EXHIBIT 4-9
ARVIN INDUSTRIES, INC.
AND
_________________________
AS PURCHASE CONTRACT AGENT
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FORM OF PURCHASE CONTRACT AGREEMENT
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DATED AS OF
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TABLE OF CONTENTS
Page
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RECITALS
ARTICLE I Definitions and Other Provisions of General Applications. 1
Section 1.1. Definitions. . . . . . . . . . . . .. . . . . . 1
Section 1.2. Compliance Certificates and Opinions. . . . . . 6
Section 1.3. Form of Documents Delivered to Agent. . . . . . 6
Section 1.4. Acts of Holders; Record Dates . . . . . . . . . 6
Section 1.5. Notices . . . . . . . . . . . . . . . . . . . . 7
Section 1.6. Notice to Holders; Waiver . . . . . . . . . . . 7
Section 1.7. Effect of Headings and Table of Contents . . . 8
Section 1.8. Successors and Assigns . . . . . . . . . . . . 8
Section 1.9. Separability Clause . . . . . . . . . . . . . . 8
Section 1.10. Benefits of Agreement . . . . . . . . . . . . . 8
Section 1.11. Governing Law . . . . . . . . . . . . . . . . . 8
Section 1.12. Legal Holidays . . . . . . . . . . . . . . . . 8
Section 1.13. Counterparts . . . . . . . . . . . . . . . . . 8
Section 1.14. Inspection of Agreement . . . . . . . . . . . . 8
ARTICLE II Certificate Forms . . . . . . . . . . . . . . . . . . . 9
Section 2.1. Forms of Certificates Generally . . . . . . . . 9
Section 2.2. Form of Agent's Certificate of Authentication . 9
ARTICLE III The Securities . . . . . . . . . . . . . . . . . . . . 9
Section 3.1. Title and Terms; Denominations . . . . . . . . 9
Section 3.2. Rights and Obligations Evidenced by the
Certificates . . . . . . . . . . . . . . . . . 9
Section 3.3. Execution, Authentication, Delivery and Dating 10
Section 3.4. Temporary Certificates . . . . . . . . . . . . 10
Section 3.5. Registration; Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . 11
Section 3.6. Book-Entry Interests . . . . . . . . . . . . . 11
Section 3.7. Notices to Holders . . . . . . . . . . . . . . 12
Section 3.8. Appointment of Successor Clearing Agency . . . 12
Section 3.9. Definitive Certificates . . . . . . . . . . . . 12
Section 3.10. Mutilated, Destroyed, Lost and Stolen
Certificates . . . . . . . . . . . . . . . . . 12
Section 3.11. Persons Deemed Owners . . . . . . . . . . . . . 13
Section 3.12. Cancellation . . . . . . . . . . . . . . . . . 13
Section 3.13. Establishment or Reestablishment of Type B
Securities . . . . . . . . . . . . . . . . . . 13
Section 3.14. Establishment or Reestablishment of Type A
Securities . . . . . . . . . . . . . . . . . . 14
Section 3.15. Transfer of Collateral upon Occurrence of
Termination Event . . . . . . . . . . . . . . . 15
Section 3.16. No Consent to Assumption . . . . . . . . . . . 15
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ARTICLE IV The Debt Securities . . . . . . . . . . . . . . . . . . 16
Section 4.1. Payment of Interest; Rights to Interest Preserved
Interest Rate Reset Notice . . . . . . . . . . 16
Section 4.2. Notice and Voting . . . . . . . . . . . . . . . 16
Section 4.3. Tax Event Redemption . . . . . . . . . . . . . 17
ARTICLE V The Purchase Contracts . . . . . . . . . . . . . . . . . 17
Section 5.1. Purchase of Common Shares . . . . . . . . . . . 17
Section 5.2. Contract Adjustment Payments . . . . . . . . . 18
Section 5.3. Deferral of Payment Dates For Contract Adjustment
Payments . . . . . . . . . . . . . . . . . . . 18
Section 5.4. Payment of Purchase Price . . . . . . . . . . . 19
Section 5.5. Issuance of Common Shares . . . . . . . . . . . 21
Section 5.6. Adjustment of Settlement Rate . . . . . . . . . 21
Section 5.7. Notice of Adjustments and Certain Other Events 24
Section 5.8. Termination Event; Notice . . . . . . . . . . . 25
Section 5.9. Early Settlement . . . . . . . . . . . . . . . 25
Section 5.10. No Fractional Shares . . . . . . . . . . . . . 26
Section 5.11. Charges and Taxes . . . . . . . . . . . . . . . 26
ARTICLE VI Remedies . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.1. Unconditional Right of Holders to Receive Contract
Adjustment Payments and to Purchase Common Shares
26
Section 6.2. Restoration of Rights and Remedies . . . . . . 26
Section 6.3. Rights and Remedies Cumulative . . . . . . . . 27
Section 6.4. Delay or Omission Not Waiver . . . . . . . . . 27
Section 6.5. Undertaking for Costs . . . . . . . . . . . . . 27
Section 6.6. Waiver of Stay or Extension Laws . . . . . . . 27
ARTICLE VII THE AGENT . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.1. Certain Duties and Responsibilities . . . . . . 27
Section 7.2. Notice of Default . . . . . . . . . . . . . . . 28
Section 7.3. Certain Rights of Agent . . . . . . . . . . . . 28
Section 7.4. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . 28
Section 7.5. May Hold Securities . . . . . . . . . . . . . . 28
Section 7.6. Money Held in Custody . . . . . . . . . . . . . 29
Section 7.7. Compensation and Reimbursement . . . . . . . . 29
Section 7.8. Corporate Agent Required; Eligibility . . . . . 29
Section 7.9. Resignation and Removal; Appointment of Successor
29
Section 7.10. Acceptance of Appointment by Successor . . . . 30
Section 7.11. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . 30
Section 7.12. Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . . . 30
Section 7.13. No Obligations of Agent . . . . . . . . . . . . 30
Section 7.14. Tax Compliance . . . . . . . . . . . . . . . . 31
ARTICLE VIII Supplemental Agreements . . . . . . . . . . . . . . . 31
Section 8.1. Supplemental Agreements Without Consent of
Holders . . . . . . . . . . . . . . . . . . . . 31
Section 8.2. Supplemental Agreements with Consent of Holders 31
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Section 8.3. Execution of Supplemental Agreements . . . . . 32
Section 8.4. Effect of Supplemental Agreements . . . . . . . 32
Section 8.5. Reference to Supplemental Agreements . . . . . 32
ARTICLE IX Consolidation, Merger, Sale or Conveyance . . . . . . . 32
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions . . . 32
Section 9.2. Rights and Duties of Successor Corporation . . 32
Section 9.3. Opinion of Counsel Given to Agent . . . . . . . 33
ARTICLE X Covenants . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 10.1. Performance Under Purchase Contracts . . . . . 33
Section 10.2. Maintenance of Office or Agency . . . . . . . . 33
Section 10.3. Company to Reserve Common Shares . . . . . . . 33
Section 10.4. Covenants as to Common Shares . . . . . . . . . 33
EXHIBIT A Form of Type A Certificate
EXHIBIT B Form of Type B Certificate
EXHIBIT C Instruction to Collateral Agent
EXHIBIT D Instruction to Purchase Contract Agent
EXHIBIT E Notice to Settle with Separate Cash
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FORM OF PURCHASE CONTRACT AGREEMENT, dated as of ______, ____,
between Arvin Industries, Inc., an Indiana corporation (the
"Company"), and _______________________________, 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.
WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE 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
Officer's Certificate: (i) Applicable Ownership Interest; (ii)
Applicable Principal Amount; (iii) Purchase Contract Settlement Date;
(iv) Redemption Amount; (v) Redemption Price; (vi) Reset Announcement
Date; (vii) Reset Rate; (viii) Reset Spread; (ix) Tax Event; (x) Tax
Event Redemption; (xi) Tax Event Redemption Date; (xii) Two-Year
Benchmark Treasury; and (xiii) Treasury Portfolio; 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.
"Authorized Officer" means the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant Treasurer,
or any other officer or agent of the Company duly authorized by the
Board of Directors to act in respect of matters relating to this
Agreement.
"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
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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 ____________________
(in the State of ___________________) 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 a Type A Certificate or a Type B
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 ___________________________, 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 Shares" means the Common Shares, $2.50 par value, of
the Company.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor shall have become
such pursuant to the applicable provision of this Agreement, and
thereafter "Company" shall mean such successor.
"Company Certificate" means a certificate signed by an
Authorized Officer and delivered to the Agent.
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"Contract Adjustment Payments" means the fee payable by the
Company in respect of each Purchase Contract issued in connection with
Type B Securities, equal to % per annum of the Stated ___________
Amount, 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 _______________________________.
"Coupon Rate" means the percentage rate per annum at which
each Debt Security will bear interest initially.
"Current Market Price" has the meaning specified in Section
5.6(a)(8).
"Debt Securities" means the series of debt securities of the
Company designated the _________% Senior Notes due _________, to be
issued under the Indenture as of the date hereof.
"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).
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"Failed Remarketing" has the meaning specified in Section
5.4(b).
"Global Debt Security Certificate" means a certificate
evidencing the rights and obligations of a Holder in respect of the
number of Debt Securities specified on such certificate and which is
registered in the name of a Clearing Agency or a nominee thereof.
"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.
"Holder," when used with respect to a Security, means the
Person in whose name the Security evidenced by an Type A Certificate
and/or a Type B Certificate is registered in the related Type A
Register and/or the Type B Register, as the case may be.
"Indenture" means _______________________________.
"Indenture Trustee" means___________________, as trustee
under the Indenture, or any successor thereto.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Company by an Authorized Officer and
delivered to the Agent.
"NYSE" has the meaning specified in Section 5.1.
"Officer's Certificate" means a certificate signed by an
authorized signatory of the Company establishing the terms of the debt
securities of any series pursuant to the Indenture.
"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 Type A
Securities and Type B Securities means, as of the date of
determination, all Type A Securities or Type B Securities evidenced by
Certificates theretofore authenticated, executed and delivered under
this Agreement, except:
(i) If a Termination Event has occurred, (A) Type B
Securities and (B) Type A Securities for which the Stated Amount of
the related Debt Security or the appropriate Applicable Ownership
Interest of the Treasury Portfolio has been theretofore deposited with
the Agent in trust for the Holders of such Type A Securities;
(ii) Type A Securities and Type B Securities 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
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(iii) Type A Securities and Type B Securities 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 Type A Securities or Type B Securities
evidenced by such Certificate are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite number of the Type A Securities or Type B Securities have
given any request, demand, authorization, direction, notice, consent
or waiver hereunder, Type A Securities or Type B Securities owned by
the Company or any Affiliate of the Company shall be disregarded and
deemed not to be outstanding, except that, in determining whether the
Agent shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Type A
Securities or Type B Securities which a Responsible Officer of the
Agent knows to be so owned shall be so disregarded. Type A Securities
or Type B Securities 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 Type A Securities or Type B Securities and that the
pledgee is not the Company or any Affiliate of the Company.
"Payment Date" means each _________________________,
commencing ________________, ____.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
association or government or any agency or political subdivision
thereof or any other entity of whatever nature.
"Permitted Investments" has the meaning set forth in Section
1 of the Pledge Agreement.
"Pledge" means the pledge under the Pledge Agreement of the
Debt 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, the
Custodial Agent, the Securities Intermediary and the Agent, on its
own behalf and as attorney-in-fact for the Holders from time to time
of the Securities.
"Predecessor Certificate" means a Predecessor Type A
Certificate or a Predecessor Type B Certificate.
"Predecessor Type A Certificate" of any particular Type A
Certificate means every previous Type A Certificate evidencing all or
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a portion of the rights and obligations of the Company and the Holder
under the Type A Security evidenced thereby; and, for the purposes of
this definition, any Type A Certificate authenticated and delivered
under Section 3.10 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Type A Certificate shall be deemed to
evidence the same rights and obligations of the Company and the Holder
as the mutilated, destroyed, lost or stolen Type A Certificate.
"Predecessor Type B Certificate" of any particular Type B
Certificate means every previous Type B Certificate evidencing all or
a portion of the rights and obligations of the Company and the Holder
under the Type B Securities evidenced thereby; and, for the purposes
of this definition, any Type B Certificate authenticated and delivered
under Section 3.10 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Type B Certificate shall be deemed to
evidence the same rights and obligations of the Company and the Holder
as the mutilated, destroyed, lost or stolen Type B Certificate.
"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
Shares 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 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 Type A Register and the Type B
Register.
"Registrar" means the Type A Registrar and the Type B
Registrar.
"Remarketing Agent" has the meaning specified in Section
5.4.
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"Remarketing Agreement" means the Remarketing Agreement
dated _____________, ____ 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 Underwriting 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 a Type A Security or a Type B Security.
"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 $___________.
"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)
at any time on or prior to the Purchase Contract Settlement Date, a
judgment, decree or court order for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of the
Company or of its property, or for the 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
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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
__________________.
"Type A Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Type A
Securities specified on such certificate.
"Type A Register" and "Type A Registrar" have the respective
meanings specified in Section 3.5.
"Type A Security" means the collective rights and
obligations of a Holder of a Type A Certificate in respect of a Debt
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.
"Type B Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Type B
Security specified on such certificate.
"Type B Register" and "Type B Registrar" have the respective
meanings specified in Section 3.5.
"Type B Security" means, following the substitution of one
or more Treasury Securities for Debt 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 Type B
Certificate in respect of such Treasury Securities, subject in each
case to the Pledge thereof, and the related Purchase Contract.
"Underwriting Agreement" means the Underwriting Agreement
dated ______________, ____ among the Company,
______________________________ and _______________________________.
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"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 a Company 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
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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 Type A
Register or the Type B 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.
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(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 Type A Securities and the Outstanding Type B Securities,
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 Type A
Securities or the Type B Securities 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
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Agent at __________________, Attention: _________________, 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 Arvin Industries, Inc., One Noblitt Plaza, Box 3000,
Columbus, Indiana 47202, Attention: 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 _______________________,
or at any other address previously furnished in writing by the Collateral
Agent to the Agent, the Company and the Holders; or
(4) 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 ___________________________, Attention: -------------------
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
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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 _____________.
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
Type A Certificates or the Type B 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.
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In any case where any Purchase Contract Settlement Date shall not
be a Business Day, then (notwithstanding any other provision of th^G50
is Agreement, the Type A Certificates or the Type B 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 Type A Certificates (including the form of Purchase Contract
forming part of the Type A Securities evidenced thereby) shall be in
substantially the form set forth in Exhibit A hereto, with such
letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon
as may be required by the rules of any securities exchange on which
the Type A Securities are listed or any depositary therefor, or as
may, consistently herewith, be determined by the officers of the
Company executing such Type A Certificates, as evidenced by their
execution of the Type A Certificates.
The definitive Type A 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
Type A Securities evidenced by such Type A Certificates, consistent
with the provisions of this Agreement, as evidenced by their execution
thereof.
The Type B Certificates (including the form of Purchase Contracts
forming part of the Type B Securities 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 Type B Securities may be listed or any depositary therefor, or as
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may, consistently herewith, be determined by the officers of the
Company executing such Type B Certificates, as evidenced by their
execution of the Type B Certificates.
The definitive Type B 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
Type B Securities evidenced by such Type B 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 Type
A Securities shall be in substantially the form set forth on the form
of the Type A Certificates.
The form of the Agent's certificate of authentication of the Type
B Securities shall be in substantially the form set forth on the form
of the Type B Certificates.
ARTICLE III
The Securities
Section 3.1. Title and Terms; Denominations.
The aggregate number of Type A Securities and Type B Securities
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 Type A Security or Type B Security
and any integral multiple thereof.
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Section 3.2. Rights and Obligations Evidenced by the Certificates.
Each Type A Certificate shall evidence the number of Type A
Securities specified therein, with each such Type A Security
representing the ownership by the Holder thereof of a beneficial
interest in a Debt Security or the Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, subject to the Pledge of
such Debt 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 Type A
Security shall pledge, pursuant to the Pledge Agreement, the Debt
Security or the Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, forming a part of such Type A Security,
to the Collateral Agent and grant to the Collateral Agent a security
interest in the right, title, and interest of such Holder in such Debt
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 Shares of the Company.
Each Type B Certificate shall evidence the number of Type B
Securities specified therein, with each such Type B Security
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.
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 President or one of its Vice Presidents
and its Treasurer or one of its Assistant Treasurers, or its Secretary
or one of its Assistant Secretaries. 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
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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 Type A Securities or
Type B Securities 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 Type A Securities or
Type B Securities, 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 Type A Securities or Type B
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Securities, 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 "Type A Register") in which, subject to such reasonable
regulations as it may prescribe, the Agent shall provide for the
registration of Type A Certificates and of transfers of Type A
Certificates (the Agent, in such capacity, the "Type A Registrar") and
a Register (the "Type B Register") in which, subject to such
reasonable regulations as it may prescribe, the Agent shall provide
for the registration of the Type B Certificates and transfers of Type
B Certificates (the Agent, in such capacity, the "Type B 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 Type A Securities or Type B Securities, 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 Type A Securities or Type B Securities, 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 Type A Securities or Type B Securities, as the case may be,
and be entitled to the same benefits and subject to the same
obligations, under this Agreement as the Type A Securities or Type B
Securities, 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
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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 Common Shares issuable in respect of the
Purchase Contracts forming a part of the Securities evidenced by such
Certificate, (ii) in the case of Type A Securities, if a Termination
Event shall have occurred prior to the Purchase Contract Settlement
Date, transfer the aggregate Stated Amount of the Debt Securities or
the Treasury Portfolio, as applicable, evidenced thereby, or (iii) in
the case of Type B Securities, 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
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(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 Type A Securities or Type B Securities, as the case may
be, and bearing a Certificate number not contemporaneously
outstanding.
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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 Type A
Securities or Type B Securities, 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 Common
Shares 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 Debt 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.
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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 Type A Securities or Type B Securities
evidenced thereby, for the purpose of receiving interest on the Debt
Securities or distributions 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 interest on
the Debt Securities or the Contract Adjustment Payments payable in
respect of the Purchase Contracts constituting a part of the Type A
Securities or Type B Securities evidenced thereby shall be overdue and
notwithstanding any notice to the contrary, and neither the Company
nor the Agent, nor any agent of the Company or the Agent, shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
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 Common Shares on or
after the Purchase Contract Settlement Date, upon the transfer of Debt
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 a
Type A Security 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 upon written request be
returned to the Company.
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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 Type B Securities.
A Holder may separate the Debt Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as
applicable, from the related Purchase Contracts in respect of a Type A
Security by substituting for such Debt 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 principal amount of such Debt Securities or for the
aggregate Stated Amount of 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 Debt 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 principal amount
of the Debt Securities comprising part of such Type A Securities or
for the aggregate Stated Amount of the appropriate Applicable
Ownership Interest (as specified in clause (A) of the definition of
such term) of the Treasury Portfolio comprising part of such Type A
Securities, as the case may be, and (b) (i) 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 Type B Securities being created by the holder,
over the Contract Adjustment Payments that have accrued over the same
time period on the related Type A Securities, which amount the Agent
shall promptly remit to the Company, and (ii) transferring the related
Type A Securities 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 Debt Securities or the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be,
underlying such Type A Securities, 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,
Debt Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, having a corresponding
aggregate principal amount of such Debt Securities or aggregate Stated
Amount of the appropriate Applicable Ownership Interest (as specified
-24-
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 Type A Securities;
(ii) transfer the Debt 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 Type B Certificate executed by the Company in accordance
with Section 3.3 evidencing the same number of Purchase Contracts as
were evidenced by the cancelled Type A Securities.
Holders who elect to separate the Debt 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 Debt 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 ______ Type A Securities if Debt Securities are being
substituted by Treasury Securities, or (ii) only in integral multiples
of _______ Type A Securities 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 Type
A Securities or fails to deliver a Type A Certificate(s) to the Agent
after depositing Treasury Securities with the Collateral Agent, the
Debt Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be, constituting a part of
such Type A Security, and any interest on such Debt Securities or
distributions with respect to 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 Type A Security is so transferred or the Type A Certificate
is so delivered, as the case may be, or, with respect to a Type A
Certificate, such Holder provides evidence satisfactory to the Company
and the Agent that such Type A 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 a Type A Security remains in effect, such
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Type A Security shall not be separable into its constituent parts, and
the rights and obligations of the Holder in respect of the Debt
Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, and Purchase Contract
comprising such Type A Security may be acquired, and may be
transferred and exchanged, only as a Type A Security.
Section 3.14. Establishment or Reestablishment of Type A Securities.
A Holder of a Type B Security may create or recreate Type A
Securities at any time 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 Debt Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be, having an aggregate principal amount in the case
of the Debt Securities, or an aggregate Stated Amount of the
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 Type B Securities and (b)
transferring the related Type B Securities 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 Debt
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 Type B Securities, whereupon the
Agent shall promptly give such instruction to the Collateral Agent,
substantially in the form of Exhibit C hereto. Upon receipt of the
Debt 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 Type B Security;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver an Type A Certificate executed by the Company in accordance
with Section 3.3 evidencing the same number of Purchase Contracts as
were evidenced by the cancelled Type B Securities.
Holders who elect to separate Treasury Securities from the
related Purchase Contract and to substitute Debt Securities for such
-26-
Treasury Securities 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 of Type B Securities may establish or reestablish Type A
Securities in integral multiples of _______ Type B Securities for
_______ Type A Securities if a Tax Event Redemption has not occurred,
and in integral multiples of ________ Type B Securities for _______
Type A Securities if a Tax Event Redemption has occurred.
In the event a Holder making a Collateral Substitution pursuant
to this Section 3.13 fails to effect a book-entry transfer of the Type
B Securities or fails to deliver a Type B Certificate(s) to the Agent
after depositing Debt Securities with the Collateral Agent, the
Treasury Securities constituting a part of such Type B Security, and
any interest on such Treasury Securities shall be held in the name of
the Agent or its nominee in trust for the benefit of such Holder,
until such Type B Security is so transferred or the Type B Certificate
is so delivered, or, with respect to a Type B Certificate, such Holder
provides evidence satisfactory to the Company and the Agent that such
Type B Certificate has been destroyed, lost or stolen, together with
any indemnity that may be required by the Agent and the Company.
Except as provided in this Section 3.14, for so long as the
Purchase Contract underlying a Type B Security remains in effect, such
Type B Security shall not be separable into its constituent parts and
the rights and obligations of the Holder of such Type B Security in
respect of the Treasury Security and Purchase Contract comprising such
Type B Security may be acquired, and may be transferred and exchanged
only as a Type B Security.
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 Debt Securities, the appropriate Applicable Ownership
Interest of the Treasury Portfolio or the Treasury Securities, as the
case may be, underlying the Type A Securities and the Type B
Securities pursuant to the terms of the Pledge Agreement, the Agent
shall request transfer instructions with respect to such Debt
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 Type A Register or the Type B Register, as the case
may be. Upon book-entry transfer of the Type A Securities or Type B
Securities or delivery of a Type A Certificate or Type B Certificate
to the Agent with such transfer instructions, the Agent shall transfer
the Debt Securities, the Treasury Portfolio or Treasury Securities, as
the case may be, underlying such Type A Securities or Type B
Securities, as the case may be, to such Holder by book-entry transfer,
or other appropriate procedures, in accordance with such instructions.
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In the event a Holder of Type A Securities or Type B Securities fails
to effect such transfer or delivery, the Debt Securities, the
appropriate Applicable Ownership Interest of the Treasury Portfolio or
Treasury Securities, as the case may be, underlying such Type A
Securities or Type B Securities, as the case may be, and any interest
thereon, shall be held in the name of the Agent or its nominee in
trust for the benefit of such Holder, until such Type A Securities or
Type B Securities are transferred or the Type A Certificate or Type B
Certificate is surrendered or such Holder provides satisfactory
evidence that such Type A Certificate or Type B 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 Debt Securities
Section 4.1. Payment of Interest; Rights to Interest Preserved;
Interest Rate Reset; Notice.
A payment of interest on any Debt Securities or distribution with
respect to 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 Type A Certificate (or one or
more Predecessor Type A Certificates) of which such Debt Securities 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 Type A Certificate evidencing Debt Securities delivered
under this Agreement upon registration of transfer of or in exchange
for or in lieu of any other Type A Certificate shall carry the rights
to payment of interest accrued and unpaid, and to accrue interest,
which is carried by the Debt Securities underlying such other Type A
Certificate.
In the case of any Type A Security 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
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Settlement of the underlying Purchase Contract is effected on an 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, interest on the Debt
Securities or distributions with respect to the appropriate Applicable
Ownership Interest of the Treasury Portfolio, as the case may be,
underlying such Type A Securities 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
interests shall, subject to receipt thereof by the Agent, be payable
to the Person in whose name the Type A Certificate (or one or more
Predecessor Type A 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 Type A
Securities 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, payment of interest on the
related Debt Securities or distributions with respect to 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 Type A Securities; provided, however,
that to the extent that such Holder continues to hold the separated
Debt Securities that formerly comprised a part of such Holder's Type A
Securities, such Holder shall be entitled to receive the payment of
interest on such separated Debt Securities.
The applicable Coupon Rate on the Debt 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
Debt 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 Debt Securities if published in the
____________ newspaper in ______________.
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 Type A Securities or Type B
Securities, of such Reset Announcement Date and the procedures to be
followed by such Holders of Type Securities A who intend to settle
their obligation under the Purchase Contract with separate cash on the
Purchase Contract Settlement Date.
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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 Debt 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 Debt
Securities are entitled to vote or upon any solicitation of consents,
waivers or proxies of holders of Debt Securities, the Agent shall, as
soon as practicable thereafter, mail to the Holders of Type A
Securities 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
Debt Securities entitled to vote) shall be entitled to instruct the
Agent as to the exercise of the voting rights pertaining to the Debt
Securities underlying their Type A Securities and (c) stating the
manner in which such instructions may be given. Upon the written
request of the Holders of Type A Securities 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 Debt Securities as to which any particular
voting instructions are received. In the absence of specific
instructions from the Holder of an Type A Securities, the Agent shall
abstain from voting the Debt Security underlying such Type A
Securities. The Company hereby agrees, if applicable, to solicit
Holders of Type A Securities to timely instruct the Agent in order to
enable the Agent to vote such Debt Securities and the Trust shall
covenant to such effect in the Declaration.
Section 4.3. Tax Event Redemption.
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 Debt Securities shall be delivered to the Collateral Agent
in exchange for the Pledged Debt 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 Type A Securities the Treasury
Portfolio and promptly remit the remaining portion of such Redemption
Price to the Agent for payment to the Holders of such Type A
Securities. The Treasury Portfolio will be substituted for the Pledged
Debt 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 a Type A Security to purchase the Common
Shares of the Company under the Purchase Contract constituting a part
of such Type A Security. Following the occurrence of a Tax Event
Redemption prior to the Purchase Contract Settlement Date, the Holders
of Type A Securities and the Collateral Agent shall have such security
interests, rights and obligations with respect to the Treasury
Portfolio as the Holder of Type A Securities and the Collateral Agent
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had in respect of the Debt Security 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 Debt Securities shall be deemed to be
reference to such Treasury Portfolio. The Company may cause to be made
in any Type A 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 Debt Securities as collateral.
ARTICLE V
The Purchase Contracts
Section 5.1. Purchase of Common Shares.
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 Common Shares
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"), ______ Common Shares per
Purchase Contract, (b) if the Applicable Market Value is less than the
Threshold Appreciation Price, but is greater than $_______, the number
of Common Shares equal to the Stated Amount divided by the Applicable
Market Value and (c) if the Applicable Market Value is less than or
equal to $_________, _____Common Shares 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 Common Shares will be
issued upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing
Price per Common Share 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 Shares 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
Shares on the New York Stock Exchange (the "NYSE") on such date or, if
the Common Shares are not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the NYSE. A
"Trading Day" means a day on which the Common Shares (A) are not
suspended from trading on any national or regional securities exchange
or association and (B) has traded at least once on the national or
regional securities exchange or association that is the primary market
for the trading of the Common Shares.
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Each Holder of a Type A Security or a Type B Security, 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 Debt
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 a Type A Security or a Type B Security, 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
Debt 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 _____________________ 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 Type A
Register or Type B 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.
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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 a Type A
Security) 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 NYSE 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
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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 Common Shares (in addition to a number of Common Shares 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.
No fractional Common Shares 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.
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 shares or make guarantee payments with
respect to the foregoing (other than (i) purchases or acquisitions of
capital shares of the Company in connection with the satisfaction by
the Company of its obligations under any employee 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 shares of the Company, (ii) as a
result of a reclassification of the Company's capital shares or the
exchange or conversion of one class or series of the Company's capital
shares for another class or series of the Company's capital shares,
(iii) the purchase of fractional interests in the Company's capital
shares pursuant to the conversion or exchange provisions of such
capital shares or the security being converted or exchanged, (iv)
dividends or distributions in capital shares of the Company (or rights
to acquire capital shares) or repurchases or redemptions of capital
shares solely from the issuance or exchange of capital shares or (v)
redemptions or repurchases of any rights outstanding under a
shareholder rights plan or the declaration thereunder of a dividend of
rights in the future).
Section 5.4. Payment of Purchase Price.
(a) (i) 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 a Type A Security must notify the Agent by use of
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a notice in substantially the form of Exhibit E hereto of its
intention to pay in cash ("Cash Settlement") the Purchase Price for
the Common Shares to be purchased pursuant to a Purchase Contract.
Such notice shall be made on or prior to 5:00 p.m., __________________
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.
(ii) A Holder of a Type A Security 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.,
______________________ 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.
(iii) If a Holder of a Type A Security 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 Debt Securities pursuant to the Remarketing
as described in paragraph (b) below. If a Holder of a Type A Security
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 Debt 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 Debt Securities, including those rights
specified in paragraph (c) below.
(b) In order to dispose of the Debt Securities of Type A
Security 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 Debt Securities. In order to facilitate the remarketing, the
Agent shall notify, by 10:00 a.m., ____________________ time, on the
fourth Business Day immediately preceding the Purchase Contract
Settlement Date, the Remarketing Agent of the aggregate number of Debt
Securities to be remarketed. Concurrently, the Collateral Agent,
pursuant to the terms of the Pledge Agreement, will present for
remarketing such Debt Securities to the Remarketing Agent. Upon
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receipt of such notice from the Agent and such Debt 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 Debt Securities on
such date at a price of approximately ________% (but not less than
100%) of the aggregate principal amount of such Debt Securities, plus
accrued and unpaid interest (including deferred interest), if any,
thereon. After deducting as the remarketing fee ("Remarketing Fee") an
amount not exceeding ______ basis points of the aggregate principal
amount of the remarketed Debt Securities from any amount of such
proceeds in excess of the aggregate principal amount of the remarketed
Debt Securities plus accrued and unpaid interest (including any
deferred interest), 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 principal
amount of such Debt Securities, will automatically be applied by the
Collateral Agent, in accordance with the Pledge Agreement to satisfy
in full such Type A Security holders' obligations to pay the Purchase
Price for the Common Shares 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 Type A
Security. Type A Security Holders whose Debt 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
Debt Securities of such Holders of Type A Securities at a price not
less than 100% of the aggregate principal amount of such Debt
Securities plus accrued and unpaid interest (including deferred
interest), 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 Debt
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 Debt Securities, any accrued and unpaid interest (including any
deferred interest) on such Debt Securities will become payable by the
Company to the Agent for payment to the Holder of the Type A
Securities to which such Debt Securities relates. Such payment will be
made by the Company on or prior to 11 a.m. ________________________
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 _________________________, which is
expected to be The Wall Street Journal.
(c) With respect to any Debt Securities beneficially owned by
Holders who have elected Cash Settlement but failed to deliver cash as
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required in (a)(ii) above, or with respect to Debt 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 Debt Securities in full
satisfaction of the Holders obligations under the Purchase Contracts
or (ii) sell the Debt Securities in one or more public or private
sales.
(d) (i) Unless a Holder of Type B Securities or Type A
Securities (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 Type B Security or Type A Security (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 Common Shares to be purchased pursuant
to a Purchase Contract on or prior to 5:00 p.m., _______________________
time, on the second Business Day immediately preceding the Purchase
Contract Settlement Date.
(ii) A Holder of a Type B Security or Type A Security (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., ___________________________ 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.
(iii) If a Holder of a Type B Security 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 a Type A Security (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
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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 Type B Security or Type A
Security when received.
(e) Any distribution to Holders of excess funds and interest
described above, shall be payable at the office of the Agent in
______________________ 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 Common Shares 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 Common Shares 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 Debt 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 Debt 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 Debt
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.
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Section 5.5. Issuance of Common Shares.
Unless a Termination Event 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 Common Shares
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 Common Shares registered in the name of the Agent (or its
nominee) as custodian for the Holders (such certificates for Common
Shares, together with any dividends or distributions for which both 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 Common Shares 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 Common Shares
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, Share Splits, Etc.
(1) In case the Company shall pay or make a dividend or
other distribution on the Common Shares in Common Shares, the
Settlement Rate, as in effect at the opening of business on the day
following the date fixed for the determination of shareholders
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 Common Shares 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,
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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 Common Shares 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 Common Shares. The
Company will not pay any dividend or make any distribution on Common
Shares held in the treasury of the Company.
(2) In case the Company shall issue rights, options or
warrants to all holders of its Common Shares (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 shareholders entitled to receive such rights, options
or warrants, to subscribe for or purchase Common Shares at a price per
share less than the Current Market Price per Common Share on the date
fixed for the determination of shareholders 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 Common Shares outstanding
at the close of business on the date fixed for such determination plus
the number of Common Shares which the aggregate of the offering price
of the total number of Common Shares so offered for subscription or
purchase would purchase at such Current Market Price and the
denominator shall be the number of Common Shares outstanding at the
close of business on the date fixed for such determination plus the
number of Common Shares 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 Common Shares 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 Common Shares. The
Company shall not issue any such rights, options or warrants in
respect of Common Shares held in the treasury of the Company.
(3) In case outstanding Common Shares shall be subdivided
or split into a greater number of Common Shares, 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 Common
Shares shall each be combined into a smaller number of Common Shares,
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.
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(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Shares 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 shareholders entitled to receive such distribution by a fraction of
which the numerator shall be the Current Market Price per share of the
Common Shares 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 Common Share and the
denominator shall be such Current Market Price per Common Share, such
adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
shareholders 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 Shares 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 Shares 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 Shares 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
Common Share on the date for the determination of holders of Common
Shares entitled to receive such distribution times the number of
Common Shares 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 shareholders entitled to receive such
distribution by a fraction (i) the numerator of which shall be equal
to the Current Market Price per Common Share on the date fixed for
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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 Common
Shares outstanding on such date for determination and (ii) the
denominator of which shall be equal to the Current Market Price per
Common Share 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 Shares shall expire and such tender or exchange offer (as
amended upon the expiration thereof) shall require the payment to
shareholders (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 Shares 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 Shares 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 Common Share 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 Common
Shares 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 Common Share on the date of the
Expiration Time and (II) the number of Common Shares 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 shareholders 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 Common Share as of the Expiration Time
and (B) the number of Common Shares outstanding (including any
tendered shares) as of the Expiration Time less the number of all
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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 Shares into securities
including securities other than Common Shares (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 Shares to all holders of Common Shares
(and the effective date of such reclassification shall be deemed to be
"the date fixed for the determination of shareholders 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 Common Shares outstanding immediately prior to such
reclassification into the number of Common Shares 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 Common Share 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 Shares trade in a 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 Common Share (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
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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 Common Shares resulting from any dividend or distribution
of shares or issuance of rights or warrants to purchase or subscribe
for shares 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 Shares outstanding immediately prior to the merger
or consolidation are 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 Common Shares
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 Shares 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 Shares held by
Affiliates of the Company and non-affiliates and such Holder failed to
exercise its rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such
Reorganization Event (provided that if the kind or amount of
securities, cash and other property receivable upon such
Reorganization Event is not the same for each Common Share held
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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:
(i) forthwith compute the Settlement Rate in accordance
with Section 5.6 and prepare and transmit to the Agent a Company
Certificate setting forth the Settlement Rate, the method of
calculation thereof in reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an
event that requires an adjustment to the Settlement Rate pursuant to
Section 5.6 (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 Common Shares, 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
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deliver any Common Shares 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 Shares, 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 Debt 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 Type A Securities, or Treasury Securities in
the case of Type B Securities, 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 Type A Securities (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 Type B Securities 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 Type A Securities, Purchase Contracts underlying Type
A Securities 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 $____________ 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
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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 Type A Certificate, the payment of interest on
the related Debt 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 Shares 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., ________________ 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., _______________ 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, Common Shares 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 Common
Shares 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 Common Shares
issuable upon Early Settlement of Purchase Contracts to be issued and
delivered, and (ii) the related Debt Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, in the case
of Type A Securities, or the related Treasury Securities, in the case
of Type B Securities, 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 Common Shares from the Company and the Debt Securities,
the appropriate Applicable Ownership Interest of the Treasury
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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 Debt
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 Common Shares
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 Common
Shares 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 Common Shares 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 Common Shares 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 share and similar taxes attributable to
the initial issuance and delivery of the Common Shares 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 Common Share 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
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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 Shares.
In the event that Contract Adjustment Payments shall constitute a
component of Type A Securities or Type B Securities, the Holder of any
Type A Security or Type B Security shall have the right, which is
absolute and unconditional (subject to the right of the Company to
defer payment thereof pursuant to Section 5.3, 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 Shares 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 Shares,
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
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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 Type A
Securities or Type B Securities, by its acceptance of such Type A
Securities or Type B Securities 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 payment of interest on any Debt 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
Common Shares 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.
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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) 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.
(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.
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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 a Company 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 a Company Certificate of
the Company;
(d) the Agent may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the 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
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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 such compensation for
all services rendered by it hereunder as the parties shall agree from
time to time;
(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
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(or being a member of a bank holding company having) a combined
capital and surplus of at least $_____________ and subject to
supervision or examination by Federal or State authority. 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
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situated, petition any court of competent jurisdiction for the removal
of the Agent and the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any
cause, the Company, by a Board Resolution, shall promptly appoint a
successor Agent and shall comply with the applicable requirements of
Section 7.10. If no successor Agent shall have been so appointed by
the Company and accepted appointment in the manner required by Section
7.10, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent
to give, notice of each resignation and each removal of the Agent and
each appointment of a successor Agent by mailing written notice of
such event by first-class mail, postage prepaid, to all Holders 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
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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
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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.
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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 Type A Securities to substitute the Treasury Securities for
the Pledged Debt Securities or the rights of holders of Type B
Securities to substitute Debt 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 Payment is payable;
(4) impair the right to institute suit for the enforcement of
any Purchase Contract;
(5) reduce the number of Common Shares to be purchased pursuant
to any Purchase Contract, increase the price to purchase Common Shares
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 Type A Securities or the Type B
Securities, 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
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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
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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 Arvin Industries, Inc. 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.
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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 ____________________________________
an office or agency where Certificates may be presented or surrendered
for acquisition of Common Shares 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 a Type
A Security 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
___________________________ 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 Shares.
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 Shares the full
number of Common Shares issuable against tender of payment in respect
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of all Purchase Contracts constituting a part of the Securities
evidenced by Outstanding Certificates.
Section 10.4. Covenants as to Common Shares.
The Company covenants that all Common Shares 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
ARVIN INDUSTRIES, INC.
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
-----------------------------
as Purchase Contract Agent
By:
--------------------------
Name:
Title:
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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.
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Form of Face of Type A Certificate
% Type A Securities
----------
This Type A Certificate certifies that ___________ is the __________
registered Holder of the number of Type A Securities set forth above.
Each Type A Security represents (i) either (a) one ____% Debt Security
due __________ (the "Debt Security") of Arvin Industries, Inc.
(the "Company"), in an aggregate principal amount of $___________,
subject to the Pledge of such Debt Securities 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 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 Debt Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio,
as the case may be, constituting part of each Type A Securities
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 Type A Securities.
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) of the
Treasury Portfolio, as the case may be, or payments of interest on,
any (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 Type A Securities 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 Debt 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 Debt
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.,
_____________________ 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., ____________________________ time,
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on a Business Day, then such payment shall be made no later than 10:30
a.m., ___________________________ 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) of the Treasury Portfolio, as the
case may be, of any Pledged Debt 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, 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 Type A Securities of which such Pledged Debt Securities or the
Treasury Portfolio, as the case may be, are a part under the Purchase
Contracts forming a part of such Type A Securities. Payment of
interest on any Debt 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 a Type
A Security evidenced hereby which are payable quarterly in arrears on
_______________________ and each year, commencing __________________,
___________________ (a "Payment Date"), shall, subject to receipt
thereof by the Agent from the Collateral Agent, be paid to the Person
in whose name this Type A Certificate (or a Predecessor Type A
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 Type A Certificate to purchase, and the Company to sell, on
_____________(the "Purchase Contract Settlement Date"), at a price
equal to $_________ (the "Stated Amount"), a number of Common Shares,
$2.50 par value ("Common Shares"), 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 Type A Securities 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 Common Shares 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 Debt 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 Type A Security 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 a Type A Security 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
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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 Type A Certificate
(or a Predecessor Type A Certificate) is registered at the close of
business on the Record Date for such Payment Date.
Payment of interest on the Debt 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 ____________________________ or, at the option of the
Company, by check mailed to the address of the Person entitled thereto
as such address appears on the Type A 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 Type A 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.
ARVIN INDUSTRIES, INC.
By:
---------------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts evidenced hereby)
By:
---------------------------------
not individually but solely as
Attorney-in-Fact of such Holder
By:
--------------------------------
Name:
Title:
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Dated: ,
------- ----
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Type A Certificates referred to in the within
mentioned Purchase Contract Agreement.
By:
---------------------------------
as Purchase Contract Agent
By:
---------------------------------
Authorized Officer
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(Form of Reverse of Type A Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of ___________, ____ (as may be
supplemented from time to time, the "Purchase Contract Agreement"),
between the Company and _____________, 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 Type A
Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of
this Type A 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 Common Shares 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 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"),
______ Common Shares per Purchase Contract, (b) if the Applicable
Market Value is less than the Threshold Appreciation Price but is
greater than $___________, the number of Common Shares 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
$_________ Common Shares per Purchase Contract, in each case subject
to adjustment as provided in the Purchase Contract Agreement. No
fractional Common Shares 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 Type A Securities to purchase at the Purchase Price,
and the Company to sell, a number of newly issued Common Shares equal
to the Early Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing
Price per Common Share 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 Shares 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
Shares on the New York Stock Exchange (the "NYSE") on such date or, if
the Common Shares are 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 Shares are so
listed, or if the Common Shares are not so listed on a United States
national or regional securities exchange, the last quoted bid price
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for the Common Shares in the over-the-counter market as reported on
the NYSE, if such bid price is not available, the market value of the
Common Shares on such. A "Trading Day" means a day on which the Common
Shares (A) are not suspended from trading on any national or regional
securities exchange or association at the close of business and (B)
have traded at least once on the national or regional securities
exchange or association that is the primary market for the trading of
the Common Shares.
In accordance with the terms of the Purchase Contract Agreement,
the Holder of this Type A Certificate shall pay the Purchase Price for
the Common Shares purchased pursuant to each Purchase Contract
evidenced hereby by effecting a Cash Settlement, an Early Settlement
or from the proceeds of a remarketing of the related Pledged Debt
Securities of such holders. A Holder of Type A Securities who does not
elect, on or prior to 5:00 p.m. ____________ 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 Common Shares to be issued under
the related Purchase Contract from the Proceeds of the sale of the
related Pledged Debt 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 Debt Securities related to this Type A
Certificate, any accrued and unpaid interest (including deferred
interest) on such Pledged Debt Securities will become payable by the
Company to the holder of this Type A Security Certificate in the
manner provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any Common Shares 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 Common Shares 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 Type A
Register. Upon and after the occurrence of a Termination Event, the
Collateral Agent shall release the Pledged Debt Security (as defined
in the Pledge Agreement) or the appropriate Applicable Ownership
Interest of the Treasury Portfolio forming a part of each Type A
Security from the Pledge. A Type A Security shall thereafter represent
the right to receive the Debt Security or the appropriate Applicable
Ownership Interest of the Treasury Portfolio forming a part of such
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Type A 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 Debt Securities. Upon receipt of notice of
any meeting at which holders of Debt Securities are entitled to vote
or upon the solicitation of consents, waivers or proxies of holders of
Debt Securities, the Agent shall, as soon as practicable thereafter,
mail to the Type A Security holders a notice (a) containing such
information as is contained in the notice or solicitation, (b) stating
that each Type A Security 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 Debt Securities entitled to
vote) shall be entitled to instruct the Agent as to the exercise of
the voting rights pertaining to the Debt Securities constituting a
part of such holder's Type A Securities and (c) stating the manner in
which such instructions may be given. Upon the written request of the
Type A Security 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 Debt Securities as to which any particular voting instructions are
received. In the absence of specific instructions from the Holder of a
Type A Security, the Agent shall abstain from voting the Debt Security
evidenced by such Type A Securities.
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 Debt Securities shall be
delivered to the Collateral Agent in exchange for the Pledged Debt
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 Type A Securities.
Following the occurrence of a Tax Event Redemption prior to the
Purchase Contract Settlement Date, the Holders of Type A Securities
and the Collateral Agent shall have such security interests rights and
obligations with respect to the Treasury Portfolio as the Holder of
Type A Securities and the Collateral Agent had in respect of the Debt
Securities, 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 Debt Securities shall be deemed to be
reference to such Treasury Portfolio.
The Type A Certificates are issuable only in registered form and
only in denominations of a single Type A Security and any integral
multiple thereof. The transfer of any Type A Certificate will be
registered and Type A Certificates may be exchanged as provided in the
Purchase Contract Agreement. The Type A Registrar may require a
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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 Treasury
Securities for Debt Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, thereby creating Type B
Securities, shall be responsible for any fees or expenses payable in
connection therewith. Except as provided in the Purchase Contract
Agreement, for so long as the Purchase Contract underlying a Type A
Security remains in effect, such Type A Security shall not be
separable into its constituent parts, and the rights and obligations
of the Holder of such Type A Security in respect of Debt Securities or
the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, and Purchase Contract constituting such
Type A Security may be transferred and exchanged only as a Type A
Security. The holder of an Type A Securities may substitute for the
Pledged Debt 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
Debt 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 "Type B Security." A Holder may make such
Collateral Substitution only in integral multiples of _____ Type A
Securities for _____ Type B Securities; provided, however, that if a
Tax Event Redemption has occurred and the Treasury Portfolio has
become a component of the Type A Securities, a Holder may make such
Collateral Substitutions only in integral multiples of ______________
Type A Securities for ________________ Type B Securities. 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 Type A Certificate shall not exceed $______________. All such
adjustments to the equivalent aggregate principal amount of this Type
A Certificate shall be duly recorded by placing an appropriate
notation on the Schedule attached hereto.
A Holder of Type B Securities may create or recreate Type A
Securities by delivering to the Collateral Agent Debt Securities or
the appropriate Applicable Ownership Interest of the Treasury
Portfolio, with a Stated Amount, in the case of such Debt 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
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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 Type
A 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
___________________________ 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 Type A 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 Type A
Certificate will receive on the Purchase Contract Settlement Date, in
lieu of a cash payment, a number of Common Shares equal to (x) the
aggregate amount of Deferred Contract Adjustment Payments payable to
the Holder of this Type A 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 shares or make guarantee payments with
respect to the foregoing (other than (i) purchases or acquisitions of
capital shares of the Company in connection with the satisfaction by
the Company of its obligations under any employee 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
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the Company to purchase capital shares of the Company, (ii) as a
result of a reclassification of the Company's capital shares or the
exchange or conversion of one class or series of the Company's capital
shares for another class or series of the Company's capital shares,
(iii) the purchase of fractional interests in the Company's capital
shares pursuant to the conversion or exchange provisions of such
capital shares or the security being converted or exchanged, (iv)
dividends or distributions in capital shares of the Company (or rights
to acquire capital shares) or repurchases or redemptions of capital
shares solely from the issuance or exchange of capital shares or (v)
redemptions or repurchases of any rights outstanding under a
shareholder rights plan or 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 Type A Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Debt
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 Type
A Securities, Holders may early settle Type A Securities only in
integral multiples of _____________ Type A Securities. In order to
exercise the right to effect Early Settlement with respect to any
Purchase Contracts evidenced by this Type A Certificate, the Holder of
this Type A Certificate shall deliver this Type A 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
-73-
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 Debt 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
Common Shares on account of each Purchase Contract forming part of a
Type A Security 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 Common Shares 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 Type A 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 Type A Certificate. The
Company covenants and agrees, and the Holder, by its acceptance
thereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
The Holder of this Type A Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Type A Securities evidenced hereby on
his behalf as his attorney-in-fact, expressly withholds any consent to
the assumption (i.e., affirmance) of the Purchase Contracts by the
Company or its trustee in the event that the Company becomes the
subject of a case under the Bankruptcy Code, agrees to be bound by the
terms and provisions thereof, covenants and agrees to perform 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 its behalf as its
attorney-in-fact, and consents to the Pledge of the Debt Securities or
the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be, underlying this Type A 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 Debt
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
-74-
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
________________.
The Company, the Agent and its Affiliates and any agent of the
Company or the Agent may treat the Person in whose name this Type A
Certificate is registered as the owner of the Type A Securities
evidenced hereby for the purpose of receiving payments of interest
payable quarterly on the Debt 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 Common
Shares.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Agent.
-75-
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
______________ ______________ Custodian ________________
(cust) (minor)
UNIF GIFT MIN ACT - Under Uniform Gifts to Minors Act (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 Type A Certificates and all rights thereunder,
hereby irrevocably constituting and appointing
-------------------------------------------------- attorney to
transfer said Type A Certificates on the books of Arvin Industries,
Inc. with full power of substitution in the premises.
Dated:
------------------------ -----------------------------
Signature
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within Type A Certificates in
every particular, without
alteration or enlargement or any
change whatsoever.
-76-
Signature Guarantee:
-------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may
be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for Common
Shares deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of
Type A Securities evidenced by this Type A Certificate be registered
in the name of, and delivered, together with a check in payment for
any fractional share, to the undersigned at the address indicated
below unless a different name and address have been indicated below.
If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable
incident thereto.
Dated:
---------------------- ---------------------------------------
Signature
Signature Guarantee:
-------------------------------
(if assigned to another person)
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which
requirements include membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
-77-
If shares are to be registered in the name of and delivered to a
Person other than the Holder, please (i) print such Person's name
and address and (ii) provide a guarantee of your signature:
Please print name and address
of Registered Holder:
----------------------------- ------------------------
Name Name
----------------------------- -------------------------
Address Address
----------------------------- -------------------------
-------------------------
Social Security or other
Taxpayer Identification
Number, if any
-78-
ELECTION TO SETTLE EARLY
The undersigned Holder of this Type A 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 Type A
Securities evidenced by this Type A Certificate specified below. The
undersigned Holder directs that a certificate for Common Shares
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 Type A Certificate representing any Type A 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
Debt 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:
-----
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which
requirements include membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Number of Securities evidenced hereby as to which Early
Settlement of the related Purchase Contracts is being elected:
If Common Shares or Type A Certificates are to be registered in
the name of and delivered to and Pledged Debt 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 Debt Securities, or the
Treasury Portfolio, as the case may be, Transferable Upon Early
Settlement or a Termination Event:
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
-79-
[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:
============================================================================================================
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized
Principal Principal Certificate officer of
Amount Amount following such Trustee or
of the Global of the Global decrease or Securities Date
Certificate Certificate increase Custodian
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-80-
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 THEREON 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 THEREIN.
-81-
No.___________ Number of Type B Securities __________ CUSIP
No. ___________
Form of Face of Type B Certificate
This Type B Certificate certifies that ___________________is the
registered Holder of the number of Type B Securities set forth above.
Each Type B Security 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
Arvin Industries, Inc., an Indiana 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 Type B Securities 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 Type B Securities.
Each Purchase Contract evidenced hereby obligates the Holder of
this Type B Certificate to purchase, and the Company, to sell, on
_______________ (the "Purchase Contract Settlement Date"), at a price
equal to $_______ (the "Stated Amount"), a number of Common Shares,
$2.50 par value per share ("Common Shares"), 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 Type B Securities 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 Common Shares 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 Type B Certificate (or a Predecessor Type B 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 __________________________ or, at the option of the Company,
-82-
by check mailed to the address of the Person entitled thereto as such
address appears on the Type B 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 Type B 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.
ARVIN INDUSTRIES, INC.
By:_____________________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under
the Purchase Contracts)
By:_____________________________________
not individually but solely as
Attorney-in-Fact of such
Holder
By:__________________________________
Name:
Title:
Dated: ______________, ____
-83-
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Type B Securities referred to in the
within-mentioned Purchase Contract Agreement.
By: ,
---------------------------
as Purchase Contract Agent
By:
---------------------
Authorized Signatory
(Reverse of Type B Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of _______________, ____ (as may be
supplemented from time to time, the "Purchase Contract Agreement")
between the Company and ______________________________, 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 Type B Certificates are, and are to be,
executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of
this Type B 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 Common Shares 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"), _______
Common Shares per Purchase Contract, (b) if the Applicable Market
Value is less than the Threshold Appreciation Price but is greater
than $_________, the number of Common Shares 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 Common Shares per Purchase Contract, in each case
subject to adjustment as provided in the Purchase Contract Agreement.
No fractional Common Shares 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 Common Share 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 Shares on
any date of determination means the closing sale price (or, if no
-84-
closing price is reported, the last reported sale price) of the Common
Shares on the New York Stock Exchange (the "NYSE") on such date or, if
the Common Shares are 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 Shares are so
listed, or if the Common Shares are not so listed on a United States
national or regional securities exchange, the last quoted bid price
for the Common Shares 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 Shares 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 Shares (A) are 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) have
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 Shares.
In accordance with the terms of the Purchase Contract Agreement,
the Holder of this Type B Certificate shall pay the Purchase Price for
the Common Shares 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 Type B Securities equal
to the Stated Amount of such Purchase Contract to the purchase of the
Common Shares.
The Company shall not be obligated to issue any Common Shares 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 Common Shares 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 Type B 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 Type B Certificate.
The Type B Certificates are issuable only in registered form and
only in denominations of a single Type B Security and any integral
multiple thereof. The transfer of any Type B Certificate will be
registered and Type B Certificates may be exchanged as provided in the
Purchase Contract Agreement. The Type B 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
-85-
in connection therewith. A Holder who elects to substitute Debt
Securities or the appropriate Applicable Ownership Interest of the
Treasury Portfolio, as the case may be, for Treasury Securities,
thereby recreating Type A Securities, 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 Type B Security remains in effect, such Type B Security
shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Type B Security in respect of the
Treasury Security and the Purchase Contract constituting such Type B
Security may be transferred and exchanged only as a Type B Security. A
Holder of Type B Securities may create or recreate Type A Securities
by delivering to the Collateral Agent Debt Securities or the
appropriate Applicable Ownership Interest of the Treasury Portfolio,
with a Stated Amount, in the case of such Debt 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 a "Type A
Security." 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 Type B Certificate shall not exceed
$_____________. All such adjustments to the equivalent aggregate
principal amount of this Type B Certificate shall be duly recorded by
placing an appropriate notation on the Schedule attached hereto.
A Holder of a Type A Security may create or recreate a Type B
Security by delivering to the Collateral Agent Treasury Securities in
an aggregate principal amount equal to the aggregate principal amount
of the Pledged Debt 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 Debt 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 Type B Security may be
effected only in multiples of _____ Type A Securities for _______ Type
B Securities; provided, however, if a Tax Event Redemption has
occurred and the Treasury Portfolio has become a component of the Type
A Securities, a Holder may make such Collateral Substitution in
integral multiples of ______________ Type A Securities for
_____________ Type B Securities.
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 Type B
Certificate evidencing such Purchase Contract is registered at the
-86-
close of business on the Record Date for such Payment Date. Contract
Adjustment Payments will be payable at the office of the Agent in
______________________ 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 Type B 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 Type B
Certificate will receive on the Purchase Contract Settlement Date, in
lieu of a cash payment, a number of Common Shares equal to (x) the
aggregate amount of Deferred Contract Adjustment Payments payable to
the Holder of the Type B 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 shares or make guarantee payments with respect to
the foregoing (other than (i) purchases or acquisitions of capital
shares of the Company in connection with the satisfaction by the
Company of its obligations under any employee 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 shares of the Company, (ii) as a
result of a reclassification of the Company's capital shares or the
exchange or conversion of one class or series of the Company's capital
shares for another class or series of the Company's capital shares,
(iii) the purchase of fractional interests in the Company's capital
shares pursuant to the conversion or exchange provisions of the
Company's capital shares or the security being converted or exchanged,
-87-
(iv) dividends or distributions in capital shares of the Company (or
rights to acquire capital shares) or repurchases or redemptions of
capital shares solely from the issuance or exchange of capital shares
or (v) redemptions or repurchases of any rights outstanding under a
shareholder rights plan or the 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 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 Type B 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 Type B Certificate, the
Holder of this Type B Certificate shall deliver this Type B
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 Common Shares on account of each Purchase Contract forming part of
a Type B Security as to which Early Settlement is effected equal to
_______ Common Shares 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
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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 Type B 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 Type B 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 Type B Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Type B Securities 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 its behalf as its
attorney-in-fact, and consents to the Pledge of the Treasury
Securities underlying this Type B 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 ______________.
The Company, the Agent and its Affiliates and any agent of the
Company or the Agent may treat the Person in whose name this Type B
Certificate is registered as the owner of the Type B Securities
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
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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 Common Shares.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Agent.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
Custodian
---------- ----------- ---------------
(cust) (minor)
UNIF GIFT MIN ACT - Under Uniform Gifts to Minors Act (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 Type B Certificates and all rights thereunder, hereby
irrevocably constituting and appointing
---------------------------
attorney to transfer said Type B Certificates on the books of Arvin
Industries, Inc. with full power of substitution in the premises.
Dated:
-------------------------------------------------
Signature
NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Type B Certificates in every
particular, without alteration or enlargement or any change
whatsoever.
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Signature Guarantee:
-------------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may
be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
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SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for Common Shares
deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of
Type B Securities evidenced by this Type B 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:
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which
requirements include membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
If shares are to be registered in the name of and delivered to a
Person other than the Holder, please print such Person's name and
address:
Please print name and address
of Registered Holder:
------------------------ ------------------------
Name Name
------------------------ ------------------------
Address Address
------------------------
Social Security or other
Taxpayer Identification
Number, if any
-93-
ELECTION TO SETTLE EARLY
The undersigned Holder of this Type B 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 Type B
Securities evidenced by this Type B Certificate specified below. The
option to effect Early Settlement may be exercised only with respect
to Purchase Contracts underlying Type B Securities with an aggregate
Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for Common Shares
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 Type B Certificate representing any Type B Securities
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.
Date: By:
-------------- ---------------------------
Name:
Title:
Signature Guarantee:
-------------
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which
requirements include membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Number of Securities evidenced hereby as to which Early Settlement
of the related Purchase Contracts is being elected:
If Common Shares of Type B Certificates are to be registered 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:
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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:
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-----------------------------------------------------------------------
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[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:
==================================================================================================================
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized
Principal Principal Certificate officer of
Amount Amount following such Trustee or
of the Global of the Global decrease or Securities Date
Certificate Certificate increase Custodian
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EXHIBIT C
INSTRUCTION FROM PURCHASE CONTRACT AGENT TO
COLLATERAL AGENT
Attention:
Re: Securities of Arvin Industries, Inc. (the "Company")
We hereby notify you in accordance with Section [4.1] [4.2] of the
Pledge Agreement, dated as of ___________, ____, among the Company,
yourselves, as Collateral Agent, and ourselves, as Purchase Contract
Agent and as attorney-in-fact for the holders of [Type A Securities]
[Type B Securities] from time to time, that the holder of securities
listed below (the "Holder") has elected to substitute [$___________
aggregate [principal amount] of Treasury Securities] [$_____________
aggregate principal amount of Debt Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case
may be,] in exchange for the [Pledged Debt 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] [Debt
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 Debt 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
[Debt Securities or the appropriate Applicable Ownership Interest of
the Treasury Portfolio, as the case may be,] [Treasury Securities]
related to such [Type A Securities] [Type B Securities] to us in
accordance with the Holder's instructions.
Date: By:
--------------- ---------------------------------
Name:
Title:
Signature Guarantee:
---------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may
be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
Please print name and address of Registered Holder electing to
substitute [Treasury Securities] [Debt Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case
may be,] for the [Pledged Debt Securities or the appropriate
Applicable Ownership Interest of the Treasury Portfolio, as the case
may be,] [Pledged Treasury Securities]:
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------------------------------- -----------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
------------------------------------
------------------------------------
------------------------------------
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EXHIBIT D
INSTRUCTION TO PURCHASE CONTRACT AGENT
Attention:
Re: Securities of Arvin Industries, Inc. (the "Company")
The undersigned Holder hereby notifies you that it has delivered to
______________________, as Collateral Agent, $__________________
aggregate principal amount of [Treasury Securities] [Debt Securities
or the appropriate Applicable Ownership Interest of the Treasury
Portfolio, as the case may be,] in exchange for the [Pledged Debt
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][4.2] of
the Pledge Agreement, dated ______________, ____, 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 Debt Securities or the appropriate Applicable Ownership
Interest of the Treasury Portfolio, as the case may be,] [Pledged
Treasury Securities] related to such [Type A Securities] [Type B
Securities].
Date:___________________ By:______________________________
Name:
Title:
Signature Guarantee: ___________________
Please print name and address of Registered Holder:
____________________________ ________________________________
Name Social Security or other Taxpayer
Identification Number, if any
Address
_____________________________________
_____________________________________
_____________________________________
-99-
EXHIBIT E
NOTICE TO SETTLE BY SEPARATE CASH
Attention:
Re: Securities of Arvin Industries, Inc. (the "Company")
The undersigned Holder hereby irrevocably notifies you in
accordance with Section 5.4 of the Purchase Contract Agreement, dated
as of _____________, ____ 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. ____________________ 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 Common Shares 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 [Type A Securities]
[Type B Securities].
Date: By:
--------------- ---------------------------------
Name:
Title:
Signature Guarantee:
------------
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may
be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
Please print name and address of Registered Holder:
Please print name and address of Registered Holder:
--------------------------- ---------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
------------------------------------
------------------------------------
------------------------------------
-100-