Exhibit 4.28
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ITT HARTFORD GROUP, INC.
AND
[NAME OF PURCHASE CONTRACT AGENT],
AS PURCHASE CONTRACT AGENT
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PURCHASE CONTRACT AGREEMENT
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DATED AS OF , 1996
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TABLE OF CONTENTS
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ARTICLE ONE Definitions and other Provisions
of General Application .......................... 1
Section 1.1. Definitions...................................... 1
Section 1.2. Compliance Certificates and Opinions............. 8
Section 1.3. Form of Documents Delivered to Agent............. 9
Section 1.4. Acts of Holders; Record Dates.................... 10
Section 1.5. Notices, etc., to Agent and the Company.......... 11
Section 1.6. Notice to Holders; Waiver........................ 12
Section 1.7. Effect of Headings and Table of Contents......... 12
Section 1.8. Successors and Assigns........................... 13
Section 1.9. Separability Clause.............................. 13
Section 1.10. Benefits of Agreement............................ 13
Section 1.11. Governing Law.................................... 13
Section 1.12. Legal Holidays................................... 13
Section 1.13. Counterparts..................................... 13
Section 1.14. Inspection of Agreement.......................... 14
ARTICLE TWO Security Certificate Forms....................... 14
Section 2.1. Forms of Security Certificates Generally......... 14
Section 2.2. Form of Agent's Certificate of Authentication.... 15
ARTICLE THREE The Securities................................... 15
Section 3.1. Title and Terms; Denominations................... 15
Section 3.2. Rights and Obligations Evidenced
by the Security Certificates..................... 15
Section 3.3. Execution, Authentication, Delivery and Dating... 15
Section 3.4. Temporary Security Certificates.................. 16
Section 3.5. Registration; Registration of Transfer and
Exchange......................................... 17
Section 3.6. Mutilated, Destroyed, Lost and Stolen
Security Certificates............................ 20
Section 3.7. Persons Deemed Owners............................ 21
Section 3.8. Cancellation..................................... 22
Section 3.9. Securities Not Separable......................... 22
ARTICLE FOUR The Treasury Notes............................... 23
Section 4.1. Payment of Interest; Interest
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Rights Preserved............................. 23
Section 4.2. Transfer of Treasury Notes
Upon Occurrence of Termination Event......... 23
Section 4.3. Tax Ownership of Treasury Notes.............. 24
ARTICLE FIVE The Purchase Contracts..........................25
Section 5.1. Purchase of Shares of Common Stock........... 25
Section 5.2. Contract Fees................................ 27
Section 5.3. Deferral of Payment Dates
For Contract Fee............................. 27
Section 5.4. Payment of Purchase Price.................... 28
Section 5.5. Issuance of Shares of Common Stock........... 28
Section 5.6. Adjustment of Settlement Rate................ 29
Section 5.7. Notice of Adjustments and
Certain other Events......................... 36
Section 5.8. Termination Event; Notice.................... 37
Section 5.9. Early Settlement............................. 37
Section 5.10. No Fractional Shares......................... 39
Section 5.11. Charges and Taxes............................ 39
ARTICLE SIX Remedies........................................40
Section 6.1. Unconditional Right of Holders to
Receive Contract Fee......................... 40
Section 6.2. Restoration of Rights and Remedies........... 40
Section 6.3. Rights and Remedies Cumulative............... 40
Section 6.4. Delay or Ommission Not Waiver................ 41
Section 6.5. Undertaking for Costs........................ 41
Section 6.6. Waiver of Stay or Extension Laws............. 41
ARTICLE SEVEN The Agent.......................................42
Section 7.1. Certain Duties and Responsibilities.......... 42
Section 7.2. Notice of Default............................ 43
Section 7.3. Certain Rights of Agent...................... 43
Section 7.4. Not Responsible for Recitals
or Issuance of Securities.................... 44
Section 7.5. May Hold Securities.......................... 44
Section 7.6. Money Held in Trust.......................... 44
Section 7.7. Compensation and Reimbursement............... 44
Section 7.8. Corporate Agent Required; Eligibility........ 45
Section 7.9. Resignation and Removal; Appointment
of Successor................................. 45
Section 7.10. Acceptance of Appointment by
Successor.................................... 47
Section 7.11. Merger, Conversion, Consolidation
or Succession to Business.................... 48
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Section 7.12. Preservation of Information;
Communication to Holders..................... 48
Section 7.13. No Obligations of Agent...................... 49
Section 7.14. Tax Compliance............................... 49
ARTICLE EIGHT Supplemental Agreements.........................50
Section 8.1. Supplemental Agreements Without Consent
of Holders................................... 50
Section 8.2. Supplemental Agreements With Consent
of Holders................................... 50
Section 8.3. Execution of Supplemental Agreements......... 51
Section 8.4. Effect of Supplemental Agreements............ 51
Section 8.5. Reference to Supplemental Agreements......... 52
ARTICLE NINE Consolidation, Merger, Sale or
Conveyance......................................52
Section 9.1. Covenant Not to Merge, Consolidate, Sell
or Convey Property Except Under Certain
Conditions................................... 52
Section 9.2. Rights and Duties of
Successor Corporation........................ 52
Section 9.3. Opinion of Counsel to Agent.................. 53
ARTICLE TEN Covenants.......................................53
Section 10.1. Performance Under Purchase Contracts......... 53
Section 10.2. Maintenance of Office or Agency.............. 53
Section 10.3. Company to Reserve Common Stock.............. 54
Section 10.4. Covenants as to Common Stock................. 54
Section 10.5. Statements of Officers of the
Company as to Default........................ 54
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PURCHASE CONTRACT AGREEMENT, dated as of , 1996, between ITT HARTFORD
GROUP, INC., a Delaware corporation (the "Company"), and [NAME OF PURCHASE
CONTRACT AGENT], acting as purchase contract agent for the Holders of Securities
from time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Security Certificates evidencing the Securities.
All things necessary to make the Company's obligations under the
Securities, when the Security Certificates are executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Agent, as
in this Agreement provided, the valid obligations of the Company, and to
constitute these presents a valid agreement of the Company, in accordance with
its terms, have been done.
W I T N E S S E T H:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed as follows:
ARTICLE ONE
Definitions and other Provisions
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of General Application
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Section 1.1. Definitions. For all purposes of this Agreement, except as
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otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and
(2) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning specified
in Section 1.4.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Person named as the "Agent" in the first paragraph of
this instrument until a successor Agent shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Agent" shall mean the
Person who is then the Agent hereunder.
"Agreement" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more agreements supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning specified in Section 5.1.
"Beneficial Owner" has the meaning specified in Section 4.3.
"Board of Directors" means the board of directors of the Company or a duly
authorized committee of that board or officers of the Company to which authority
to act on behalf of that board has been delegated.
"Board Resolution" means one or more resolutions of the Board of Directors,
a copy of which has been certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification and delivered to the
Agent.
"Business Day" means any day that is not a Saturday, Sunday or a day on
which the NYSE or banking institutions or trust companies in The City of New
York are authorized or obligated by law or executive order to be closed.
"Closing Price" has the meaning specified in Section 5.1.
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"Collateral Agent" means [Name of Collateral Agent], as Collateral Agent
under the Pledge Agreement until a successor Collateral Agent shall have become
such pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Collateral Agent" shall mean the Person who is then the Collateral
Agent thereunder.
"Common Stock" means the Common Stock, $.01 par value per share, of the
Company.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor shall have become such, and thereafter
"Company" shall mean such successor.
"Contract Fee" means the fee payable by the Company in respect of each
Purchase Contract, equal to % per annum of the Stated Amount, accruing from ,
199 , computed on the basis of the actual number of days elapsed in a year of
365 or 366 days, as the case may be, plus any additional fees accrued pursuant
to Section 5.3[; except that on the initial Payment Date the Contract Fee shall
be reduced by an amount equal to accrued interest to , 199 , on the
Treasury Note consitituting a part of a Security].
"Corporate Trust office" means the principal office of the Agent in the
Borough of Manhattan, The City of New York, at which at any particular time its
corporate trust business shall be administered, which office at the date hereof
is located at , New York, New York .
"Current Market Price" has the meaning specified in Section 5.6(a)(8).
"Depositary" means a clearing agency registered under the Exchange Act that
is designated to act as Depositary for the Securities as contemplated by
Section 3.5.
"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).
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"Excess Treasury Notes" has the meaning specified in Section 4.2.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4.
"Expiration Time" has the meaning specified in Section 5.6(a)(6).
"Final Settlement Date" means , .
"Final Settlement Fund" has the meaning specified in Section 5.5.
"Global Security Certificate" means a Security Certificate that evidences
all or part of the Securities and is registered in the name of a Depositary or a
nominee thereof.
"Holder," when used with respect to a Security Certificate (or a Security),
means a Person in whose name the Security evidenced by such Security Certificate
(or the Security Certificate evidencing such Security) is registered in the
Security Register.
"Issuer Order" or "Issuer Request" means a written order or request signed
in the name of the Company by its President or a Vice President and by its
Treasurer, an Associate Treasurer, an Assistant Treasurer, its Controller, its
Secretary or an Assistant Secretary, and delivered to the Agent.
"NYSE" has the meaning specified in Section 5.1.
"Officers' Certificate" means a certificate signed by the President or any
Vice President and by the Treasurer, an Associate Treasurer, an Assistant
Treasurer, the Controller, the Secretary or an Assistant Secretary of the
Company and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by legal counsel,
who may be an employee of or counsel to the Company.
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"Outstanding Securities" means, as of the date of determination, all
Securities evidenced by then Outstanding Security Certificates, except:
(i) If a Termination Event has occurred, Securities for which the
underlying Treasury Notes have been theretofore deposited with the Agent in
trust for the Holders of such Securities; and
(ii) On and after the applicable Early Settlement Date, Securities as
to which the Holder has elected to effect Early Termination of the related
Purchase Contracts;
provided, however, that in determining whether the Holders of the requisite
number of Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
Affiliate of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Agent shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Securities which the Agent knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Agent the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any Affiliate of the Company.
"Outstanding Security Certificates" means, as of the date of determination,
all Security Certificates theretofore authenticated, executed and delivered
under this Agreement, except:
(i) Security Certificates theretofore cancelled
by the Agent or delivered to the Agent for cancellation; and
(ii) Security Certificates in exchange for or in lieu of which
other Security Certificates have been authenticated, executed on
behalf of the Holder and delivered pursuant to this Agreement, other
than any such Security Certificate in respect of which there shall
have been presented to the Agent proof satisfactory to it that such
Security Certificate is held by a bona fide purchaser in whose hands
the Securities evidenced by such Security Certificate are valid
obligations of the Company.
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"Payment Date" means each and , commencing , 199 .
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pledge" means the pledge under the Pledge Agreement of the Treasury Notes
constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the date hereof,
among the Company, the Collateral Agent and the Agent, on its own behalf and as
attorney-in-fact for the Holders from time to time of the Securities.
"Predecessor Security Certificate" of any particular Security Certificate
means every previous Security Certificate evidencing all or a portion of the
rights and obligations of the Holder under the Securities evidenced thereby;
and, for the purposes of this definition, any Security Certificate authenticated
and delivered under Section 3.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security Certificate shall be deemed to evidence the
same rights and obligations of the Holder as the mutilated, destroyed, lost or
stolen Security Certificate.
"Purchase Contract," when used with respect to any Security, means the
contract obligating the Company to sell and the Holder of such Security to
purchase Common Stock on the terms and subject to the conditions set forth in
Article Five hereof.
"Purchased Shares" has the meaning specified in Section 5.6(a)(6).
"Record Date" for the interest and Contract Fees payable on any Payment
Date means the Business Day next preceding such Payment Date.
"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.
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"Security" means the collective rights and obligations of a Holder of a
Security Certificate in respect of Treasury Notes with a principal amount equal
to the Stated Amount, subject to the Pledge thereof, and a Purchase Contract.
"Security Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Securities specified on such
certificate.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5.
"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 Final Settlement Date, a decree or order by a
court having jurisdiction in the premises shall have been entered adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization of the Company under the United States Bankruptcy Code or
any other similar applicable Federal or State law, and, unless such decree or
order shall have been entered within 60 days prior to the Final Settlement Date,
such decree or order shall have continued undischarged and unstayed for a period
of 60 days; or (ii) a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of the Company or of its property, or for the
winding up or liquidation of its affairs, shall have been entered, and, unless
such decree or order shall have been entered within 60 days prior to the Final
Settlement Date, such 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 Final
Settlement Date the Company shall institute proceedings to be adjudicated a
bankrupt, or shall consent to the filing of a bankruptcy proceeding against it,
or shall file a petition or answer or consent seeking reorganization under the
United States Bankruptcy Code or any other similar applicable Federal or State
law, or shall consent to the filing of any such petition, or shall consent to
the appointment of a receiver or liquidator or trustee or
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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 Notes" means % United States Treasury Notes due
, .
"Underwriting Agreement" means the Underwriting Agreement dated , 199
between the Company and ____________________ and ________________ as
representatives of the several Underwriters named therein.
"Vice President" means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president."
Section 1.2. Compliance Certificates and Opinions. Except as otherwise
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expressly provided by this Agreement, upon any application or request by the
Company to the Agent to take any action under any provision of this Agreement,
the Company shall furnish to the Agent an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Agreement relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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(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
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(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
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several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
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Section 1.4. Acts of Holders; Record Dates. (a) Any request, demand,
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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 by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Agent deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security Certificate evidencing such
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Agent or the Company in reliance thereon, whether or not notation
of such action is made upon such Security Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of outstanding
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Securities entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Agreement to be given, made or taken by Holders of Securities. If any record
date is set pursuant to this paragraph, the Holders of Outstanding Securities on
such record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite number of
Outstanding Securities on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite number of Outstanding Securities on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Agent in
writing and to each Holder of Securities in the manner set forth in Section 1.6.
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, etc., to Agent and the Company. Any request, demand,
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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,
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(1) the Agent by any Holder or by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or
mailed, first-class postage prepaid, to the Agent at
,
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 Hartford Plaza,
Hartford, Connecticut 06115, Attention: Treasurer, or at any other address
previously furnished in writing to the Agent by the Company.
Section 1.6. Notice to Holders; Waiver. Where this Agreement provides for
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notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Agent, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Agent shall constitute a
sufficient notification for every purpose hereunder.
Section 1.7. Effect of Headings and Table of Contents. The Article and
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Section headings herein and the
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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
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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
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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
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Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefits or any legal
or equitable right, remedy or claim under this Agreement. The Holders from time
to time shall be beneficiaries of this Agreement and shall be bound by all of
the terms and conditions hereof and of the Securities evidenced by their
Security Certificates by their acceptance of delivery thereof.
Section 1.11. Governing Law. This Agreement and the Securities shall be
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governed by and construed in accordance with the laws of the State of New York.
Section 1.12. Legal Holidays. In any case where any Payment Date, any Early
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Settlement Date or the Final Settlement Date shall not be a Business Day, then
(notwithstanding any other provision of this Agreement or of the Securities)
payment in respect of interest on Treasury Notes or Contract Fees shall not be
made, Purchase Contracts shall not be performed and Early Settlement shall not
be effected on such date, but such payments shall be made, or the Purchase
Contracts shall be performed or Early Settlement effected, as applicable, on the
next succeeding Business Day with the same force and effect as if made on such
Payment Date, Early Settlement Date or Final Settlement Date, as the case may
be; provided, that no interest or Contract Fee shall accrue or be payable by the
Company or any Holder for the period from and after any such Payment Date, Early
Settlement Date or Final Settlement Date, as the case may be.
Section 1.13. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which,
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when so executed, shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument.
Section 1.14. Inspection of Agreement. A copy of this Agreement shall be
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available at all reasonable times at the Corporate Trust Office for inspection
by any Holder.
ARTICLE TWO
Security Certificate Forms
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Section 2.1. Forms of Security Certificates Generally. The Security
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Certificates (including the form of Purchase Contracts forming part of the
Securities evidenced thereby) shall be in substantially the form set forth in
Exhibit A hereto, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities exchange on which the
Securities are listed or Depositary therefor, or as may, consistently herewith,
be determined by the officers of the Company executing such Security
Certificates, as evidenced by their execution of the Security Certificates.
The definitive Security Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing the Security
Certificates, consistent with the provisions of this Agreement, as evidenced by
their execution thereof.
Every Global Security Certificate authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend in substantially the
following form:
THIS SECURITY CERTIFICATE IS A GLOBAL SECURITY CERTIFICATE WITHIN THE
MEANING OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART
FOR A SECURITY CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS
SECURITY CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE
NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT.
14
Section 2.2. Form of Agent's Certificate of Authentication. The form of the
Agent's certificate of authentication of the Securities shall be in
substantially the form set forth on the form of the Security Certificates.
ARTICLE THREE
The Securities
--------------
Section 3.1. Title and Terms; Denominations. The aggregate number of
------------------------------
Securities evidenced by Security Certificates authenticated, executed on behalf
of the Holders and delivered hereunder is limited to (subject to
increase up to a maximum of to the extent the over-allotment option of
the underwriters under the Underwriting Agreement is exercised), except for
Security Certificates authenticated, executed and delivered upon registration of
transfer of, in exchange for, or in lieu of, other Security certificates
pursuant to Section 3.4, 3.5, 3.6, 5.9 or 8.5.
The Security Certificates shall be issuable only in registered form and
only in denominations of a single Security and any integral multiple thereof.
Section 3.2. Rights and Obligations Evidenced by the Security Certificates.
-------------------------------------------------------------
Each Security Certificate shall evidence the number of Securities specified
therein, with each such Security representing the ownership by the Holder
thereof of Treasury Notes with a principal amount equal to the Stated Amount,
subject to the Pledge of such Treasury Notes by such Holder pursuant to the
Pledge Agreement, and the rights and obligations of the Holder under one
Purchase Contract. Prior to the purchase, if any, of shares of Common Stock
under the Purchase Contracts, the Securities shall not entitle the Holders to
any of the rights of a holder of shares of Common Stock, including, without
limitation, the right to vote or receive any dividends or other payments or to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or for the election of directors of the Company or for any other
matter, or any other rights whatsoever as stockholders of the Company.
Section 3.3. Execution, Authentication, Delivery and Dating. Upon the
----------------------------------------------
execution and delivery of this Agreement, and at any time and from time to time
thereafter, the
15
Company may deliver Security Certificates executed by the Company to the Agent
for authentication, execution on behalf of the Holders and delivery, together
with its Issuer Order for authentication of such Security Certificates, and the
Agent in accordance with such Issuer Order shall authenticate, execute on
behalf of the Holder and deliver such Security Certificates.
The Security Certificates shall be executed on behalf of the Company by its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Security Certificates may be manual or
facsimile.
Security Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Security
Certificates or did not hold such offices at the date of such Security
Certificates.
No Purchase Contract underlying a Security evidenced by a Security
Certificate shall be valid until such Security Certificate has been executed on
behalf of the Holder by the manual signature of an authorized signatory of the
Agent, as such Holder's attorney-in-fact. Such signature by an authorized
signatory of the Agent shall be conclusive evidence that the Holder of such
Security Certificate has entered into the Purchase Contracts underlying the
Securities evidenced by such Security Certificate.
Each Security Certificate shall be dated the date of its authentication.
No Security Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on such
Security Certificate a certificate of authentication substantially in the form
provided for herein executed by an authorized signatory of the Agent by manual
signature, and such certificate upon any Security Certificate shall be
conclusive evidence, and the only evidence, that such Security Certificate has
been duly authenticated and delivered hereunder.
Section 3.4. Temporary Security Certificates. Pending the preparation of
-------------------------------
definitive Security Certificates, the Company shall execute and deliver to the
Agent, and the
16
Agent shall authenticate, execute on behalf of the Holders, and deliver, in lieu
of such definitive Security Certificates, temporary Security Certificates which
are in substantially the form set forth in Exhibit A hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by
the rules of any securities exchange on which the Securities are listed, or as
may, consistently herewith, be determined by the officers of the Company
executing such Security Certificates, as evidenced by their execution of the
Security Certificates.
If temporary Security Certificates are issued, the Company will cause
definitive Security Certificates to be prepared without unreasonable delay.
After the preparation of definitive Security Certificates, the temporary
Security Certificates shall be exchangeable for definitive Security Certificates
upon surrender of the temporary Security Certificates at the Corporate Trust
Office, at the expense of the Company and without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Security Certificates,
the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
one or more definitive Security Certificates of authorized denominations and
evidencing a like number of Securities as the temporary Security Certificate or
Security Certificates so surrendered. Until so exchanged, the temporary
Security Certificates shall in all respects evidence the same benefits and the
same obligations with respect to the Securities evidenced thereby as definitive
Security Certificates.
Section 3.5. Registration; Registration of Transfer and Exchange. The
---------------------------------------------------
Agent shall keep at the Corporate Trust Office a register (the register
maintained in such office being herein referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the Agent
shall provide for the registration of Security Certificates and of transfers of
Security Certificates (the Agent, in such capacity, the "Security Registrar").
Upon surrender for registration of transfer of any Security Certificate at
the Corporate Trust Office, the Company shall execute and deliver to the Agent,
and the Agent shall authenticate, execute on behalf of the designated
transferee or transferees, and deliver, in the name of the designated transferee
or transferees, one or more new
17
Security Certificates of any authorized denominations and evidencing a like
number of Securities.
At the option of the Holder, Security Certificates may be exchanged for
other Security Certificates, of any authorized denominations and evidencing a
like number of Securities, upon surrender of the Security Certificates to be
exchanged at the Corporate Trust Office. Whenever any Security Certificates are
so surrendered for exchange, the Company shall execute and deliver to the Agent,
and the Agent shall authenticate, execute on behalf of the Holder, and deliver
the Security Certificates which the Holder making the exchange is entitled to
receive.
All Security Certificates issued upon any registration of transfer or
exchange of a Security Certificate shall evidence the ownership of the same
number of Securities and be entitled to the same benefits and subject to the
same obligations, under this Agreement as the Securities evidenced by the
Security Certificate surrendered upon such registration of transfer or exchange.
Every Security Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Agent) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Agent duly executed, by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Security Certificate, but the Company and the Agent may require
payment from the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Security Certificates, other than any exchanges pursuant
to Sections 3.6 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 Security
Certificate presented or surrendered for registration of transfer or for
exchange on or after the Final Settlement Date or the Termination Date. In lieu
of delivery of a new Security 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 Final Settlement Date has occurred, deliver
18
the shares of Common Stock issuable in respect of the Purchase Contracts
forming a part of the Securities evidenced by such Security Certificate, or (ii)
if a Termination Event shall have occurred prior to the Final Settlement Date,
transfer the principal amount of the Treasury Notes evidenced thereby, in each
case subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Security Certificates:
(1) Each Global Security Certificate authenticated and executed on
behalf of the Holders under this Agreement shall be registered in the name
of the Depositary designated for such Global Security Certificate or a
nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security Certificate shall
constitute a single Security Certificate for all purposes of this
Agreement.
(2) Notwithstanding any other provision in this Agreement, no Global
Security Certificate may be exchanged in whole or in part for Security
Certificates registered, and no transfer of a Global Security Certificate
in whole or in part may be registered, in the name of any Person other than
the Depositary for such Global Security Certificate or a nominee thereof
unless (A) such Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security
Certificate or (ii) has ceased to be a clearing agency registered under the
Exchange Act or (B) there shall have occurred and be continuing a default
by the Company in respect to its obligations under one or more Purchase
Contracts.
(3) Subject to Clause (2) above, any exchange of a Global Security
Certificate for other Security Certificates may be made in whole or in
part, and all Security Certificates issued in exchange for a Global
Security Certificate or any portion thereof shall be registered in such
names as the Depositary for such Global Security Certificate shall direct.
(4) Every Security Certificate authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security Certificate or any portion thereof, whether pursuant to this
19
Section, Section 3.4, 3.6, 5.9 or 8.5 or otherwise, shall be authenticated,
executed on behalf of the Holders and delivered in the form of, and shall
be, a Global Security Certificate, unless such Security Certificate is
registered in the name of a Person other than the Depositary for such
Global Security Certificate or a nominee thereof.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Security Certificates.
-----------------------------------------------------------
If any mutilated Security Certificate is surrendered to the Agent, the Company
shall execute and deliver to the Agent, and the Agent shall authenticate,
execute on behalf of the Holder, and deliver in exchange therefor, a new
Security Certificate, evidencing the same number of Securities and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i) evidence to
their satisfaction of the destruction, loss or theft of any Security
Certificate, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of any of them harmless, then, in the absence of
notice to the Company or the Agent that such Security Certificate has been
acquired by a bona fide purchaser, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or stolen Security
Certificate, a new Security Certificate, evidencing the same number of
Securities and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder, and deliver to the Holder, a
Security Certificate on or after the Final Settlement Date or the Termination
Date. In lieu of delivery of a new Security 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 Final Settlement Date has occurred, deliver the shares of
Common Stock issuable in respect of the Purchase Contracts forming a part of the
Securities evidenced by such Security Certificate, or (ii) if a Termination
Event shall have occurred prior to the Final Settlement Date, transfer the
principal amount of the Treasury Notes evidenced thereby, in each case subject
to the applicable conditions and in accordance with the applicable provisions
of Article Five hereof.
20
Upon the issuance of any new Security Certificate under this Section, the
Company and the Agent may require the payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Agent)
connected therewith.
Every new Security Certificate issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder, whether or
not the destroyed, lost or stolen Security Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of this Agreement equally and proportionately with any
and all other Security Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
settlement of mutilated, destroyed, lost or stolen Security Certificates.
Section 3.7. Persons Deemed Owners. Prior to due presentment of a Security
---------------------
Certificate for registration of transfer, the Company and the Agent, and any
agent of the Company or the Agent, may treat the Person in whose name such
Security Certificate is registered as the owner of the Securities evidenced
thereby, for the purpose of receiving payments of interest on the Treasury
Notes, receiving payments of Contract Fees, performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not the payment of
interest on the Treasury Notes or any Contract Fee payable in respect of the
Purchase Contracts constituting a part of the Securities evidenced thereby shall
be overdue and notwithstanding any notice to the contrary, and neither the
Company nor the Agent, nor any agent of the Company or the Agent, shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security
Certificate, nothing herein shall prevent the Company, the Agent or any agent of
the Company or the Agent, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary (or its nominee), as a
Holder, with respect to such Global Security Certificate or impair, as between
such Depositary and owners of beneficial interests in such Global Security
Certificate, the operation of customary practices governing
21
the exercise of rights of such Depositary (or its nominee) as Holder of such
Global Security Certificate.
Section 3.8. Cancellation. All Security Certificates surrendered for
------------
delivery of shares of Common Stock on or after the Final Settlement Date,
transfer of Treasury Notes after the occurrence of a Termination Event or
pursuant to an Early Settlement or registration of transfer or exchange shall,
if surrendered to any Person other than the Agent, be delivered to the Agent
and, if not already cancelled, shall be promptly cancelled by it. The Company
may at any time deliver to the Agent for cancellation any Security Certificates
previously authenticated, executed and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Security Certificates so
delivered shall, upon Issuer Order, be promptly cancelled by the Agent. No
Security Certificates shall be authenticated, executed on behalf of the Holder
and delivered in lieu of or in exchange for any Security Certificates cancelled
as provided in this Section, except as expressly permitted by this Agreement.
All cancelled Security Certificates held by the Agent shall be disposed of as
directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire any Security
Certificate, such acquisition shall not operate as a cancellation of such
Security Certificate unless and until such Security Certificate is delivered
to the Agent cancelled or for cancellation.
Section 3.9. Securities Not Separable. Notwithstanding anything contained
------------------------
herein or in the Security Certificates to the contrary, for so long as the
Purchase Contract underlying a Security remains in effect such Security shall
not be separable into its constituent parts, and the rights and obligations of
the Holder of such Security in respect of the Treasury Notes and Purchase
Contracts constituting such Security may be acquired, and may be transferred
and exchanged, only as a Security. Other than a Security Certificate evidencing
a Security, no Holder of a Security, or any transferee thereof, shall be
entitled to receive a certificate evidencing the ownership of Treasury Notes or
the rights and obligations of the Holder and the Company under a Purchase
Contract for so long as the Purchase Contract underlying the Security remains
in effect.
22
ARTICLE FOUR
The Treasury Notes
------------------
Section 4.1. Payment of Interest; Interest Rights Preserved. Interest on
----------------------------------------------
any Treasury Note which is paid on any Payment Date shall, subject to receipt
thereof by the Agent from the Collateral Agent as provided by the terms of the
Pledge Agreement, be paid to the Person in whose name the Security Certificate
(or one or more Predecessor Security Certificates) of which such Treasury Note
is a part is registered at the close of business on the Record Date next
preceding such Payment Date.
Each Security Certificate evidencing Treasury Notes delivered under this
Agreement upon registration of transfer of or in exchange for or in lieu of any
other Security Certificate shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by the Treasury Notes underlying such
other Security Certificate.
In the case of any Security with respect to which Early Settlement of the
underlying Purchase Contract is effected on an Early Settlement Date after any
Record Date and on or prior to the next succeeding Payment Date, interest on
the Treasury Notes underlying such Security otherwise payable on such Payment
Date shall be payable on such Payment Date notwithstanding such Early
Settlement, and such interest shall, subject to receipt thereof by the Agent, be
paid to the Person in whose name the Security Certificate (or one or more
Predecessor Security Certificates) is registered at the close of business on
the Record Date. 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, interest on the related Treasury Notes that would otherwise be
payable after the Early Settlement Date shall not be payable hereunder to the
Holder of such Security and the related Treasury Notes shall be transferred to
the Agent, for delivery to such Holder pursuant to Section 5.9(c), together
with the right to all accrued interest thereon.
Section 4.2. Transfer of Treasury Notes Upon Occurrence of Termination
---------------------------------------------------------
Event. Upon the occurrence of a Termination Event and the transfer to the Agent
- -----
of the Treasury Notes underlying such Securities pursuant to the terms of the
Pledge Agreement, the Agent shall request transfer instructions with respect to
such Treasury Notes from each Holder of Securities by written request mailed to
such Holder at his address as it appears in the Security Register, in respect of
the Treasury Notes underlying the
23
Security Certificate held by such Holder. Upon surrender to the Agent of a
Security Certificate with such transfer instructions in proper form for transfer
of the Treasury Notes by Federal Reserve Bank-Wire or other appropriate
procedure, the Agent shall transfer the Treasury Notes evidenced by such
Security Certificate to such Holder in accordance with such instructions. If a
Security Certificate is not duly surrendered to the Agent with appropriate
transfer instructions, the Agent shall hold the Treasury Notes evidenced by such
Security Certificate as custodian for the Holder of such Security Certificate.
Treasury Notes shall be transferred only in denominations of $1,000 and
integral multiples thereof. As promptly as practicable following the occurrence
of a Termination Event, the Agent shall determine the excess of (i) the
aggregate principal amount of Treasury Notes underlying the Outstanding
Securities over (ii) the aggregate principal amount of Treasury Notes in
denominations of $1,000 and integral multiples thereof transferrable to Holders
of record on the date of such Termination Event (such excess being herein
referred to as the "Excess Treasury Notes"). As soon as practicable after
transfer to the Agent of the Treasury Notes underlying the Outstanding
Securities as provided in the Pledge Agreement, the Agent shall sell the Excess
Treasury Notes to or through one or more U.S. Government securities dealers at
then prevailing prices. The Agent shall deduct from the proceeds of such sales
all commissions and other out-of-pocket transaction costs incurred in
connection with such sales of Excess Treasury Notes and, until the net proceeds
of such sale or sales have been distributed to Holders of the Securities, the
Agent shall hold such proceeds in trust for the Holders of Securities. Each
Holder shall be entitled to receive a portion, if any, of such net proceeds in
lieu of Treasury Notes with a principal amount of less than $1,000 determined by
multiplying the aggregate amount of such net proceeds by a fraction, the
numerator of which is the fraction of $1,000 in principal amount of Treasury
Notes to which such Holder would otherwise be entitled (after taking into
account all Securities then held by such Holder) and the denominator of which is
the aggregate principal amount of Excess Treasury Notes.
Section 4.3. Tax Ownership of Treasury Notes. Each Holder of a Security
-------------------------------
Certificate evidencing Securities, each Person that acquires a beneficial
ownership interest in Securities (each a "Beneficial Owner"), by its acceptance
thereof, and the Company agree (i) that such Beneficial
-
24
Owner is the owner for United States federal income tax purposes of the Treasury
Notes constituting a part of the Securities beneficially owned by it and (ii) to
file all United States federal, state and local tax returns and reports and to
prepare all financial accounting reports required to be filed or prepared by it
in a manner consistent therewith (including, in the case of a Beneficial Owner,
reporting such Beneficial Owner's pro rata share of all income, gain or loss
with respect to such Treasury Notes).
ARTICLE FIVE
The Purchase Contracts
----------------------
Section 5.1. Purchase of Shares of Common Stock. Each Purchase Contract
----------------------------------
shall obligate the Holder of the related Security to purchase, and the Company
to sell, on the Final Settlement Date at a price equal to the Stated Amount, a
number of shares of Common Stock equal to the Settlement Rate, unless, on or
prior to the Final 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 greater than $ (the "Threshold Appreciation
Price"), . of a share of Common Stock per Purchase Contract, (b) if the
Applicable Market Value is less than or equal to the Thresh old Appreciation
Price but is greater than the Stated Amount, a fractional share of Common Stock
per Purchase Contract equal to the Stated Amount divided by the Applicable
Market Value (rounded upward or downward to the nearest 1/10,000th of a share)
and (c) if the Applicable Market Value is less than or equal to the Stated
Amount, one share of Common Stock per Purchase Contract, in each case subject to
adjustment as provided in Section 5.6. As provided in Section 5.10, no
fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts.
The "Applicable Market Value" means the average of the Closing Prices per
share of Common Stock on each of the twenty consecutive Trading Days ending on
the last Trading Day immediately preceding the Final Settlement Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on
25
the NYSE on any such date, as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, or if the Common Stock is not so listed on a United States national or
regional securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Stock is not so reported, the last quoted bid price for the Common Stock
in the over-the-counter market as reported by the National Quotation Bureau or
similar organization, or, if such bid price is not available, the market value
of the Common Stock on such date as determined by a nationally recognized
independent investment banking firm retained for this purpose by the Company. A
"Trading Day" means a day on which the Common Stock (A) is not suspended from
trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (B) has traded at least
once on the national or regional securities exchange or association or over-
the-counter market that is the primary market for the trading of the Common
Stock.
Each Holder of a Security Certificate evidencing Securities, by his
acceptance thereof, irrevocably authorizes the Agent to enter into and perform
the related Purchase Contracts on his behalf as his attorney-in-fact, agrees to
be bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions
hereof, irrevocably authorizes the Agent as his attorney-in-fact to enter into
and perform the Pledge Agreement on his behalf as his attorney-in-fact, and
consents to and agrees to be bound by the Pledge of the Treasury Notes
underlying such Security Certificate pursuant to the Pledge Agreement. Each
Holder of a Security, by his acceptance thereof, further irrevocably 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
principal of the Treasury Notes on the Final Settlement Date shall be paid by
the Collateral Agent to the Company in satisfaction of such Holder's
obligations under such Purchase Contract and such Holder shall acquire no
right, title or interest in such payments.
Upon registration of transfer of a Security Certificate evidencing
Purchase Contracts, the transferee shall be bound (without the necessity of any
other action on the part of such transferee), under the terms of this Agreement,
the Purchase Contracts evidenced thereby and the Pledge Agreement, and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by the
26
Security Certificates so transferred. The Company covenants and agrees, and each
Holder of a Security Certificate, by his acceptance thereof, likewise covenants
and agrees, to be bound by the provisions of this paragraph.
Section 5.2. Contract Fees. Subject to Section 5.3, the Company shall pay,
-------------
on each Payment Date, the Contract Fees payable in respect of each Purchase
Contract to the Person in whose name the Security Certificate (or one or more
Predecessor Security Certificates) evidencing such Purchase Contract is
registered at the close of business on the Record Date next preceding such
Payment Date. The Contract Fee will be payable at the office of the Agent in The
City of New York maintained for that purpose or, at the option of the Company,
by check mailed to the address of the Person entitled thereto at such address as
it appears on the Security Register.
Each Security Certificate delivered under this Agreement upon registration
of transfer of or in exchange for or in lieu of any other Security Certificate
shall carry the rights to Contract Fees accrued and unpaid, and to accrue, which
were carried by the Purchase Contracts evidenced by such other Security
Certificate.
In the case of any Security with respect to which Early Settlement of the
underlying Purchase Contract is effected on an Early Settlement Date after any
Record Date and on or prior to the next succeeding Payment Date, Contract Fees
otherwise payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Early Settlement, and such Contract Fees shall be paid to
the Person in whose name the Security Certificate evidencing such Security (or
one or more Predecessor Security Certificates) is registered at the close of
business on such Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Security with respect to
which Early Settlement of the underlying Purchase Contract is effected on an
Early Settlement Date, Contract Fees that would otherwise be payable after the
Early Settlement Date with respect to the Purchase Contract underlying such
Security shall not be payable.
Section 5.3. Deferral of Payment Dates For Contract Fee. The Company shall
------------------------------------------
have the right, at any time prior to the Final Settlement Date, to defer the
payment of any or all of the Contract Fees otherwise payable on any Payment
Date, but only if the Company shall give the Holders and the Agent written
notice of its election to defer such
27
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 Fee to the New York Stock Exchange or other
applicable self-regulatory organization or to Holders of the Securities, but in
any event not less than two Business Days prior to such Record Date. Any
Contract Fees so deferred shall bear additional Contract Fees thereon at the
rate of % per annum (computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as the case may be), compounding on each
succeeding Payment Date, until paid in full. Deferred Contract Fees (and
additional Contract Fees accrued thereon) shall be due on the next succeeding
Payment Date except to the extent that payment is deferred pursuant to this
Section. No Contract Fees may be deferred to a date that is after the Final
Settlement Date or, with respect to any particular Purchase Contract, Early
Settlement thereof.
Section 5.4. Payment of Purchase Price. The purchase price for the shares
-------------------------
of Common Stock purchased pursuant to a Purchase Contract shall be paid by
application of payments received by the Company on the Final Settlement Date
from the Collateral Agent pursuant to the Pledge Agreement in respect of the
principal of the Treasury Notes Pledged to secure the obligations of the
relevant Holder under such Purchase Contract. Such application shall satisfy in
full the obligations under such Purchase Contract of the Holder of the Security
of which such Purchase Contract is a part. The Company shall not be obligated to
issue any shares of Common Stock in respect of a Purchase Contract or deliver
any certificates therefor to the Holder unless it shall have received payment in
full of the aggregate purchase price for the shares of Common Stock to be
purchased thereunder in the manner herein set forth.
Section 5.5. Issuance of Shares of Common Stock. Unless a Termination Event
----------------------------------
shall have occurred on or prior to the Final Settlement Date, on the Final
Settlement Date, upon its receipt of payment in full of the purchase price for
the shares of Common Stock purchased by the Holders pursuant to the foregoing
provisions of this Article, and subject to Section 5.6(b), the Company shall
deposit with the Agent, for the benefit of the Holders of the Outstanding
Securities, one or more certificates representing the shares of Common Stock
registered in the name of the Agent (or its nominee) as custodian for the
Holders (such certificates for shares of Common Stock, together with any
dividends or
28
distributions with respect thereto payable after the Settlement Date, being
hereinafter referred to as the "Final Settlement Fund") to which the Holders are
entitled hereunder. Subject to the foregoing, upon surrender of a Security
Certificate to the Agent on or after the Final Settlement Date, together with
settlement instructions thereon duly completed and executed, the Holder of such
Security Certificate shall be entitled to receive in exchange therefor a
certificate representing that number of whole shares of Common Stock that 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 payable after the
Settlement Date and constituting part of the Final Settlement Fund, but without
any interest thereon, and the Security Certificate so surrendered shall
forthwith be cancelled. Such shares shall be registered in the name of the
Holder or the Holder's designee as specified in the settlement instructions on
the Security Certificate.
If any shares of Common Stock issued in respect of a Purchase Contract are
to be registered to a Person other than the Person in whose name the Security
Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Security Certificate
evidencing such Purchase Contract or has established to the satisfaction of the
Company that such tax either has been paid or is not payable.
Section 5.6. Adjustment of Settlement Rate. (a) Adjustments for Dividends,
-----------------------------
Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other distribution
on any class of Common Stock of the Company in Common Stock, the Settlement Rate
in effect at the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be increased by dividing such Settlement Rate by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such increase to become
effective immediately after the opening
29
of business on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock. The Company will not pay any dividend or
make any distribution on shares of Common Stock held in the treasury of the
Company.
(2) In case the Company shall issue rights, options or warrants to all
holders of its Common Stock (not being available on an equivalent basis to
Holders of the Securities upon settlement of the Purchase Contracts underlying
such Securities) entitling them, for a period expiring within 45 days after the
record date for the determination of stockholders entitled to receive such
rights, options or warrants, to subscribe for or purchase shares of Common Stock
at a price per share less than the Current Market Price per share of the Common
Stock on the date fixed for the determination of stockholders entitled to
receive such rights, options or warrants (other than pursuant to a dividend
reinvestment plan), the Settlement Rate in effect at the opening of business on
the day following the date fixed for such determination shall be increased by
dividing such Settlement Rate by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such
Current Market Price and the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
shall not issue any such rights, options or warrants in respect of shares of
Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a
greater number of shares of
30
Common Stock, the Settlement Rate in effect at the opening of business on the
day following the day upon which such subdivision becomes effective shall be
proportionately increased, and, conversely, in case outstanding shares of Common
Stock shall each be combined into a smaller number of shares of Common Stock,
the Settlement Rate in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may be, to become effective
immediately after the opening of business on the day following the day upon
which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidences of its indebtedness or assets (including
securities, but excluding any rights or warrants referred to in paragraph (2) of
this Section, any dividend or distribution paid exclusively in cash and any
dividend or distribution referred to in paragraph (1) of this Section), the
Settlement Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate in effect immediately prior to the
close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the Current Market Price per share of the Common Stock on the date fixed for
such determination less the then fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Agent) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of Common Stock and the
denominator shall be such Current Market Price per share of the Common Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following the date fixed for the determination of stockholders
entitled to receive such distribution. In any case in which this paragraph (4)
is applicable, paragraph (2) of this Section shall not be applicable.
(5) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock cash (excluding any cash that is distributed in a
Reorganization Event to which Section 5.6(b) applies or as part of a
distribution referred to in paragraph (4) of this Section) in an aggregate
amount that, combined together with (I) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in cash within
the 12 months preceding the date of payment of such distribution
31
and in respect of which no adjustment pursuant to this paragraph (5) or
paragraph (6) of this Section has been made and (II) the aggregate of any cash
plus the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution) of
consideration payable in respect of any tender or exchange offer by the Company
or any of its subsidiaries for all or any portion of the Common Stock concluded
within the 12 months preceding the date of payment of such distribution and in
respect of which no adjustment pursuant to this paragraph (5) or paragraph (6)
of this Section has been made, exceeds 10% of the product of the Current Market
Price per share of the Common Stock on the date for the determination of holders
of shares of Common Stock entitled to receive such distribution times the number
of shares of Common Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date for determination, the
Settlement Rate shall be increased so that the same shall equal the rate
determined by dividing the Settlement Rate in effect immediately prior to the
close of business on the date fixed for determination of the stockholders
entitled to receive such distribution by a fraction (i) the numerator of which
shall be equal to the Current Market Price per share of the Common Stock on the
date fixed for such determination less an amount equal to the quotient of (x)
the excess of such combined amount over such 10% and (y) the number of shares of
Common Stock outstanding on such date for determination and (ii) the denominator
of which shall be equal to the Current Market Price per share of the Common
Stock on such date for determination.
(6) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of the Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to stockholders (based on the acceptance (up
to any maximum specified in the terms of the tender or exchange offer) of
Purchased Shares) of an aggregate consideration having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) that combined together with (I) the
aggregate of the cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution), as of the 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
32
Stock expiring within the 12 months preceding the expiration of such tender or
exchange offer and in respect of which no adjustment pursuant to paragraph (5)
of this Section or this paragraph (6) has been made and (II) the aggregate
amount of any distributions to all holders of the Company's Common Stock made
exclusively in cash within 12 months preceding the 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 10% of the product
of the Current Market Price per share of the Common Stock as of the last time
(the "Expiration Time") tenders could have been made pursuant to such tender or
exchange offer (as it may be amended) times the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time, then, and in
each such case, immediately prior to the opening of business on the day after
the date of the Expiration Time, the Settlement Rate shall be adjusted so that
the same shall equal the rate determined by dividing the Settlement Rate
immediately prior to close of business on the date of the Expiration Time by a
fraction (i) the numerator of which shall be equal to (A) the product of (I) the
Current Market Price per share of the Common Stock on the date of the Expiration
Time and (II) the number of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time less (B) the amount of cash plus the
fair market value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of Purchased Shares, and (ii) the
denominator of which shall be equal to the product of (A) the Current Market
Price per share of the Common Stock as of the Expiration Time and (B) the number
of shares of Common Stock outstanding (including any tendered shares) as of the
Expiration Time less the number of all shares validly tendered and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 5.6(b) applies) shall be deemed to involve
(a) a distribution of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification shall be deemed to
be "the date fixed for the determination of stockholders entitled to receive
such distribution" and the "date fixed for such determination" within the
meaning of paragraph (4) of this Section), and (b) a subdivision or combination,
as the case
33
may be, of the number of shares of Common Stock outstanding immediately prior to
such reclassification into the number of shares of Common Stock outstanding
immediately thereafter (and the effective date of such reclassification shall be
deemed to be "the day upon which such subdivision becomes effective" or "the day
upon which such combination becomes effective", as the case may be, and "the day
upon which such subdivision or combination becomes effective" within the meaning
of paragraph (3) of this Section).
(8) The "Current Market Price" per share of Common Stock on any day means
the average of the daily Closing Prices for the 5 consecutive Trading Days
selected by the Company commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the day in question and the day before the
"ex" date with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "'ex' date", when used
with respect to any issuance or distribution, shall mean the first date on which
the Common Stock trades regular way on such exchange or in such market without
the right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate shall be calculated to the
nearest 1/10,000th of a share of Common Stock (or if there is not a nearest
1/10,000th of a share to the next lower 1/10,000th of a share). No adjustment in
the Settlement Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent therein; provided, however, that
any adjustments which by reason of this subparagraph are not required to be made
shall be carried forward and taken into account in any subsequent adjustment. If
an adjustment is 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
Final Settlement Date. Such adjustment shall be made by multiplying the
Applicable Market Value by a fraction of which the numerator shall be the
Settlement Rate immediately after such adjustment pursuant to paragraph (1),
(2), (3), (4), (5), (6), (7) or (10) of this Section 5.6(a) and the denominator
shall be the Settlement Rate immediately before such adjustment.
(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
34
or diminish any income tax to any holders of shares of Common Stock resulting
from any dividend or distribution of stock or issuance of rights or warrants to
purchase or subscribe for stock or from any event treated as such for income tax
purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization Event. In
the event of (i) any consolidation or merger of the Company, with or into
another Person (other than a merger or consolidation in which the Company is the
continuing corporation and in which the Common Stock outstanding immediately
prior to the merger or consolidation is not exchanged for cash, securities or
other property of the Company or another corporation), (ii) any sale, transfer,
lease or conveyance to another Person of the property of the Company as an
entirety or substantially as an entirety, (iii) any statutory exchange of
securities of the Company with another Person (other than in connection with a
merger or acquisition) or (iv) any liquidation, dissolution or winding up of the
Company (any such event, a "Reorganization Event"), the Settlement Rate will be
adjusted to provide that each Holder of Securities will receive on the Final
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 by a holder of the number of shares of Common Stock
issuable on account of each Purchase Contract if the Final Settlement Date had
occurred immediately prior to such Reorganization Event, assuming such holder of
Common Stock is not a Person with which the Company consolidated or into which
the Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("constituent Person"), or an Affiliate of
a constituent Person, and failed to exercise his rights of election, if any, as
to the kind or amount of securities, cash and other property receivable upon
such Reorganization Event (provided that if the kind or amount of securities,
cash and other property receivable upon such Reorganization Event is not the
same for each share of Common Stock held immediately prior to such
Reorganization Event by other than a constituent Person or an Affiliate thereof
and in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section the kind and amount
of securities, cash and other property receivable upon such Reorganization Event
by each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). In the event of
such a Reorganization Event, the Person formed by such consolidation, merger or
exchange or
35
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 adjusted Settlement Rate in accordance with
Section 5.6 and prepare and transmit to the Agent an Officers' Certificate
setting forth the Settlement Rate, the method of calculation thereof in
reasonable detail, and the facts requiring such adjustment and upon which
such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an event that
permits or requires an adjustment to the Settlement Rate pursuant to
Section 5.6 (or if the Company is not aware of such occurrence, as soon as
practicable after becoming so aware), provide a written notice to the
Holders of the Securities of the occurrence of such event and a statement
in reasonable detail setting forth the method by which the adjustment to
the Settlement Rate was determined and setting forth the adjusted
Settlement Rate.
(b) The Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts
exist which may require any adjustment of the Settlement Rate, or with
respect to the nature or extent or calculation of any such adjustment when
made, or with respect to the method employed in making the same. The Agent
shall not be accountable with respect to the validity or value (or the kind
or amount) of any shares of Common Stock, or of any securities or property,
which may at the time be issued or delivered with respect to any Purchase
Contract; and the Agent makes no representation with respect thereto. The
Agent shall not be responsible for any failure of the Company to issue,
transfer or deliver any shares of
36
Common Stock pursuant to a Purchase Contract or to comply with any of the
duties, responsibilities or covenants of the Company contained in this Article.
Section 5.8. Termination Event; Notice. The Purchase Contracts and the
-------------------------
obligations and rights of the Company and the Holders thereunder, including,
without limitation, the rights of the Holders to receive and the obligation of
the Company to pay any Contract Fee, shall immediately and automatically
terminate, without the necessity of any notice or action by any Holder, the
Agent or the Company, if, on or prior to the Final Settlement Date, a
Termination Event shall have occurred. Upon the occurrence of a Termination
Event, the Company shall give written notice to the Agent, the Collateral Agent
and to the Holders, at their addresses as they appear in the Security Register.
Upon and after the occurrence of a Termination Event, the Securities shall
thereafter represent the right to receive the Treasury Notes forming a part of
such Securities in accordance with the provisions of Section 4.2 and the Pledge
Agreement.
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, any Purchase
Contracts underlying Securities having an aggregate Stated Amount equal to
$ or an integral multiple thereof may be settled early ("Early Settlement")
asprovided herein. In order to exercise the right to effect Early Settlement
with respect to any Purchase Contracts, the Holder of the Security Certificate
evidencing such Purchase Contracts shall deliver such Security Certificate to
the Agent at the Corporate Trust Office duly endorsed for transfer to the
Company or in blank with the form of Election to Settle Early on the reverse
thereof duly completed and accompanied by payment in the form of a certified or
cashier's check payable to the order of the Company in immediately available
funds in 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 minus (ii) the aggregate
amount of Contract Fees, if any, otherwise payable on or prior to the
immediately preceding Payment Date deferred at the option of the Company
pursuant to Section 5.3 and remaining unpaid as of such immediately preceding
Payment Date plus (iii) 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
37
equal to the sum of (x) the Contract Fees payable on such Payment Date with
respect to such Purchase Contracts plus (y) the interest on the related Treasury
Notes payable on such Payment Date. Except as provided in the immediately
preceding sentence and subject to the 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 Fees accrued on such Purchase Contract or on account of
any dividends on the Common Stock issued upon such Early Settlement. If the
foregoing requirements are first satisfied with respect to Purchase Contracts
underlying any Securities at or prior to 5:00 p.m., New York City time, on a
Business Day, such day shall be the "Early Settlement Date" with respect to such
Securities and if such requirements are first satisfied after 5:00 p.m., New
York City time, on a Business Day or on a day that is not a Business Day, the
"Early Settlement Date" with respect to such Securities shall be the next
succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Company shall issue, and the Holder shall be entitled to
receive, a number of shares of Common Stock on account of each Purchase
Contract as to which Early Settlement is effected equal to the Early
Settlement Rate (the "Early Settlement Rate"). The Early Settlement Rate
shall initially be equal to . and shall be adjusted in the same
manner and at the same time as the Settlement Rate is adjusted. As promptly as
practicable after Early Settlement of Purchase Contracts in accordance with the
provisions of this Section 5.9, the Company shall issue and shall deliver to the
Agent at the Corporate Trust Office a certificate or certificates for the full
number of shares of Common Stock issuable upon such Early Settlement together
with payment in lieu of any fraction of a share, as provided in Section 5.10.
(c) The Company shall cause the shares of Common Stock issuable, and
Treasury Notes deliverable, upon Early Settlement of Purchase Contracts to be
issued and delivered, in the case of such shares of Common Stock, and released
from the Pledge by the Collateral Agent and transferred, in the case of such
Treasury Notes, to the Agent, for delivery to the Holder thereof or its
designee, no later than the third Business Day after the applicable Early
Settlement Date.
(d) Upon Early Settlement of any Purchase Contracts, and subject to receipt
thereof from the Company or the Collateral Agent, as applicable, the Agent
shall, in
38
accordance with the instructions provided by the Holder thereof on the
applicable form of Election to Settle Early on the reverse of the Security
Certificate evidencing the related Securities, (i) transfer the Treasury Notes
forming a part of such Securities and (ii) deliver a certificate or certificates
for the full number of shares of Common Stock issuable upon such Early
Settlement together with payment in lieu of any fraction of a share, as provided
in Section 5.10.
(e) In the event that Early Settlement is effected with respect to Purchase
Contracts underlying less than all the Securities evidenced by a Security
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 Security Certificate evidencing the Securities as to
which Early Settlement was not effected.
Section 5.10. No Fractional Shares. No fractional shares or scrip
--------------------
representing fractional shares of Common Stock shall be issued or delivered upon
settlement on the Final Settlement Date or upon Early Settlement of any Purchase
Contracts. If Security Certificates evidencing more than one Purchase Contract
shall be surrendered for settlement at one time by the same Holder, the number
of full shares of Common Stock which shall be delivered upon settlement shall be
computed on the basis of the aggregate number of Purchase Contracts evidenced by
the Security Certificates so surrendered. Instead of any fractional share of
Common Stock which would otherwise be deliverable upon settlement of any
Purchase Contracts on the Final Settlement Date or 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 at
the Closing Price per share on the Trading Day immediately preceding the Final
Settlement Date or the related Early Settlement Date, respectively. The Company
shall provide the Agent from time to time with sufficient funds to permit the
Agent to make all cash payments required by this Section 5.10 in a timely
manner.
Section 5.11. Charges and Taxes. The Company will pay all stock transfer
-----------------
and similar taxes attributable to the initial issuance and delivery of the
shares of Common Stock pursuant to the Purchase Contracts; provided, however,
that the Company shall not be required to pay any such tax or taxes that may be
payable in respect of any exchange of or substitution for a Security Certificate
evidencing a
39
Purchase Contract or any issuance of a share of Common Stock in a name other
than that of the registered Holder of a Security Certificate surrendered in
respect of the Purchase Contracts evidenced thereby, other than in the name of
the Agent, as custodian for such Holder, and the Company shall not be required
to issue or deliver such share certificates or Security Certificates unless or
until the Person or Persons requesting the transfer or issuance thereof shall
have paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
ARTICLE SIX
Remedies
--------
Section 6.1. Unconditional Right of Holders to Receive Contract Fee.
------------------------------------------------------
Notwithstanding any other provision in this Agreement, the Holder of any
Security shall have the right, which is absolute and unconditional (subject to
the right of the Company to defer payment thereof pursuant to Section 5.3), to
receive payment of each installment of the Contract Fee with respect to the
Purchase Contract constituting a part of such Security on the respective Payment
Date for such Security and to purchase Common Stock pursuant to such Purchase
Contract and, in each such case, to institute suit for the enforcement of any
such payment and right to purchase Common Stock, and such rights shall not be
impaired without the consent of such Holder.
Section 6.2. Restoration of Rights and Remedies. If any Holder of
----------------------------------
Securities has instituted any proceeding to enforce any right or remedy under
this Agreement and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of such Holder shall continue
as though no such proceeding had been instituted.
Section 6.3. Rights and Remedies Cumulative. Except as otherwise provided
------------------------------
with respect to the replacement of mutilated, destroyed, lost or stolen Security
Certificates in the last paragraph of Section 3.6, no right or remedy herein
conferred upon or reserved to the Holders of securities is intended to be
exclusive of any other right or
40
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 6.4. Delay or Omission Not Waiver. No delay or omission of any
----------------------------
Holder to exercise any right or remedy shall impair any such right or remedy or
constitute a waiver of any such right. Every right and remedy given by this
Article or by law to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by such Holders.
Section 6.5. Undertaking for Costs. All parties to this Agreement agree,
---------------------
and each Holder of any Security by his acceptance of the Security Certificate
evidencing such Security shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Agreement, or in any suit against the Agent for any action taken,
suffered or omitted by it as Agent, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided that
the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Agent, to any suit instituted by any
Holder of Securities, or group of Holders, holding in the aggregate more than
10% of the Outstanding Securities, or to any suit instituted by any Holder for
the enforcement of the payment of the interest on any Treasury Note or the
Contract Fee on any Purchase Contract on or after the respective Payment Date
therefor constituting a part of the Securities held by such Holder, or for
enforcement of the right to purchase shares of Common Stock under the Purchase
Contracts constituting a part of the Securities held by such Holder.
Section 6.6. 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
41
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Agent or the Holders,
but will suffer and permit the execution of every such power as though no such
law had been enacted.
ARTICLE SEVEN
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 no implied covenants
or obligations shall be read into this Agreement against the Agent; and
(2) in the absence of bad faith or negligence on its part, the Agent may,
with respect to the Securities, conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Agent and conforming to the
requirements of this Agreement, but in the case of any certificates or opinions
which by any provision hereof are specifically required to be furnished to the
Agent, the Agent shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved
that the Agent was negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
42
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of
this Section.
Section 7.2. Notice of Default. Within 90 days after the occurrence of any
-----------------
default by the Company hereunder, of which a Responsible Officer of the Agent
has actual knowledge, the Agent shall transmit by mail to all Holders of
Securities, as their names and addresses appear in the Security Register, notice
of such default hereunder, unless such default shall have been cured or waived.
Section 7.3. Certain Rights of Agent. Subject to the provisions of Section
-----------------------
7.1:
(a) the Agent may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Agent (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate of the Company;
(d) the Agent may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
43
(e) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Agent, in its discretion, may make reasonable further
inquiry or investigation into such facts or matters related to the issuance
of the Securities and the execution, delivery and performance of the
Purchase Contracts as it may see fit, and, if the Agent shall determine to
make such further inquiry or investigation, it shall be entitled to examine
the books, records and promises of the Company, personally or by agent or
attorney; and
(f) the Agent may execute any of its powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and
the Agent shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder.
Section 7.4. Not Responsible for Recitals or Issuance of Securities. The
------------------------------------------------------
recitals contained herein and in the Security Certificates shall be taken as the
statements of the Company and the Agent assumes no responsibility for their
correctness. The Agent makes no representations as to the validity or
sufficiency of this Agreement or of the Securities. 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 Security Registrar or any other agent
-------------------
of the Company, or the Agent, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with the
Company with the same rights it would have if it were not Security Registrar or
such other agent, or the Agent.
Section 7.6. Money Held in Trust. Money held by the Agent in trust
-------------------
hereunder need not be segregated from the other funds except to the extent
required by law. The Agent shall be under no obligation to invest or pay
interest on any money received by it hereunder except as otherwise agreed with
the Company.
Section 7.7. Compensation and Reimbursement. The Company agrees:
------------------------------
44
(1) to pay to the Agent from time to time reasonable compensation for
all services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to reimburse the
Agent upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Agent in accordance with any provision of
this Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Agent and any predecessor Agent for, and to hold
each of them harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
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 a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by Federal or State authority and having its
Corporate Trust Office in the Borough of Manhattan, The City of New York, if
there be such a corporation in the Borough of Manhattan, The City of New York
qualified and eligible under this Article and willing to act on reasonable
terms. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the 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.
-------------------------------------------------
45
(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 3.10(b) of the TIA, as if
the Agent were an indenture trustee under an indenture qualified under the
TIA, after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Agent shall cease to be eligible under Section 7.8 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Agent shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Agent or of its property shall
be appointed or any public officer shall take charge or control of the
Agent or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Agent, or (ii) any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Agent and the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in
46
the office of Agent for any cause, the Company, by a Board Resolution,
shall promptly appoint a successor Agent and shall comply with the
applicable requirements of Section 7.10. If no successor Agent shall have
been so appointed by the Company and accepted appointment in the manner
required by Section 7.10, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to
give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities as their
names and addresses appear in the Security Register. Each notice shall
include the name of the successor Agent and the address of its Corporate
Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Agent, every
such successor Agent so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Agent an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Agent
shall become effective and such successor Agent, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
agencies and duties of the retiring Agent; but, on the request of the
Company or the successor Agent, such retiring Agent shall, upon payment of
its charges, execute and deliver an instrument transferring to such
successor Agent all the rights, powers and trusts of the retiring Agent and
shall duly assign, transfer and deliver to such successor Agent all
property and money held by such retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the time
of such acceptance such successor Agent shall be qualified and eligible
under this Article.
47
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Agent shall be a party, or any corporation succeeding
to all or substantially all the corporate trust business of the Agent, shall be
the successor of the Agent hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
In case any Security 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 Security 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 Security Registrar.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Agent, and furnish to the Agent reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states
that the applicants desire to communicate with other Holders with respect
to their rights under this Agreement or under the Securities and is
accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit, then the Agent shall, within five
Business Days after the receipt of such application, afford such applicants
access to the information preserved at the time by the Agent in accordance
with Section 7.12(a).
(c) Every Holder of Securities, by receiving and holding the Security
Certificates evidencing the same, agrees with the Company and the Agent
that none of the Company, the Agent nor any agent of any of them shall be
held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in
48
accordance with Section 7.12(b), regardless of the source from which such
information was derived.
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 or any Purchase Contract in
respect of the obligations of the Holder of any Security thereunder. The Company
agrees, and each Holder of a Security Certificate, by his acceptance thereof,
shall be deemed to have agreed, that the Agent's execution of the Security
Certificates on behalf of the Holders shall be solely as agent and
attorney-in-fact for the Holders, and that the Agent shall have no obligation to
perform such Purchase Contracts on behalf of the Holders, except to the extent
expressly provided in Article Five hereof.
Section 7.14. Tax Compliance.
--------------
(a) The Agent, on its own behalf and on behalf of the Company, will
comply with all applicable certification, information reporting and
withholding (including "backup" withholding) requirements imposed by
applicable tax laws, regulations or administrative practice with respect to
(i) any payments made with respect to the Securities or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Securities. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of
all amounts required to be withheld to the appropriate taxing authority or
its designated agent.
(b) The Agent shall comply with any 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 to its authorized representative
within a reasonable period of time after receipt of such request.
49
ARTICLE EIGHT
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 Security Certificates; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent; or
(4) to make provision with respect to the rights of Holders pursuant
to the requirements of Section 5.6(b); or
(5) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein, or to
make any other provisions with respect to such matters or questions arising
under this Agreement, provided such action shall not adversely affect the
interests of the Holders.
Section 8.2. Supplemental Agreements with Consent of Holders. With the
--------------------------------------------------
consent of the Holders of not less than 66 2/3% of the Outstanding Securities,
by Act of said Holders delivered to the Company and the Agent, the Company when
authorized by a Board Resolution, and the Agent may enter into an agreement or
agreements supplemental hereto for the purpose of modifying in any manner the
terms of the Securities, or the provisions of this Agreement or the rights of
the Holders in respect of the Securities; provided, however, that no such
supplemental agreement shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change any Payment Date;
(2) change the amount or type of Treasury Notes underlying a Security,
impair the right of the Holder
50
of any Security to receive interest payments on the underlying Treasury
Notes or otherwise adversely affect the Holder's rights in or to such
Treasury Notes;
(3) reduce any Contract Fee or change any place where, or the coin or
currency in which, any Contract Fee is payable;
(4) impair the right to institute suit for the enforcement of any
Purchase Contract;
(5) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the Final
Settlement Date or otherwise adversely affect the Holder's rights under any
Purchase Contract; or
(6) reduce the percentage of the Outstanding Securities the consent of
whose Holders is required for any such supplemental agreement.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 8.3. 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 Security Certificates
theretofore or thereafter authenticated, executed on behalf of the Holders and
delivered hereunder shall be bound thereby.
51
Section 8.5. Reference to Supplemental Agreements. Security Certificates
------------------------------------
authenticated, executed on behalf of the Holders and delivered after the
execution of any supplemental agreement pursuant to this Article may, and shall
if required by the Agent, bear a notation in form approved by the Agent as to
any matter provided for in such supplemental agreement. If the Company shall so
determine, new Security Certificates so modified as to conform, in the opinion
of the Agent and the Company, to any such supplemental agreement may be
prepared and executed by the Company and authenticated, executed on behalf of
the Holders and delivered by the Agent in exchange for Outstanding Security
Certificates.
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey Property
-------------------------------------------------------------
Except Under Certain Conditions. The Company covenants that it will not merge or
- -------------------------------
consolidate with any other Person or sell or convey all or substantially all of
its assets to any Person, except that the Company may merge or consolidate with,
or sell or convey all or substantially all of its assets to, any other Person,
provided that (i) the Company shall be the continuing corporation, or the
successor (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof and
such corporation shall assume the obligations of the Company under the Purchase
Contracts, this Agreement and the Pledge Agreement by one or more supplemental
agreements in form 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 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 or conveyance and upon any such assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Company with the same effect as if it had been named 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 ITT Hartford Group, Inc., any
or all of the Security Certifi-
52
cates 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 Security
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Agent for authentication and execution, and any
Security Certificate evidencing Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Agent for that purpose.
All the Security Certificates so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Security Certificates
theretofore or thereafter issued in accordance with the terms of this Agreement
as though all of such Security Certificates had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale or conveyance such change
in phraseology and form (but not in substance) may be made in the Security
Certificates evidencing Securities thereafter to be issued as may be
appropriate.
Section 9.3. Opinion of Counsel to Agent.
---------------------------
The Agent, subject to Sections 7.1 and 7.3, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article.
ARTICLE TEN
Covenants
---------
Section 10.1. Performance Under Purchase Contracts. The Company covenants
------------------------------------
and agrees for the benefit of the Holders from time to time of the Securities
that it will duly and punctually perform its obligations under the Purchase
Contracts in accordance with the terms of the Purchase Contracts and this
Agreement.
Section 10.2. Maintenance of Office or Agency. The Company will maintain in
-------------------------------
the Borough of Manhattan, The City of New York an office or agency where
Security Certificates may be presented or surrendered for acquisition of shares
of Common Stock upon settlement or Early Settlement
53
and for transfer of Treasury Notes upon occurrence of a Termination Event, where
Security Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Agreement may be served. The Company will give prompt
written notice to the Agent of the location, and any change in the location, of
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Agent with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office, and the Company hereby appoints the
Agent as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where Security Certificates may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will
give prompt written notice to the Agent of any such designation or rescission
and of any change in the location of any such other office or agency. The
Company hereby designates as the place of payment for the Securities the
Corporate Trust Office and appoints the Agent at its Corporate Trust Office as
paying agent in such city.
Section 10.3. Company to Reserve Common Stock. The Company shall at all
---------------------------------
times prior to the Final Settlement Date reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock the full
number of shares of Common Stock issuable against tender of payment in respect
of all Purchase Contracts constituting a part of the Securities evidenced by
Outstanding Security Certificates.
Section 10.4. Covenants as to Common Stock. The Company covenants that all
----------------------------
shares of Common Stock which may be issued against tender of payment in respect
of any Purchase Contract constituting a part of the Outstanding Securities
will, upon issuance, be duly authorized, validly issued, fully paid and
nonassessable.
Section 10.5. Statements of Officers of the Company as to Default. The
---------------------------------------------------
Company will deliver to the Agent, within 120 days after the end of each fiscal
year of
54
the Company ending after the date hereof, an Officers' Certificate, stating
whether or not to the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms, provisions and
conditions hereof, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ITT HARTFORD GROUP, INC.
Attested by _________ By: _______________________________
[NAME OF PURCHASE CONTRACT AGENT],
as Agent
Attested by _________ By: _______________________________
55
EXHIBIT A
ITT HARTFORD GROUP, INC.
% AUTOMATIC COMMON EXCHANGE SECURITIES
(STATED AMOUNT $ PER SECURITY)
No. Securities
This Security Certificate certifies that is the registered Holder of the
number of Securities set forth above. Each Security represents ownership by the
Holder of % United States Treasury Notes due , ("Treasury Notes") with a
principal amount equal to the Stated Amount, subject to the Pledge of such
Treasury Notes by such Holder pursuant to the Pledge Agreement, and the rights
and obligations of the Holder under one Purchase Contract with ITT Hartford
Group, Inc., a Delaware corporation (the "Company").
Pursuant to the Pledge Agreement, the Treasury Notes constituting part
of each Security evidenced hereby have been Pledged to the Collateral Agent to
secure the obligations of the Holder under the Purchase Contract constituting
part of such Security.
The Pledge Agreement provides that all payments of principal of, or
interest on, any Treasury Notes constituting part of the Securities received by
the Collateral Agent shall be paid by the Collateral Agent by wire transfer in
same day funds no later than 2:00 p.m., New York City time, on the Business Day
such payment is received by the Collateral Agent (provided that in the event
such payment is received by the Collateral Agent on a day that is not a Business
Day or after 2:00 p.m., New York City time, on a Business Day, then such payment
shall be no later than 9:00 a.m., New York City time, on the next succeeding
Business Day) (i) in the case of (A) interest payments and (B) any principal
payments with respect to any Treasury Notes that have been released from the
Pledge pursuant to the Pledge Agreement, to the Agent to the account designated
by it for such purpose and (ii) in the case of principal payments on any Pledged
Treasury Notes (as defined in the Pledge Agreement), to the Company, in full
satisfaction of the respective obligations of the Holders of the Securities of
which such Pledged Treasury Securities are a part under the Purchase Contracts
forming a part of such Securities. Interest on any Treasury Note forming part of
a Security evidenced hereby which is paid on any or , commencing
, 199 (a "Payment Date"), shall, subject to receipt thereof by
the Agent from the Collateral Agent, be paid to the Person in whose name this
Security Certificate (or a Predecessor Security Certificate) is
56
registered at the close of business on the Record Date next preceding such
Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder
of this Security Certificate to purchase, and the Company to sell, on
, (the "Final Settlement Date"), at a price equal to $
(the "Stated Amount"), a number of shares of Common Stock, par value
$.01 per share ("Common Stock"), of the Company, equal to the Settlement Rate,
unless on or prior to the Final 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, all as provided in the Purchase Contract Agreement
and more fully described on the reverse hereof. The purchase price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby, if not paid earlier, shall be paid on the Final Settlement Date by
application of payment received in respect of the principal of the Treasury
Notes Pledged to secure the obligations under such Purchase Contract of the
Holder of the Security of which such Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of
each Purchase Contract forming part of a Security evidenced hereby a fee (the
"Contract Fee") equal to % per annum of the Stated Amount, from , 199 ,
computed on the basis of the actual number of days elapsed in a year of 365 or
366 days, as the case may be, subject to deferral at the option of the Company
as provided in the Purchase Contract Agreement and more fully described on the
reverse hereof; except that on the initial Payment Date the Contract Fee shall
be reduced by an amount equal to accrued interest to , 199 , on the
Treasury Note constituting a part of this Security. Such Contract Fee shall be
payable to the Person in whose name this Security Certificate (or a Predecessor
Security Certificate) is registered at the close of business on the Record Date
next preceding such Payment Date.
The Contract Fee will be payable at the office of the Agent in
The City of New York or, at the option of the Company, by check mailed to the
address of the Person entitled thereto as such address appears on the Security
Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions
57
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Agent by manual signature, this Security Certificate shall not
be entitled to any benefit under the Pledge Agreement or the Purchase Contract
Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
ITT HARTFORD GROUP, INC.
By: _____________________________
Attest: _______________
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under
the Purchase Contracts evidenced
hereby)
By: [NAME OF PURCHASE CONTRACT
AGENT] as Attorney-in-Fact of such
Holder
By: _______________________________
Dated:
This is one of the Security Certificates referred to in the within
mentioned Purchase Contract Agreement.
[NAME OF PURCHASE CONTRACT AGENT],
as Agent
By: __________________
58
[Form of Reverse of Security Certificate]
Each Purchase Contract evidenced hereby is governed by a
Purchase Contract Agreement, dated as of , 199 (the "Purchase Contract
Agreement"), between the Company and [Name of Purchase Contract Agent], as Agent
(herein called the "Agent"), to which Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Agent, the Company, and the Holders and of the terms upon
which the Security Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder
of this Security Certificate to purchase, and the Company to sell, on the Final
Settlement Date at a price equal to the Stated Amount, a number of shares of
Common Stock of the Company equal to the Settlement Rate, unless, on or prior to
the Final 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 greater than $ (the "Threshold Appreciation Price"),
. of a share of Common Stock per Purchase Contract, (b) if the Applicable
Market Value is less than or equal to the Threshold Appreciation Price but is
greater than the Stated Amount, a fractional share of Common Stock per Purchase
Contract equal to the Stated Amount divided by the Applicable Market Value and
(c) if the Applicable Market Amount is less than or equal to the Stated Amount,
one share of Common Stock per Purchase Contract, in each case subject to
adjustment as provided in the Purchase Contract. No fractional shares of Common
Stock will be issued upon settlement of Purchase Contracts, as provided in the
Purchase Contract Agreement.
The "Applicable Market Value" means the average of the Closing
Prices per share of Common Stock on each of the twenty consecutive Trading Days
ending on the last Trading Day immediately preceding the Final Settlement Date.
The "Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed,
59
or if the Common Stock is not so listed on a United States national or regional
securities exchange, as reported by The Nasdaq Stock Market, or, if the Common
Stock is not so reported, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company. A "Trading
Day" means a day on which the Common Stock (A) is not suspended from trading on
any national or regional securities exchange or association or over-the-counter
market at the close of business and (B) has traded at least once on the national
or regional securities exchange or association or over-the-counter market that
is the primary market for the trading of the Common Stock.
The purchase price for the shares of Common Stock purchased
pursuant to each Purchase Contract shall be paid by application of payments
received by the Company on the Final Settlement Date from the Collateral Agent
pursuant to the Pledge Agreement in respect of the principal of the Treasury
Notes Pledged to secure the obligations of the relevant Holder under such
Purchase Contract. The Company shall not be obligated to issue any shares of
Common Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment in full of the
aggregate purchase price for the shares of Common Stock to be purchased
thereunder in the manner herein set forth.
Subject to the next succeeding paragraph, the Company shall
pay, on each Payment Date, the Contract Fee payable in respect of each Purchase
Contract to the Person in whose name the Security Certificate evidencing such
Purchase Contract is registered at the close of business on the Record Date next
preceding such Payment Date. Contract Fees will be payable at the office of the
Agent in The City of New York or, at the option of the Company, by check mailed
to the address of the Person entitled thereto at such address as it appears on
the Security Register.
The Company shall have the right, at any time prior to the
Final Settlement Date, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date, but only if the Company shall give the
Holders and the Agent written notice of its election to defer such payment
(specifying the amount to be deferred) as provided
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in the Purchase Contract Agreement. Any Contract Fees so deferred shall bear
additional Contract Fees thereon at the rate of % per annum (computed on the
basis of the actual number of days elapsed in a year of 365 or 366 days, as the
case may be), compounding on each succeeding Payment Date, until paid in full.
Deferred Contract Fees (and additional Contract Fees accrued thereon) shall be
due on the next succeeding Payment Date except to the extent that payment is
deferred pursuant to the Purchase Contract Agreement. No Contract Fees may be
deferred to a date that is after the Final Settlement Date.
The Purchase Contracts and the obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights of
the Holders to receive and the obligation of the Company to pay any Contract
Fee, shall immediately and automatically terminate, without the necessity of any
notice or action by any Holder, the Agent or the Company, if, on or prior to the
Final Settlement Date, a 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 Security
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Treasury Notes from the Pledge. The Securities shall
thereafter represent the right to receive the Treasury Notes forming a part of
such Securities in accordance with the provisions of the Purchase Contract
Agreement and the Pledge Agreement.
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
$ 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 Security Certificate, the Holder of this Security
Certificate shall deliver this Security Certificate to the Agent at the
Corporate Trust office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early set forth below duly completed and
accompanied by payment in the form of a certified or cashier's check payable to
the order of the Company in immediately available funds in 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 minus (ii) the
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aggregate amount of Contract Fees, if any, otherwise payable on or prior to the
immediately preceding Payment Date deferred at the option of the Company
pursuant to the Purchase Contract Agreement and remaining unpaid as of such
immediately preceding Payment Date plus (iii) 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 Fees payable
on such Payment Date with respect to such Purchase Contracts plus (y) the
interest with respect to the related Treasury Notes payable on such Payment
Date. Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Treasury Notes underlying such Securities shall be released from
the Pledge as provided in the Pledge Agreement and the Holder shall be entitled
to receive, a number of shares of Common Stock on account of each Purchase
Contract forming part of a Security as to which Early Settlement is effected
equal to the Early Settlement Rate. The Early Settlement Rate shall initially be
equal to . 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.
The Security Certificates are issuable only in registered form
and only in denominations of a single Security and any integral multiple
thereof. The transfer of any Security Certificate will be registered and
Security Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Security Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents permitted by the
Purchase Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. For so long as the Purchase Contract underlying
a Security remains in effect, such Security shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Security
in respect of the Treasury Notes and Purchase Contract constituting such
Security may be transferred and exchanged only as a Security.
Upon registration of transfer of this Security Certificate,
the transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the
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Purchase Contract Agreement and the Purchase Contracts evidenced hereby and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by this Security Certificate. The Company covenants and agrees, and
the Holder, by his acceptance hereof, likewise covenants and agrees, to be bound
by the provisions of this paragraph.
Each of the Holder of this Security Certificate and each
person that acquires a beneficial ownership interest in Securities evidenced
hereby (each a "Beneficial Owner"), by its acceptance hereof or thereof, as the
case may be, agrees (i) that such Beneficial Owner is the owner for United
States federal income tax purposes of the Treasury Notes constituting a part of
the Securities beneficially owned by it and (ii) to file all United States
federal, state and local tax returns and reports and to prepare all financial
accounting reports required to be filed or prepared by it in a manner consistent
therewith (including, in the case of a Beneficial Owner, reporting such
Beneficial Owner's pro rata share of all income, gain or loss with respect to
such Treasury Notes).
The Holder of this Security Certificate, by his acceptance
hereof, irrevocably authorizes the Agent to enter into and perform the related
Purchase Contracts forming part of the Securities evidenced hereby on his behalf
as his attorney-in-fact, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, irrevocably
authorizes the Agent to enter into and perform the Pledge Agreement on his
behalf as his attorney-in-fact, and consents to the Pledge of the Treasury Notes
underlying this Security Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect of principal of the Treasury
Notes on the Final Settlement Date shall be paid by the Collateral Agent to the
Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
payments.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of at least 66
2/3% of the Outstanding Securities.
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All terms used herein which are defined in the Purchase Contract
Agreement have the meanings set forth therein.
The Purchase Contracts shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York.
The Company, the Agent and any agent of the Company or the
Agent may treat the Person in whose name this Security Certificate is registered
as the owner of the Securities evidenced hereby for the purpose of receiving
payments of interest on the Treasury Notes, receiving payments of Contract Fees,
performance of the Purchase Contracts and for all other purposes whatsoever,
whether or not any payments in respect thereof be overdue and notwithstanding
any notice to the contrary, and neither the Company, the Agent nor any such
agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Agent.
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SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Final Settlement Date of the
Purchase Contracts underlying the number of Securities evidenced by this
Security Certificate be registered in the name of, and delivered, together with
a check in payment for any fractional share, to the undersigned at the address
indi cated below unless a different name and address have been indicated below.
If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated: __________________ Signature ____________________
If shares are to be REGISTERED HOLDER
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
65
ELECTION TO SETTLE EARLY
The undersigned Holder of this Security 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 Securities evidenced by this Security Certificate
specified below. The option to effect Early Settlement may be exercised only
with respect to Purchase Contracts underlying Securities with an aggregate
Stated Amount equal to $ or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Security Certificate representing any 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. Treasury Notes 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
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Number of Securities evidenced hereby as to which Early
Settlement of the related Purchase Contracts is being elected:
If shares or Security REGISTERED HOLDER
Certificates are to be
registered in the name
of and delivered to and
Treasury Notes are to be
transferred to a Person
other than the Holder,
please print such Person's
name and address:
Please print name and
address of Registered
Holder:
------------------------------
Name
- ------------------------ ------------------------------
Name Address
- ------------------------ ------------------------------
Address
- ------------------------ ------------------------------
Social Security or other ------------------------------
Taxpayer Identification
Number, if any
-----------------
Transfer Instructions for Treasury Notes Transferable Upon
Early Settlement or a Termination Event:
-----------------------------------
-----------------------------------
-----------------------------------
67