any reference in the
Purchase Contract Agreement or Pledge Agreement to the Preferred Securities
shall be deemed to be a reference to the Debentures.
Upon the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Redemption Price payable on the Tax
Event Redemption Date with respect to the Applicable Principal Amount of
Debentures shall be delivered to the Collateral Agent in exchange for the
Pledged Preferred Securities. Thereafter, pursuant to the terms of the
Pledge Agreement, the Collateral Agent for the benefit of the Company will
apply an amount equal to the Redemption Amount of such Redemption Price to
purchase, the Treasury Portfolio and promptly remit the remaining portion of
such Redemption Price to the Agent for payment to the Holders of such Income
PRIDES.
Following the occurrence of a Tax Event Redemption prior to
the Purchase Contract Settlement Date, the Holders of Income PRIDES and the
Collateral Agent shall have such security interests rights and obligations
with respect to the Treasury Portfolio as the Holder of Income PRIDES and the
Collateral Agent had in respect of the Preferred Security or 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
Preferred Security or the Debenture shall be deemed to be reference to such
Treasury Portfolio.
The Income PRIDES Certificates are issuable only in
registered form and only in denominations of a single Income PRIDES and any
integral multiple thereof. The transfer of any Income PRIDES Certificate
will be registered and Income PRIDES Certificates may be exchanged as
provided in the Purchase Contract Agreement. The Income PRIDES 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.
A holder who elects to substitute a Treasury Security for Preferred
Securities or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, thereby creating Growth PRIDES, 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
an Income PRIDES remains in effect, such Income PRIDES shall not be separable
into its constituent parts, and the rights and obligations of the Holder of
such Income PRIDES in respect of the Preferred Security or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
and Purchase Contract constituting such Income PRIDES may be transferred and
exchanged only as an Income PRIDES. The holder of an Income PRIDES may
substitute for the Pledged Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio securing its obligation under
the related Purchase Contract Treasury Securities in an aggregate principal
amount equal to the aggregate Stated Amount of the Pledged Preferred
Securities or the appropriate Applicable Ownership Interest (as specified in
clause (A) of the definition of such term) in the Treasury Portfolio in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement. From and after such Collateral Substitution, the Security for
which such Pledged Treasury Securities secures the holder's obligation under
the Purchase Contract shall be referred to as a "Growth PRIDES." A Holder
may make such Collateral Substitution only in integral multiples of 100
Income PRIDES for 100 Growth PRIDES; provided, however, that if a Tax Event
Redemption has occurred and the Treasury Portfolio has become a component of
the Income PRIDES, a Holder may make such Collateral Substitutions only in
integral multiples of 160,000 Income PRIDES for 160,000 Growth PRIDES. Such
Collateral Substitution may cause the equivalent aggregate principal amount
of this Certificate to be increased or decreased; provided, however, the
equivalent aggregate principal amount outstanding under this Income PRIDES
Certificate shall not exceed $200,000,000. All such adjustments to the
equivalent aggregate principal amount of this Income PRIDES Certificate shall
be duly recorded by placing an appropriate notation on the Schedule attached
hereto.
A Holder of Growth PRIDES may create or recreate Income
PRIDES by delivering to the Collateral Agent Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, with a
Stated Amount, in the case of such Preferred Securities, or with the
appropriate Applicable Ownership Interest (as specified in clause (A) of the
definition of such term) of the Treasury Portfolio, in the case of such
appropriate Applicable Ownership Interest of the Treasury Portfolio, equal to
the aggregate principal amount of the Pledged Treasury Securities in exchange
for the release of such Pledged Treasury Securities in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement.
Subject to the next succeeding paragraph, the Company shall
pay, on each Payment Date, the Contract Adjustment Payments payable in
respect of each Purchase Contract to the Person in whose name the Income
PRIDES Certificate evidencing such Purchase Contract is registered at the
close of business on the Record Date for such Payment Date. Contract
Adjustment Payments will be payable at the office of the Agent in The City of
New York or, at the option of the Company, by check mailed to the address of
the Person entitled thereto at such address as it appears on the Income
PRIDES Register.
The Company shall have the right, at any time prior to the
Purchase Contract Settlement Date, to defer the payment of any or all of the
Contract Adjustment Payments otherwise payable on any Payment Date, but only
if the Company shall give the Holders and the Agent written notice of its
election to defer such payment (specifying the amount to be deferred) as
provided in the Purchase Contract Agreement. Any Contract Adjustment
Payments so deferred shall bear additional Contract Adjustment Payments
thereon at the rate of ____% per annum (computed on the basis of a 360 day
year of twelve 30 day months), compounding on each succeeding Payment Date,
until paid in full (such deferred installments of Contract Adjustment
Payments, if any, together with the additional Contract Adjustment Payments
accrued thereon, are referred to herein as the "Deferred Contract Adjustment
Payments"). Deferred Contract Adjustment Payments, if any, shall be due on
the next succeeding Payment Date except to the extent that payment is
deferred pursuant to the Purchase Contract Agreement. No Contract Adjustment
Payments may be deferred to a date that is after the Purchase Contract
Settlement Date.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until the Purchase
Contract Settlement Date, the Holder of this Income PRIDES Certificate will
receive on the Purchase Contract Settlement Date, in lieu of a cash payment,
a number of shares of Common Stock equal to (x) the aggregate amount of
Deferred Contract Adjustment Payments payable to the Holder of this Income
PRIDES Certificate divided by (y) the Applicable Market Value.
In the event the Company exercises its option to defer the
payment of Contract Adjustment Payments, then until the Deferred Contract
Adjustment Payments have been paid, the Company shall not declare or pay
dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock or make guarantee payments with respect to the foregoing (other than
(i) purchases or acquisitions of capital stock of the Company in connection
with the satisfaction by the Company of its obligations under any employee or
agent benefit plans or the satisfaction by the Company of its obligations
pursuant to any contract or security outstanding on the date of such event
requiring the Company to purchase capital stock of the Company, (ii) as a
result of a reclassification of the Company's capital stock or the exchange
or conversion of one class or series of the Company's capital stock for
another class or series of the Company's capital stock, (iii) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (iv) dividends or distributions in capital stock of
the Company (or rights to acquire capital stock) or repurchases or
redemptions of capital stock solely from the issuance or exchange of capital
stock or (v) redemptions or repurchases of any rights outstanding under a
shareholder rights plan and a declaration thereunder of a dividend of rights
in the future).
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
of the Holders to receive and the obligation of the Company to pay any
Contract Adjustment Payments or any Deferred Contract Adjustment Payments,
shall immediately and automatically terminate, without the necessity of any
notice or action by any Holder, the Agent or the Company, if, on or prior to
the Purchase Contract Settlement Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, the Company shall
promptly but in no event later than two Business Days thereafter give written
notice to the Agent, the Collateral Agent and to the Holders, at their
addresses as they appear in the Income PRIDES Register. Upon and after the
occurrence of a Termination Event, the Collateral Agent shall release the
Preferred Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, from the Pledge in accordance with
the provisions of the Pledge Agreement.
Subject to and upon compliance with the provisions of the
Purchase Contract Agreement, at the option of the Holder thereof, Purchase
Contracts underlying Securities having an aggregate Stated Amount equal to
$1,000 or an integral multiple thereof may be settled early ("Early
Settlement") as provided in the Purchase Contract Agreement; provided,
however, that if a Tax Event Redemption has occurred and the Treasury
Portfolio has become a component of the Income PRIDES, Holders may early
settle Income PRIDES only in integral multiples of 160,000 Income PRIDES. In
order to exercise the right to effect Early Settlement with respect to any
Purchase Contracts evidenced by this Income PRIDES Certificate, the Holder of
this Income PRIDES Certificate shall deliver this Income PRIDES Certificate
to the Agent at the Corporate Trust Office duly endorsed for transfer to the
Company or in blank with the form of Election to Settle Early set forth below
duly completed and accompanied by payment in the form of immediately
available funds payable to the order of the Company in an amount (the "Early
Settlement Amount") equal to (i) the product of (A) the Stated Amount times
(B) the number of Purchase Contracts with respect to which the Holder has
elected to effect Early Settlement, plus (ii) if such delivery is made with
respect to any Purchase Contracts during the period from the close of
business on any Record Date for any Payment Date to the opening of business
on such Payment Date, an amount equal to the Contract Adjustment Payments
payable on such Payment Date with respect to such Purchase Contracts. Upon
Early Settlement of Purchase Contracts by a Holder of the related Securities,
the Pledged Preferred Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a Income PRIDES as to which Early
Settlement is effected equal to the Early Settlement Rate; provided however,
that upon the Early Settlement of the Purchase Contracts, the Holder thereof
will forfeit the right to receive any Deferred Contract Adjustment Payments,
if any, on such Purchase Contracts. The Early Settlement Rate shall
initially be equal to shares of Common Stock and shall be adjusted in
the same manner and at the same time as the Settlement Rate is adjusted as
provided in the Purchase Contract Agreement.
Upon registration of transfer of this Income PRIDES
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 Income PRIDES 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 Income PRIDES Certificate, by its
acceptance hereof, authorizes the Agent to enter into and perform the related
Purchase Contracts forming part of the Income PRIDES evidenced hereby on his
behalf as his attorney-in-fact, expressly withholds any consent to the
assumption (i.e., affirmance) of the Purchase Contracts by the Company or its
trustee in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase
Contracts, consents to the provisions of the Purchase Contract Agreement,
authorizes the Agent to enter into and perform the Pledge Agreement on his
behalf as its attorney-in-fact, and consents to the Pledge of the Preferred
Securities or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, underlying this Income PRIDES Certificate
pursuant to the Pledge Agreement. The Holder further covenants and agrees,
that, to the extent and in the manner provided in the Purchase Contract
Agreement and the Pledge Agreement, but subject to the terms thereof,
payments in respect to the Stated Amount of the Pledged Preferred Securities,
or the appropriate Applicable Ownership Interest (as specified in clause (A)
of the definition of such term) of the Treasury Portfolio, on the Purchase
Contract Settlement Date shall be paid by the Collateral Agent to the Company
in satisfaction of such Holder's obligations under such Purchase Contract and
such Holder shall acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the
Purchase Contract Agreement may be amended with the consent of the Holders of
a majority of the Purchase Contracts.
The Purchase Contracts shall 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 Income
PRIDES Certificate is registered as the owner of the Income PRIDES evidenced
hereby for the purpose of receiving payments of distributions payable
quarterly on the Preferred Securities, receiving payments of Contract
Adjustment Payments and any Deferred Contract Adjustment Payments,
performance of the Purchase Contracts and for all other purposes whatsoever,
whether or not any payments in respect thereof be overdue and notwithstanding
any notice to the contrary, and neither the Company, the Agent nor any such
agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of
Common Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Agent.
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.
_____________________________________________
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 Income PRIDES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing
____________________________________________________________________________
attorney to transfer said Income PRIDES Certificates on the books of
INGERSOLL-RAND Company 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 Income PRIDES
Certificates in every particular,
without alteration or enlargement
or any change whatsoever.
Signature Guarantee: ___________________________________
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of Income
PRIDES evidenced by this Income PRIDES 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)
If shares are to be registered
in the name of and delivered to REGISTERED HOLDER
a Person other than the Holder,
please (i) print such Person's
name and address and (ii) provide
a guarantee of your signature:
Please print name and address of
Registered Holder:
________________________________ ______________________________
Name Name
________________________________ ______________________________
Address Address
________________________________ ______________________________
________________________________ ______________________________
________________________________ ______________________________
Social Security or other
Taxpayer Identification
Number, if any ______________________________
ELECTION TO SETTLE EARLY
The undersigned Holder of this Income PRIDES 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 Income PRIDES evidenced by
this Income PRIDES Certificate specified below. 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 Income PRIDES Certificate
representing any Income PRIDES 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 Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, 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: ________________________
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock or Income REGISTERED HOLDER
PRIDES Certificates are to be regis-
tered in the name of and delivered to
and Pledged Preferred Securities, or
the Treasury Portfolio, as the case may
be, are to be transferred to a Person
other than the Holder, please print such
Person's name and address:
Please print name and address of
Registered Holder:
________________________________ ______________________________
Name Name
________________________________ ______________________________
Address Address
________________________________ ______________________________
________________________________ ______________________________
________________________________ ______________________________
Social Security or other
Taxpayer Identification
Number, if any _____________________________
Transfer Instructions for Pledged Preferred Securities, or the Treasury
Portfolio, as the case may be, Transferable Upon Early Settlement or a
Termination Event:
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
[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:
Principal
Amount of
Amount of Amount of this Global Signature of
decrease in increase in Certificate authorized
Principal Principal following officer of
Amount of the Amount of such decrease Trustee or
Global the Global or Securities
Date Certificate Certificate increase Custodian
EXHIBIT B
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 Water Street, New York, New York) 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.
No. _________ Number of Growth PRIDES _________ Cusip No.
Form of Face of Growth PRIDES Certificate
This Growth PRIDES Certificate certifies that __________ is the
registered Holder of the number of Growth PRIDES set forth above. Each
Growth PRIDES represents (i) a 1/100 undivided beneficial ownership interest,
of a Treasury Security having a principal amount at maturity equal to $1,000,
subject to the Pledge of such Treasury Security by such Holder pursuant to
the Pledge Agreement, and (ii) the rights and obligations of the Holder under
one Purchase Contract with Ingersoll-Rand Company, a New Jersey 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 Securities
constituting part of each Growth PRIDES evidenced hereby have been pledged to
the Collateral Agent, for the benefit of the Company, to secure the
obligations of the Holder under the Purchase Contract comprising a portion of
such Growth PRIDES.
Each Purchase Contract evidenced hereby obligates the Holder of this
Growth PRIDES Certificate to purchase, and the Company, to sell, on
___________ 16, 2001 (the "Purchase Contract Settlement Date"), at a price
equal to $10 (the "Stated Amount"), a number of shares of Common stock, no
par value per share ("Common Stock"), of the Company equal to the Settlement
Rate, unless on or prior to the Purchase Contract Settlement Date there shall
have occurred a Termination Event or an Early Settlement with respect to the
Growth PRIDES of which such Purchase Contract is a part, all as provided in
the Purchase Contract Agreement and more fully described on the reverse
hereof. The purchase price for the shares of Common Stock purchased pursuant
to each Purchase Contract evidenced hereby will be paid by application of the
Proceeds from the Treasury Securities pledged to secure the obligations under
such Purchase Contract in accordance with the terms of the Pledge Agreement.
The Company shall pay on each Payment Date in respect of each
Purchase Contract evidenced hereby an amount (the "Contract Adjustment
Payments") equal to __% per annum of the Stated Amount, computed on the basis
of the actual number of days elapsed in a year of 360 day year of twelve 30
day months, as the case may be, subject to deferral at the option of the
Company as provided in the Purchase Contract Agreement and more fully
described on the reverse hereof. Such Contract Adjustment Payments shall be
payable to the Person in whose name this Growth PRIDES Certificate (or a
Predecessor Growth PRIDES Certificate) is registered at the close of business
on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the
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 Growth PRIDES Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Growth PRIDES Certificate shall not be
entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed.
INGERSOLL-RAND COMPANY
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts)
By: THE FIRST NATIONAL BANK OF
CHICAGO, not individually but
solely as Attorney-in-Fact of
such Holder
By:________________________________
Name:
Title:
Dated:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Growth PRIDES referred to in the within-
mentioned Purchase Contract Agreement.
By: THE FIRST NATIONAL BANK OF
CHICAGO, as Purchase Contract
Agent
By: ________________________________
Authorized Officer
(Reverse of
Growth PRIDES Certificate)
Each Purchase Contract evidenced hereby is governed by a
Purchase Contract Agreement, dated as of _______ ___, 1998 (as may be
supplemented from time to time, the "Purchase Contract Agreement") between
the Company and The First National Bank of Chicago, 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 Growth
PRIDES Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder
of this Growth PRIDES Certificate to purchase, and the Company to sell, on
the Purchase Contract Settlement Date at a price equal to the Stated Amount
(the "Purchase Price") a number of shares of Common Stock of the Company
equal to the Settlement Rate, unless on or prior to the Purchase Contract
Settlement Date, there shall have occurred a Termination Event or an Early
Settlement with respect to the Security of which such Purchase Contract is a
part. The "Settlement Rate" is equal to (a) if the Applicable Market Value
(as defined below) is equal to or greater than $ (the "Threshold
Appreciation Price"), shares of Common Stock per Purchase Contract,
(b) if the Applicable Market Value is less than the Threshold Appreciation
Price but is greater than $ , 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 Amount is less than or equal to $
, then 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 Prices per share of Common Stock on each of the twenty consecutive
Trading Days ending on the third Trading Day immediately preceding the
Purchase Contract Settlement Date. The "Closing Price" of the Common Stock
on any date of determination means the closing sale price (or, if no closing
price is reported, the last reported sale price) of the Common Stock on the
New York Stock Exchange (the "NYSE") on such date or, if the Common Stock is
not listed for trading on the NYSE on any such date, as reported in the
composite transactions for the principal United States securities exchange on
which the Common Stock is so listed, or if the Common Stock is not so listed
on a United States national or regional securities exchange, as reported by
The Nasdaq Stock Market, or, if the Common Stock is not so reported, the last
quoted bid price for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization, or, if
such bid price is not available, the market value of the Common Stock on such
date as determined by a nationally recognized independent investment banking
firm retained for this purpose by the Company. A "Trading Day" means a day
on which the Common Stock (A) is not suspended from trading on any national
or regional securities exchange or association or over-the-counter market at
the close of business and (B) has traded at least once on the national or
regional securities exchange or association or over-the-counter market that
is the primary market for the trading of the Common Stock.
In accordance with the terms of the Purchase Contract
Agreement, the Holder of this Growth PRIDES Certificate shall pay the
Purchase Price for the shares of Common Stock purchased pursuant to each
Purchase Contract evidenced hereby by effecting either an Early Settlement of
each such Purchase Contract or by applying a principal amount of the Pledged
Treasury Securities underlying such Holder's Growth PRIDES equal to the
Stated Amount of such Purchase Contract to the purchase of the Common Stock.
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.
Each Purchase Contract evidenced hereby and all obligations
and rights of the Company and the Holder thereunder shall terminate if a
Termination Event shall have occurred. Upon the occurrence of a Termination
Event, the Company shall give written notice to the Agent and to the Holders,
at their addresses as they appear in the Growth PRIDES Register. Upon and
after the occurrence of a Termination Event, the Collateral Agent shall
release the Pledged Treasury Securities (as defined in the Pledge Agreement)
forming a part of each Growth PRIDES.
The Growth PRIDES Certificates are issuable only in
registered form and only in denominations of a single Growth PRIDES and any
integral multiple thereof. The transfer of any Growth PRIDES Certificate
will be registered and Growth PRIDES Certificates may be exchanged as
provided in the Purchase Contract Agreement. The Growth PRIDES 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.
A Holder who elects to substitute Preferred Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case may be,
for Treasury Securities, thereby recreating Income PRIDES, shall be
responsible for any fees or expenses associated therewith. Except as
provided in the Purchase Contract Agreement, for so long as the Purchase
Contract underlying a Growth PRIDES remains in effect, such Growth PRIDES
shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Growth PRIDES in respect of the Treasury
Security and the Purchase Contract constituting such Growth PRIDES may be
transferred and exchanged only as a Growth PRIDES. A Holder of Growth PRIDES
may create or recreate Income PRIDES by delivering to the Collateral Agent
Preferred Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, with a Stated Amount, in the case of such Preferred
Securities, or with the appropriate Applicable Ownership Interest (as
specified in clause (A) of the definition of such term) of the Treasury
Portfolio, in the case of such appropriate Applicable Ownership Interest of
the Treasury Portfolio, equal to the aggregate principal amount of the
Pledged Treasury Securities in exchange for the release of such Pledged
Treasury Securities in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement. From and after such substitution, the
Holder's Security shall be referred to as an "Income PRIDES." Such
substitution may cause the equivalent aggregate principal amount of this
Certificate to be increased or decreased; provided, however, the equivalent
aggregate principal amount outstanding under this Growth PRIDES Certificate
shall not exceed $200,000,000. All such adjustments to the equivalent
aggregate principal amount of this Growth PRIDES Certificate shall be duly
recorded by placing an appropriate notation on the Schedule attached hereto.
A Holder of an Income PRIDES may create or recreate a Growth
PRIDES by delivering to the Collateral Agent Treasury Securities in an
aggregate principal amount equal to the aggregate Stated Amount of the
Pledged Preferred Securities or the appropriate Applicable Ownership Interest
(as specified in clause (A) of the definition of such term) of the Treasury
Portfolio, as the case may be, in exchange for the release of such Pledged
Preferred Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement. Any such recreation of
a Growth PRIDES may be effected only in multiples of 100 Income PRIDES for
100 Growth PRIDES; provided, however, if a Tax Event Redemption has occurred
and the Treasury Portfolio has become a component of the Income PRIDES, a
Holder may make such Collateral Substitution in integral multiples of 160,000
Income PRIDES for 160,000 Growth PRIDES.
Subject to the next succeeding paragraph, the Company shall
pay, on each Payment Date, the Contract Adjustment Payments payable in
respect of each Purchase Contract to the Person in whose name the Growth
PRIDES Certificate evidencing such Purchase Contract is registered at the
close of business on the Record Date for such Payment Date. Contract
Adjustment Payments will be payable at the office of the Agent in The City of
New York or, at the option of the Company, by check mailed to the address of
the Person entitled thereto at such address as it appears on the Growth
PRIDES Register.
The Company shall have the right, at any time prior to the
Purchase Contract Settlement Date, to defer the payment of any or all of the
Contract Adjustment Payments otherwise payable on any Payment Date, but only
if the Company shall give the Holders and the Agent written notice of its
election to defer such payment (specifying the amount to be deferred) as
provided in the Purchase Contract Agreement. Any Contract Adjustment
Payments so deferred shall bear additional Contract Adjustment Payments
thereon at the rate of ____% per annum (computed on the basis of a 360 day
year of twelve 30 day months), compounding on each succeeding Payment Date,
until paid in full (such deferred installments of Contract Adjustment
Payments together with the additional Contract Adjustment Payments accrued
thereon, are referred to herein as the "Deferred Contract Adjustment
Payments"). Deferred Contract Adjustment Payments, if any, shall be due on
the next succeeding Payment Date except to the extent that payment is
deferred pursuant to the Purchase Contract Agreement. No Contract Adjustment
Payments may be deferred to a date that is after the Purchase Contract
Settlement Date.
In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until the Purchase
Contract Settlement Date, the Holder of this Growth PRIDES Certificate will
receive on the Purchase Contract Settlement Date, in lieu of a cash payment,
a number of Shares of Common Stock equal to (x) the aggregate amount of
Deferred Contract Adjustment Payments payable to the Holder of the Growth
PRIDES Certificate divided by (y) the Applicable Market Value.
In the event the Company exercises its option to defer the
payment of Contract Adjustment Payments, then, until the Deferred Contract
Adjustment Payments have been paid, the Company shall not declare or pay
dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock or make guarantee payments with respect to the foregoing (other than
(i) purchases or acquisitions of shares of capital stock of the Company in
connection with the satisfaction by the Company of its obligations under any
employee or agent benefit plans or the satisfaction by the Company of its
obligations pursuant to any contract or security outstanding on the date of
such event requiring the Company to purchase capital stock of the Company,
(ii) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock, (iii) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of the Company's capital
stock or the security being converted or exchanged, (iv) dividends or
distributions in capital stock of the Company (or rights to acquire capital
stock) or repurchases or redemptions of capital stock solely from the
issuance or exchange of capital stock or (v) redemptions or repurchases of
any rights outstanding under a shareholder rights plan and the declaration
thereunder of a dividend of right in the future).
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
of the Holders to receive and the obligation of the Company to pay Contract
Adjustment Payments or any Deferred Contract Adjustment Payments, shall
immediately and automatically terminate, without the necessity of any notice
or action by any Holder, the Agent or the Company, if, on or prior to the
Purchase Contract Settlement Date, a Termination Event shall have occurred.
Upon the occurrence of a Termination Event, the Company shall promptly but in
no event later than two business days thereafter give written notice to the
Agent, the Collateral Agent and to the Holders, at their addresses as they
appear in the Growth PRIDES Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Treasury Securities
from the Pledge in accordance with the provisions of the Pledge Agreement.
Subject to and upon compliance with the provisions of the
Purchase Contract Agreement, at the option of the Holder thereof, Purchase
Contracts underlying Securities having an aggregate Stated Amount equal to
$1,000 or an integral multiple thereof may be settled early ("Early
Settlement") as provided in the Purchase Contract Agreement. In order to
exercise the right to effect Early Settlement with respect to any Purchase
Contracts evidenced by this Growth PRIDES Certificate, the Holder of this
Growth PRIDES Certificate shall deliver this Growth PRIDES Certificate to the
Agent at the Corporate Trust Office duly endorsed for transfer to the Company
or in blank with the form of Election to Settle Early set forth below duly
completed and accompanied by payment in the form of immediately available
funds payable to the order of the Company in an amount (the "Early Settlement
Amount") equal to (i) the product of (A) the Stated Amount times (B) the
number of Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement, plus (ii) if such delivery is made with respect to
any Purchase Contracts during the period from the close of business on any
Record Date for any Payment Date to the opening of business on such Payment
Date, an amount equal to the Contract Adjustment Payments payable, if any, on
such Payment Date with respect to such Purchase Contracts. Upon Early
Settlement of Purchase Contracts by a Holder of the related Securities, the
Pledged Treasury Securities underlying such Securities shall be released from
the Pledge as provided in the Pledge Agreement and the Holder shall be
entitled to receive, a number of shares of Common Stock on account of each
Purchase Contract forming part of a Growth PRIDES as to which Early
Settlement is effected equal to shares of Common Stock per Purchase
Contract (the "Early Settlement Rate"); provided however, that upon the Early
Settlement of the Purchase Contracts, the Holder thereof will forfeit the
right to receive any Deferred Contract Adjustment Payments on such Purchase
Contracts. The Early Settlement Rate shall be adjusted in the same manner
and at the same time as the Settlement Rate is adjusted as provided in the
Purchase Contract Agreement.
Upon registration of transfer of this Growth PRIDES
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 Growth PRIDES 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 Growth PRIDES Certificate, by his
acceptance hereof, authorizes the Agent to enter into and perform the related
Purchase Contracts forming part of the Growth PRIDES 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 its obligations under such Purchase
Contracts, consents to the provisions of the Purchase Contract Agreement,
authorizes the Agent to enter into and perform the Pledge Agreement on his
behalf as his attorney-in-fact, and consents to the Pledge of the Treasury
Securities underlying this Growth PRIDES Certificate pursuant to the Pledge
Agreement. The Holder further covenants and agrees, that, to the extent and
in the manner provided in the Purchase Contract Agreement and the Pledge
Agreement, but subject to the terms thereof, payments in respect to the
Stated Amount of the Pledged Treasury Securities on the Purchase Contract
Settlement Date shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Purchase Contract and
such Holder shall acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the
Purchase Contract Agreement may be amended with the consent of the Holders of
a majority of the Purchase Contracts.
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 Growth
PRIDES Certificate is registered as the owner of the Growth PRIDES evidenced
hereby for the purpose of receiving payments of interest on the Treasury
Securities, receiving payments of Contract Adjustment Payments and any
Deferred Contract Adjustment Payments, performance of the Purchase Contracts
and for all other purposes whatsoever, whether or not any payments in respect
thereof be overdue and notwithstanding any notice to the contrary, and
neither the Company, the Agent nor any such agent shall be affected by notice
to the contrary.
The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of
Common Stock.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Agent.
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.
_____________________________________________
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 Growth PRIDES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing
___________________________________________________________________________
attorney to transfer said Growth PRIDES Certificates on the books of
INGERSOLL-RAND Company 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 Growth PRIDES Certificates in
every particular, without alteration or
enlargement or any change whatsoever.
Signature Guarantee: __________________________________
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of Growth
PRIDES evidenced by this Growth PRIDES 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 shares are to be registered
in the name of and delivered to REGISTERED HOLDER
a Person other than the Holder,
please print such Person's name
and address:
Please print name and address of
Registered Holder:
______________________________ _______________________________
Name Name
______________________________ _______________________________
Address Address
______________________________ _______________________________
______________________________ _______________________________
______________________________ _______________________________
Social Security or other
Taxpayer Identification
Number, if any _______________________________
ELECTION TO SETTLE EARLY
The undersigned Holder of this Growth PRIDES 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 Growth PRIDES evidenced by
this Growth PRIDES Certificate specified below. The option to effect Early
Settlement may be exercised only with respect to Purchase Contracts
underlying Growth PRIDES 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 Growth PRIDES Certificate representing any
Growth PRIDES 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: ____________________________________
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock of Growth REGISTERED HOLDER
PRIDES Certificates are to be regis-
tered in the name of and delivered to
and Pledged Treasury Securities are to
be transferred to a Person other than
the Holder, please print such Person's
name and address:
Please print name and
address of Registered
Holder:
______________________________ _______________________________
Name Name
______________________________ _______________________________
Address Address
______________________________ _______________________________
______________________________ _______________________________
______________________________ _______________________________
Social Security or other
Taxpayer Identification
Number, if any _______________________________
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement or a Termination Event:
___________________________________
___________________________________
___________________________________
[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:
Principal
Amount of
Amount of Amount of this Global Signature of
decrease in increase in Certificate authorized
Principal Principal following officer of
Amount of the Amount of the such decrease Trustee or
Global Global or Securities
Date Certificate Certificate increase Custodian
EXHIBIT C
INSTRUCTION FROM PURCHASE CONTRACT AGENT TO
COLLATERAL AGENT
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10010-2697
Attention: Corporate Trust Administration Department
Re: FELINE PRIDES of Ingersoll-Rand Company (the
"Company"), and Ingersoll-Rand Financing I
We hereby notify you in accordance with Section 4.1 of the
Pledge Agreement, dated as of _______ ___, 1998, among the Company,
yourselves, as Collateral Agent, and ourselves, as Purchase Contract Agent
and as attorney-in-fact for the holders of [Income PRIDES] [Growth PRIDES]
from time to time, that the holder of securities listed below (the "Holder")
has elected to substitute [$_____ aggregate [principal amount] of Treasury
Securities] [$_______ Stated Amount of Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be,] in exchange for the [Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be,] [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] [Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be,] to you, as Collateral Agent. We hereby instruct you, upon
receipt of such [Pledged Treasury Securities] [Pledged Preferred Securities
or the appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be], and upon the payment by such Holder of any applicable
fees, to release the [Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be,] [Treasury
Securities] related to such [Income PRIDES] [Growth PRIDES] to us in
accordance with the Holder's instructions.
Date:______________________ ___________________________________
By:________________________________
Name:
Title:
Signature Guarantee: ______________
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Preferred Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be,] for the
[Pledged Preferred Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be,] [Pledged Treasury
Securities]:
_________________________________ __________________________________
Name Social Security or other Taxpayer
Identification Number, if any
________________________________
Address
________________________________
________________________________
EXHIBIT D
INSTRUCTION TO PURCHASE CONTRACT AGENT
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
Re: FELINE PRIDES of Ingersoll-Rand Company (the
"Company"), and Ingersoll-Rand Financing I
The undersigned Holder hereby notifies you that it has
delivered to The Chase Manhattan Bank, as Collateral Agent, $_______
aggregate principal amount of [Treasury Securities] [Preferred Securities or
the appropriate Applicable Ownership Interest of the Treasury Portfolio, as
the case may be,] in exchange for the [Pledged Preferred Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio, as the
case may be,] [Pledged Treasury Securities] held by the Collateral Agent, in
accordance with Section 4.1 of the Pledge Agreement, dated _______ ___,
1998, between 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 Preferred Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be,] [Pledged Treasury
Securities] related to such [Income PRIDES] [Growth PRIDES].
Dated:_________________________ _________________________________
Signature
Signature Guarantee: _______________
Please print name and address of Registered Holder:
______________________________ ______________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
______________________________
______________________________
______________________________
EXHIBIT E
NOTICE TO SETTLE BY SEPARATE CASH
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
Re: FELINE PRIDES of Ingersoll-Rand Company (the
"Company"), and Ingersoll-Rand Financing I
The undersigned Holder hereby irrevocably notifies you in
accordance with Section 5.4 of the Purchase Contract Agreement, dated as of
______ ___, 1998 among the Company, yourselves, as Purchase Contract Agent
and as Attorney-in-Fact for the Holders of the Purchase Contracts, that such
Holder has elected to pay to the Collateral Agent, on or prior to 11:00 a.m.
New York City time, on the Business Day immediately preceding the Purchase
Contract Settlement Date, (in lawful money of the United States by [certified
or cashiers check or] wire transfer, in each case in immediately available
funds), $_________ as the Purchase Price for the shares of Common Stock
issuable to such Holder by the Company under the related Purchase Contract on
the Purchase Contract Settlement Date. The undersigned Holder hereby
instructs you to notify promptly the Collateral Agent of the undersigned
Holders election to make such cash settlement with respect to the Purchase
Contracts related to such Holder's [Income PRIDES] [Growth PRIDES].
Dated:_________________________ _________________________________
Signature
Signature Guarantee: _______________
Please print name and address of Registered Holder:
______________________________ ______________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
______________________________
______________________________
______________________________