1 EXHIBIT 4.5 ====================================================== XO COMMUNICATIONS, INC. AND --------------------------------, as Purchase Contract Agent ---------------- PURCHASE CONTRACT AGREEMENT ---------------- Dated as of ______ __, 200_ ====================================================== 2 TABLE OF CONTENTS Page ---- RECITALS.................................................................................................1 ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 101. Definitions................................................................................1 Section 102. Form of Documents Delivered to Purchase Contract Agent.....................................7 Section 103. Acts of Holders; Record Dates..............................................................8 Section 104. Notices, etc. to Purchase Contract Agent and the Company...................................9 Section 105. Notice to Holders; Waiver.................................................................10 Section 106. Effect of Headings and Table of Contents..................................................10 Section 107. Successors and Assigns....................................................................10 Section 108. Separability Clause.......................................................................10 Section 109. Benefits of Agreement.....................................................................10 Section 110. Governing Law.............................................................................11 Section 111. Legal Holidays............................................................................11 Section 112. Counterparts..............................................................................11 Section 113. Inspection of Agreement...................................................................11 ARTICLE TWO PURCHASE CONTRACT CERTIFICATE FORMS Section 201. Forms of Unit Certificates Generally......................................................11 Section 202. Form of Purchase Contract Agent's Certificate of Authentication...........................12 ARTICLE THREE THE UNITS Section 301. Title and Terms; Denominations............................................................12 Section 302. Rights and Obligations Evidenced by the Unit Certificates.................................13 Section 303. Execution, Authentication, Delivery and Dating............................................13 Section 304. Temporary Unit Certificates...............................................................14 Section 305. Registration; Registration of Transfer and Exchange.......................................14 Section 306. Mutilated, Destroyed, Lost and Stolen Unit Certificates...................................16 Section 307. Persons Deemed Owners.....................................................................17 Section 308. Cancellation..............................................................................18 Section 309. Payments on the Units.....................................................................18 ARTICLE FOUR THE PLEDGED SECURITIES Section 401. Payments on the Pledged Securities........................................................19 Section 402. Transfer of Pledged Securities Upon Occurrence of Termination Event.......................19 -i- 3 Section 403. Transfer of Pledged Securities Upon Early Settlement and Merger Early Settlement..........20 ARTICLE FIVE THE PURCHASE CONTRACTS Section 501. Purchase of Shares........................................................................20 Section 502. Contract Fees.............................................................................22 Section 503. Deferral of Payment Dates for Contract Fees...............................................23 Section 504. Payment of Purchase Price.................................................................23 Section 505. Issuance of the Shares....................................................................23 [Section 506. Adjustment of Settlement Rate.............................................................24 [Section 507. Notice of Adjustments and Certain Other Events............................................29 Section 508. No Fractional Shares......................................................................29 Section 509. Charges and Taxes.........................................................................30 Section 510. Termination Event; Notice.................................................................30 [Section 511. Early Settlement..........................................................................30 [Section 512. Early Settlement Upon Merger..............................................................32 ARTICLE SIX REMEDIES Section 601. Unconditional Rights of Holders...........................................................33 Section 602. Restoration of Rights and Remedies........................................................33 Section 603. Rights and Remedies Cumulative............................................................34 Section 604. Delay or Omission Not Waiver..............................................................34 Section 605. Undertaking for Costs.....................................................................34 Section 606. Waiver of Stay or Extension Laws..........................................................35 ARTICLE SEVEN THE PURCHASE CONTRACT AGENT Section 701. Certain Duties and Responsibilities.......................................................35 Section 702. Notice of Default.........................................................................36 Section 703. Certain Rights of Purchase Contract Agent.................................................36 Section 704. Not Responsible for Recitals or Issuance of Units.........................................37 Section 705. May Hold Units............................................................................37 Section 706. Money Held in Trust.......................................................................37 Section 707. Compensation and Reimbursement............................................................37 Section 708. Purchase Contract Agent Required; Eligibility.............................................38 Section 709. Resignation and Removal; Appointment of Successor.........................................38 Section 710. Acceptance of Appointment by Successor....................................................40 Section 711. Merger, Conversion, Consolidation or Succession to Business...............................40 Section 712. Preservation of Information; Communications to Holders....................................41 Section 713. No Obligations of Purchase Contract Agent.................................................41 Section 714. Tax Compliance............................................................................41 -ii- 4 ARTICLE EIGHT SUPPLEMENTAL AGREEMENTS Section 801. Supplemental Agreements Without Consent of Holders........................................42 Section 802. Supplemental Agreements With Consent of Holders...........................................42 Section 803. Execution of Supplemental Agreements......................................................44 Section 804. Effect of Supplemental Agreements.........................................................44 Section 805. Reference to Supplemental Agreements......................................................44 ARTICLE NINE CONSOLIDATION, MERGER, SALE OR CONVEYANCE Section 901. Covenant Not to Merge, Consolidate, Sell or Convey PropertyExcept Under Certain Conditions..................................................................44 Section 902. Rights and Duties of Successor Corporation................................................45 Section 903. Opinion of Counsel to Purchase Contract Agent.............................................45 ARTICLE TEN COVENANTS Section 1001. Performance Under Purchase Contracts.....................................................46 Section 1002. Maintenance of Office or Agency..........................................................46 Section 1003. Company to Reserve Shares................................................................46 Section 1004. Covenants as to Shares...................................................................47 Section 1005. Statements of Officers of the Company as to Default......................................47 -iii- 5 Page ---- TESTIMONIUM.............................................................................................50 SIGNATURES..............................................................................................50 EXHIBIT A Form of Unit Certificate EXHIBIT B Form of Pledge Agreement -iv- 6 PURCHASE CONTRACT AGREEMENT, dated as of _____ __, 200_, between XO COMMUNICATIONS, INC., a Delaware corporation (the "Company"), and________________, a __________ corporation, acting as Purchase Contract Agent for the Holders of Units from time to time (the "Purchase Contract Agent"). RECITALS The Company has duly authorized the execution and delivery of this Agreement and the Unit Certificates evidencing the Units. All things necessary to make the Purchase Contracts, when the Unit Certificates are executed by the Company and authenticated, executed on behalf of the Holders and delivered by the Purchase Contract Agent, as in this Agreement provided, the valid obligations of the Company and the Holders, and to constitute these presents a valid agreement of the Company and the Holders, in accordance with its terms, have been done. WITNESSETH: For and in consideration of the premises and the entering into of the Purchase Contracts by the Holders thereof, it is mutually agreed as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 101. Definitions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; and (b) 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" has the meaning specified in Section 103. "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 7 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. "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. "Average Trading Price" has the meaning specified in Section 501. "Board of Directors" means the board of directors of the Company or a duly authorized committee of that board. "Board Resolution" means one or more resolutions of the Board of Directors, a copy of which has been certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Purchase Contract Agent. "Business Day" means any day other than Saturday, Sunday or any other day on which banking institutions in The City of New York are authorized or obligated by law or executive order to be closed. "Cash Merger" has the meaning specified in Section 512. "Closing Price" has the meaning specified in Section 501. "Collateral Agent" means _____________, as Collateral Agent under the Pledge Agreement, until a successor Collateral Agent shall have become such pursuant to the applicable provisions of the Pledge Agreement, and thereafter "Collateral Agent" shall mean the Person who is then the Collateral Agent thereunder. "Collateral Substitution" has the meaning specified in Section 405. "Company" means the Person designated 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, with respect to each Purchase Contract, a fee payable by the Company, accruing on the Stated Amount, accruing from and including the date of first issuance of any Units to but excluding the Stock Purchase Date and payable quarterly in arrears on each Quarterly Payment Date to and including the Stock Purchase Date at a rate per annum equal to the Contract Fee Rate (and computed on -2- 8 the basis of a 360-day year of twelve 30-day months), plus any additional fees accrued thereon pursuant to Section 503. "Contract Fee Rate" means ____%. "Corporate Trust Office" means the principal office of the Purchase Contract Agent, at which at any particular time its corporate trust business shall be administered, which office at the date hereof is located at _______________. "Current Market Price" has the meaning specified in Section 506(a)(8). "Depositary" means a clearing agency registered under the Exchange Act that is designated to act as Depositary for Global Units as contemplated by Section 305. "Early Settlement" has the meaning set forth in Section 511. "Early Settlement Amount" has the meaning set forth in Section 511. "Early Settlement Date" has the meaning set forth in Section 511. "Early Settlement Rate" has the meaning set forth in Section 511. "Exchange Act" means the Securities Exchange Act of 1934 or any statute successor thereto, in each case as amended from time to time. "Expiration Date" has the meaning specified in Section 103. "Global Unit Certificate" means a Unit Certificate that evidences all or part of the Units and is registered in the name of the Depositary or a nominee thereof. "Guarantees" means the Company's guarantees of the Notes. "Holder" means a Person in whose name a Unit Certificate is registered in the Unit Register; "Holder", when used with respect to any particular Unit Certificate (or Unit), means a Person in whose name such Unit Certificate (or the Unit Certificate evidencing such Unit) is registered in the relevant Unit Register. "Indenture" means the Indenture, dated as of __________ __, ____, among the Company and ______________, as Trustee, as the same may be amended or supplemented from time to time with respect to the terms of the Notes in accordance with the terms thereof. "Issuer Order" or "Issuer Request" means a written order or request signed in the name of the Company by its Chairman of the Board, its Chief Executive Officer, its President, its Chief Financial Officer, a Vice Chairman or a Vice President, and by its -3- 9 Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or an Assistant Secretary, and delivered to the Purchase Contract Agent. "Merger Early Settlement" has the meaning set forth in Section 512. "Merger Early Settlement Date" has the meaning set forth in Section 512. "NASDAQ" has the meaning specified in Section 501. "Notes" means the ______________. "Officers' Certificate" means a certificate signed by the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, a Vice Chairman or a Vice President, and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company and delivered to the Purchase Contract Agent. "Opinion of Counsel" means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company. "Outstanding Units" means, as of the date of determination, all Units evidenced by then Outstanding Unit Certificates, except, on or after the Termination Date or Stock Purchase Date, Units for which the underlying Pledged Securities or the Common Stock purchasable upon settlement of the underlying Purchase Contracts, as the case may be, have been theretofore deposited with the Purchase Contract Agent in trust for the Holders of such Units; provided, however, that in determining whether the Holders of the requisite number of Units have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Units owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be outstanding, except that, in determining whether the Purchase Contract Agent shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Units which the Purchase Contract Agent actually knows to be so owned shall be so disregarded. Units so owned which have been pledged in good faith may be regarded as Outstanding Units if the pledgee establishes to the satisfaction of the Purchase Contract Agent the pledgee's right so to act with respect to such Units and that the pledgee is not the Company or any Affiliate of the Company. "Outstanding Unit Certificates" means, as of the date of determination, all Unit Certificates theretofore authenticated, executed and delivered pursuant to this Agreement, except: (a) Unit Certificates theretofore canceled by the Purchase Contract Agent or delivered to the Purchase Contract Agent for cancellation; and (b) Unit Certificates in exchange for or in lieu of which other Unit Certificates have been authenticated and delivered pursuant to this Agreement, other than any such Unit Certificate in respect of which there shall have been presented to the Purchase Contract Agent proof satisfactory to it that such Unit Certificate is held by a bona fide purchaser in whose hands the Units evidenced by such Unit Certificate are valid obligations of the Company. -4- 10 "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 of the Pledged Securities under the Pledge Agreement. "Pledge Agreement" means the Pledge Agreement, dated as of the date hereof, among the Company, the Collateral Agent and the Purchase Contract Agent, in its capacity as Purchase Contract Agent and as attorney-in-fact for the Holders from time to time of the Units, the form of which is attached hereto as Exhibit B, as the same may be amended from time to time in accordance with the terms hereof and thereof. "Pledged Securities" has the meaning specified in the Pledge Agreement. "Predecessor Unit Certificate" of any particular Unit Certificate means every previous Unit Certificate evidencing all or a portion of the rights and obligations of the Holder under the Units evidenced thereby; and, for the purposes of this definition, any Unit Certificate authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Unit Certificate shall be deemed to evidence the same rights and obligations of the Holder as the mutilated, destroyed, lost or stolen Unit Certificate. "Principal Agreements" means this Agreement (including the obligations under the Purchase Contracts) and the Pledge Agreement. "Purchase Contract" means the obligation of the Company to sell and the Holder of the related Unit to purchase Shares on the terms and subject to the conditions set forth in Article Five hereof. "Purchase Contract Agent" means the Person named as the "Purchase Contract Agent" in the first paragraph of this Agreement until a successor Purchase Contract Agent shall have accepted an appointment as a successor Purchase Contract Agent pursuant to the applicable provisions of this Agreement, and thereafter "Purchase Contract Agent" shall mean the Person who is then the Purchase Contract Agent hereunder. "Purchase Contract Settlement Fund" has the meaning specified in Section 505. -5- 11 "Quarterly Payment Date" means each _________, __________, __________ and __________ commencing _______ __, ____. "Record Date", when used with respect to any payment date, means the Business Day next preceding such payment date. "Reorganization Event" has the meaning specified in Section 506(b). "Responsible Officer", when used with respect to the Purchase Contract Agent, means any officer of the Purchase Contract Agent (a) assigned by the Purchase Contract Agent to administer corporate trust matters and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and (b) who shall have direct responsibility for the administration of this Agreement. "Senior Indebtedness" means indebtedness of the Company of any kind unless the instrument under which such indebtedness is incurred expressly provides that it is on parity with or subordinated in right of payment to the Contract Fees. "Settlement Rate" has the meaning specified in Section 501. "Shares" means the [Class A Common Stock, par value $.02 per share,] [Preferred Stock, Series __, par value $.01 per share] of the Company. "Stated Amount" means $______ per Unit. "Stock Purchase Date" means ________ __, ____ or such earlier date on which the Purchase Contract may be settled pursuant to Section 511 or Section 512. "Termination Date" means the date, if any, on which a Termination Event occurs. "Termination Event" means the occurrence of any of the following events at any time on or prior to the Stock Purchase Date: (a) the entry by a court having jurisdiction in the premises of (1) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable bankruptcy law or (2) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable bankruptcy law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of substantially all of the property of the Company, or ordering the winding up or liquidation of the affairs of the Company, and the continuance of any decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or (b) the commencement by the Company of a voluntary case or proceeding under any applicable bankruptcy law, or -6- 12 of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable bankruptcy law, or to the commencement of any bankruptcy or insolvency case or proceeding against the Company, or the filing by the Company of a petition or answer or consent seeking reorganization or relief under any applicable bankruptcy law, or the consent by the Company to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or of substantially all or the property of the Company, or the making by the Company of an assignment for the benefit of creditors, or the admission by the Company in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action. "Threshold Appreciation Price" means $____ per Share. "TIA" means the Trust Indenture Act of 1939 or any statute successor thereto, in each case as amended from time to time. "Trading Day" has the meaning specified in Section 501. "Underwriting Agreement" means the Underwriting Agreement dated _______ __, ____, among the Company, __________ and ____________, as representatives of the Underwriters named therein. "Unit" means the rights to purchase Shares under a Purchase Contract, together with ownership of the Notes or other Pledged Securities pledged to secure the obligations owed to the Company under such Purchase Contract, and subject to the pledge arrangements securing the foregoing obligations. The Purchase Contracts and/or Pledged Securities constituting a part of any Units are sometimes referred to herein as "underlying" such Units and are sometimes herein said to "underlie" such Units. "Unit Certificate" means a certificate evidencing the rights and obligations of a Holder in respect of the number of Units, as the case may be, specified on such certificate. "Unit Register" and "Unit Registrar" have the respective meanings specified in Section 305. "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 102. Form of Documents Delivered to Purchase Contract Agent. -7- 13 In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Agreement, they may, but need not, be consolidated and form one instrument. Section 103. Acts of Holders; Record Dates. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Purchase Contract 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 701) conclusive in favor of the Purchase Contract 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 -8- 14 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 Purchase Contract Agent deems sufficient. (c) The ownership of Units shall be proved by the Unit Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Unit shall bind every future Holder of the same Unit and the Holder of every Unit Certificate evidencing such Unit 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 Purchase Contract Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Unit Certificate. (e) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Units entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Agreement to be given, made or taken by Holders of Units. If any record date is set pursuant to this paragraph, the Holders of Outstanding Units 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 Units on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite number of Outstanding Units on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Purchase Contract Agent in writing and to each Holder of Units in the manner set forth in Section 105. 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 Purchase Contract Agent in writing, and to each Holder of Units in the manner set forth in Section 105, 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. -9- 15 Section 104. Notices, etc. to Purchase Contract Agent and the Company. Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Agreement to be made upon, given or furnished to, or filed with, (a) the Purchase Contract Agent by any Holder or by the Company shall be (unless otherwise herein expressly provided) made, given, furnished or filed in writing and personally delivered or mailed, first-class postage prepaid, or sent by facsimile to the Purchase Contract Agent's Corporate Trust Office, Attention: ____________, or at any other address previously furnished in writing by the Purchase Contract Agent to the Holders and the Company, and shall be deemed to have been duly given upon receipt by the Purchase Contract Agent, or (b) the Company by the Purchase Contract 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 11111 Sunset Hills Drive, Reston, Virginia 20190, Attention: _________, or at any other address previously furnished in writing by the Company to the Purchase Contract Agent. Section 105. Notice to Holders; Waiver. Except as otherwise provided, where this Agreement provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Unit 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 Purchase Contract 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 Purchase Contract Agent shall constitute a sufficient notification for every purpose hereunder. Section 106. Effect of Headings and Table of Contents. -10- 16 The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 107. Successors and Assigns. All covenants and agreements in this Agreement by the Company shall bind its successors and assigns, whether so expressed or not. Section 108. Separability Clause. In case any provision in this Agreement or in the Units 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 109. Benefits of Agreement. Nothing in this Agreement or in the Unit Certificates, 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 Units evidenced by their Unit Certificates by their acceptance of delivery thereof. Section 110. Governing Law. THIS AGREEMENT AND THE UNITS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF. Section 111. Legal Holidays. In any case where any Quarterly Payment Date or the Stock Purchase Date shall not be a Business Day, then (notwithstanding any other provision of this Agreement or of the Units) payment in respect of distributions or interest on or principal of Pledged Securities or Contract Fees shall not be made, Purchase Contracts shall not be performed and other actions described herein shall not occur, but such payments shall be made, the Purchase Contracts shall be performed and such other actions shall occur, as applicable, on the next succeeding Business Day with the same force and effect as if made on such Quarterly Payment Date or Stock Purchase Date, as the case may be; provided, that to the extent such payment is made on the next succeeding Business Day, no distributions or interest shall accrue or be payable by the Company or any Holder for the period from and after any such Quarterly Payment Date or Stock Purchase Date, as the case may be, to the date of payment -11- 17 or performance; except that if such next succeeding Business Day is in the next succeeding calendar year, such payment shall be made, the Purchase Contracts shall be performed or such other action shall occur on the immediately preceding Business Day with the same force and effect as if made on such Quarterly Payment Date or the Stock Purchase Date. Section 112. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. Section 113. Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times at the Corporate Trust Office for inspection by any Holder. ARTICLE TWO PURCHASE CONTRACT CERTIFICATE FORMS Section 201. Forms of Unit Certificates Generally. Unit Certificates evidencing Units 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 Units are listed or Depositary therefor, or as may, consistently herewith, be determined by the officers of the Company executing such Unit Certificates, as evidenced by their execution of the Unit Certificates. The definitive Unit 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 Unit Certificates, consistent with the provisions of this Agreement, as evidenced by their execution thereof. Every Global Unit Certificate authenticated, executed and delivered hereunder shall bear a legend in substantially the following form: THIS UNIT CERTIFICATE IS A GLOBAL UNIT 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 UNIT CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A UNIT CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS UNIT CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE -12- 18 NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT. Section 202. Form of Purchase Contract Agent's Certificate of Authentication. The form of the Purchase Contract Agent's certificate of authentication for the Units shall be in substantially the form set forth on the form of the Unit Certificates. ARTICLE THREE THE UNITS Section 301. Title and Terms; Denominations. The aggregate number of Units evidenced by Unit 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 Unit Certificates authenticated, executed and delivered upon registration of transfer of, in exchange for, or in lieu of, other Unit Certificates pursuant to Sections 304, 305, 306 or 805. Unit Certificates shall be issuable only in registered form and only in denominations of a single Unit and any integral multiple thereof. Section 302. Rights and Obligations Evidenced by the Unit Certificates. Each Unit Certificate shall evidence the number of Units specified therein. Prior to the purchase, if any, of Shares under the Purchase Contracts, the Units shall not entitle the Holders to any of the rights or privileges of a holder of Shares by virtue of holding such Units, including, without limitation, the right to vote or receive any dividends or other distributions 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. Section 303. Execution, Authentication, Delivery and Dating. Subject to the provisions of Section 309 hereof, upon the execution and delivery of this Agreement, and at any time and from time to time thereafter, the Company may deliver Unit Certificates executed by the Company to the Purchase Contract Agent for authentication, execution on behalf of the Holders and delivery, together with its Issuer Order for authentication of such Unit Certificates, and the Purchase Contract Agent in accordance with such Issuer Order shall authenticate, execute on behalf of the Holders and make such Unit Certificates available for delivery. -13- 19 The Unit Certificates shall be executed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, its President, its Chief Financial Officer 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 Unit Certificates may be manual or facsimile. Unit 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 Unit Certificates or did not hold such offices at the date of such Unit Certificates. Each Unit Certificate shall be dated the date of its authentication. No Purchase Contract evidenced by a Unit Certificate shall be valid until such Unit Certificate has been executed on behalf of the Holder by the manual signature of an authorized signatory of the Purchase Contract Agent, as such Holder's attorney-in-fact. Such signature by an authorized signatory of the Purchase Contract Agent shall be conclusive evidence that the Holder of such Unit Certificate has entered into the Purchase Contracts evidenced by such Unit Certificate. No Unit Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose unless there appears on such Unit Certificate a certificate of authentication substantially in the form provided for herein executed by an authorized signatory of the Purchase Contract Agent by manual signature, and such certificate upon any Unit Certificate shall be conclusive evidence, and the only evidence, that such Unit Certificate has been duly authenticated and delivered hereunder. Section 304. Temporary Unit Certificates. Pending the preparation of definitive Unit Certificates, the Company shall execute and deliver (together with an Issuer Order) to the Purchase Contract Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of the Holders, and deliver, in lieu of such definitive Unit Certificates, temporary Unit 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 Units are listed or Depositary therefor, or as may, consistently herewith, be determined by the officers of the Company executing such Unit Certificates, as evidenced by their execution of the Unit Certificates. -14- 20 If temporary Unit Certificates are issued, the Company will cause definitive Unit Certificates to be prepared without unreasonable delay. After the preparation of definitive Unit Certificates, the temporary Unit Certificates shall be exchangeable for definitive Unit Certificates upon surrender of the temporary Unit 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 Unit Certificates, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and deliver in exchange therefor, one or more definitive Unit Certificates of authorized denominations and evidencing a like number of Units, as the case may be, as the temporary Unit Certificate or Unit Certificates so surrendered. Until so exchanged, the temporary Unit Certificates shall in all respects evidence the same benefits and the same obligations with respect to the Units evidenced thereby as definitive Unit Certificates. Section 305. Registration; Registration of Transfer and Exchange. The Purchase Contract Agent shall keep at the Corporate Trust Office registers (the registers maintained in such office being herein referred to as the "Unit Registers") in which, subject to such reasonable regulations as it may prescribe, the Purchase Contract Agent shall provide for the registration of Unit Certificates evidencing the Units and of transfers of Unit Certificates evidencing Units (the Purchase Contract Agent, in such capacity, the "Unit Registrar"). Upon request from any Trustee or the Company, the Purchase Contract Agent shall furnish to such requesting party a copy of the Unit Register for the Unit Certificates evidencing the Units as promptly as practicable. Upon surrender for registration of transfer of any Unit Certificate at the Corporate Trust Office, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract 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 Unit Certificates evidencing a like number of Units. At the option of the Holder, Unit Certificates may be exchanged for other Unit Certificates evidencing a like number of Units upon surrender of the Unit Certificates to be exchanged at the Corporate Trust Office. Whenever any Unit Certificates are so surrendered for exchange, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and deliver the Unit Certificates which the Holder making the exchange is entitled to receive. All Unit Certificates issued upon any registration of transfer or exchange of a Unit Certificate shall evidence the ownership of the same number of Units, and be entitled to the same benefits and subject to the same obligations, under the Principal Agreements as the Units, evidenced by the Unit Certificate surrendered upon such registration of transfer or exchange. -15- 21 Every Unit Certificate presented or surrendered for registration of transfer or for exchange shall (if so required by the Purchase Contract Agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Purchase Contract 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 Unit Certificate, but the Company and the Purchase Contract 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 Unit Certificates, other than any exchanges pursuant to Sections 304, 306 and 805 not involving any transfer. Notwithstanding the foregoing, the Company shall not be obligated to execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall not be obligated to authenticate, execute on behalf of the Holder and deliver any Unit Certificate in respect of a Unit Certificate presented or surrendered for registration of transfer or for exchange on or after the Stock Purchase Date or the Termination Date. In lieu of delivery of a new Unit Certificate, upon satisfaction of the applicable conditions specified above in this Section and receipt of appropriate registration or transfer instructions from such Holder, the Purchase Contract Agent shall (a) if the Stock Purchase Date has occurred, deliver the Shares issuable in respect of the Purchase Contracts forming a part of the Units evidenced by such Unit Certificate, or (b) if a Termination Event shall have occurred on or prior to the Stock Purchase Date, transfer the liquidation or principal amount of the Pledged Securities 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 (a), (b), (c) and (d) below shall apply only to Global Unit Certificates: (a) Each Global Unit 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 Unit Certificate or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Unit Certificate shall constitute a single Unit Certificate for all purposes of this Agreement. (b) Notwithstanding any other provision in this Agreement, no Global Unit Certificate may be exchanged in whole or in part for Unit Certificates registered, and no transfer of a Global Unit Certificate in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Unit Certificate or a nominee thereof unless (i) such Depositary (x) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Unit Certificate or -16- 22 (y) has ceased to be a clearing agency registered under the Exchange Act or (ii) there shall have occurred and be continuing a default by the Company in respect of its obligations under one or more Principal Agreements. (c) Subject to Clause (b) above, any exchange of a Global Unit Certificate for other Unit Certificates may be made in whole or in part, and all Unit Certificates issued in exchange for a Global Unit Certificate or any portion thereof shall be registered in such names as the Depositary for such Global Unit Certificate shall direct. (d) Every Unit Certificate authenticated and delivered upon registration of transfer of, in exchange for or in lieu of a Global Unit Certificate or any portion thereof, whether pursuant to this Section, Section 304, 306 or 805 or otherwise, shall be authenticated, executed on behalf of the Holders and delivered in the form of, and shall be, a Global Unit Certificate, unless such Unit Certificate is registered in the name of a Person other than the Depositary for such Global Unit Certificate or a nominee thereof. Section 306. Mutilated, Destroyed, Lost and Stolen Unit Certificates. If any mutilated Unit Certificate is surrendered to the Purchase Contract Agent, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and deliver in exchange therefor, a new Unit Certificate, evidencing the same number of Units and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Purchase Contract Agent (a) evidence to their satisfaction of the destruction, loss or theft of any Unit Certificate, and (b) 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 Purchase Contract Agent that such Unit Certificate has been acquired by a bona fide purchaser, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and deliver to the Holder, in lieu of any such destroyed, lost or stolen Unit Certificate, a new Unit Certificate, evidencing the same number of Units and bearing a number not contemporaneously outstanding. Notwithstanding the foregoing, the Company shall not be obligated to execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall not be obligated to authenticate, execute on behalf of the Holder, and deliver to the Holder, on or after the Stock Purchase Date or the Termination Date, a Unit Certificate in respect of any mutilated, destroyed, lost or stolen Unit Certificate. In lieu of delivery of a new Unit Certificate, upon satisfaction of the applicable conditions specified above in this Section and -17- 23 receipt of appropriate registration or transfer instructions from such Holder, the Purchase Contract Agent shall (a) if the Stock Purchase Date has occurred, deliver the Shares issuable in respect of the Purchase Contracts forming a part of the Units evidenced by such Unit Certificate, or (b) if a Termination Event shall have occurred on or prior to the Stock Purchase Date, transfer the liquidation or principal amount of the Pledged Securities evidenced thereby, in each case subject to the applicable conditions and in accordance with the applicable provisions of Article Five hereof. Upon the issuance of any new Unit Certificate under this Section, the Company and the Purchase Contract 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 Purchase Contract Agent) connected therewith. Every new Unit Certificate issued pursuant to this Section in lieu of any destroyed, lost or stolen Unit Certificate shall constitute an original additional contractual obligation of the Company and of the Holder, whether or not the destroyed, lost or stolen Unit 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 the Principal Agreements equally and proportionately with any and all other Unit 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 Unit Certificates. Section 307. Persons Deemed Owners. Prior to due presentment of a Unit Certificate for registration of transfer, the Company and the Purchase Contract Agent, and any agent of the Company or the Purchase Contract Agent, may treat the Person in whose name such Unit Certificate is registered as the owner of the Units evidenced thereby, for the purpose of receiving payments of Contract Fees, distributions or interest on the Pledged Securities and performance of the underlying Purchase Contracts and for all other purposes whatsoever, whether or not the payment of Contract Fees, distributions or interest on the Pledged Securities payable in respect of the Purchase Contracts constituting a part of the Units evidenced thereby shall be overdue and notwithstanding any notice to the contrary, and neither the Company nor the Purchase Contract Agent, nor any agent of the Company or the Purchase Contract Agent, shall be affected by notice to the contrary. Notwithstanding the foregoing, with respect to any Global Unit Certificate, nothing herein shall prevent the Company, the Purchase Contract Agent or any agent of the Company or the Purchase Contract 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 -18- 24 Global Unit Certificate or impair, as between such Depositary and owners of beneficial interests in such Global Unit Certificate, the operation of customary practices governing the exercise of rights of such Depositary (or its nominee) as Holder of such Global Unit Certificate. Section 308. Cancellation. All Unit Certificates surrendered for delivery of Shares on or after the Stock Purchase Date, transfer of Pledged Securities after the occurrence of a Termination Event or registration of transfer or exchange shall, if surrendered to any Person other than the Purchase Contract Agent, be delivered to the Purchase Contract Agent and, if not already canceled, shall be promptly canceled by it. The Company may at any time deliver to the Purchase Contract Agent for cancellation any Unit Certificates previously authenticated, executed and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Unit Certificates so delivered shall, upon Issuer Order, be promptly canceled by the Purchase Contract Agent. No Unit Certificates shall be authenticated, executed on behalf of the Holder and delivered upon transfer of, in exchange for or in lieu of any Unit Certificates canceled as provided in this Section, except as expressly permitted by this Agreement. All canceled Unit Certificates held by the Purchase Contract Agent shall be disposed of as directed by Issuer Order; [provided, however, that the Purchase Contract Agent shall not be required to destroy such Unit Certificates]. If the Company or any Affiliate of the Company shall acquire any Unit Certificate, such acquisition shall not operate as a cancellation of such Unit Certificate unless and until such Unit Certificate is delivered to the Purchase Contract Agent canceled or for cancellation. Section 309. Payments on the Units. All amounts payable to Holders as required by Section 401, will be payable at the office of the Purchase Contract 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 relevant Unit Register on the Record Date; provided, however, that for so long as any Units are evidenced by Global Certificates, the Purchase Contract Agent will pay each such amount payable in respect of such Units by wire transfer in same-day funds, no later than 2:00 p.m., New York City time, on the Business Day such amount is received by the Purchase Contract Agent from the Collateral Agent or the Company (or, if such amount is received by the Purchase Contract Agent after 1:00 p.m., New York City time, on a Business Day or on a day that is not a Business Day, no later than 10:00 a.m., New York City time, on the next succeeding Business Day), to the Depositary, to the account or accounts designated by it for such purpose. -19- 25 ARTICLE FOUR THE PLEDGED SECURITIES Section 401. Payments on the Pledged Securities. Interest on any Pledged Security that is paid on any Quarterly Payment Date shall, subject to receipt thereof by the Purchase Contract Agent from the Collateral Agent as provided by the terms of the Pledge Agreement, be paid to the Person in whose name the Unit Certificate (or one or more Predecessor Unit Certificates) of which such Pledged Security is a part is registered at the close of business on the Record Date next preceding such Quarterly Payment Date. Each Unit Certificate evidencing Pledged Securities delivered under this Agreement upon registration of transfer of or in exchange for or in lieu of any other Unit Certificate shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by the Pledged Securities underlying such other Unit Certificate. In the case of any Unit 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 Quarterly Payment Date, interest on the Pledged Securities underlying such Unit otherwise payable on such Quarterly Payment Date shall be payable on such Quarterly Payment Date notwithstanding such Early Settlement, and such interest shall, subject to receipt thereof by the Purchase Contract Agent, be paid to the Person in whose name the Unit Certificate (or one or more Predecessor Unit 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 Unit with respect to which Early Settlement of the underlying Purchase Contract is effected on an Early Settlement Date, interest on the related Pledged Securities that would otherwise be payable after the Early Settlement Date shall not be payable hereunder to the Holder of such Security. Section 402. Transfer of Pledged Securities Upon Occurrence of Termination Event. Upon the occurrence of a Termination Event and the transfer of the Pledged Securities underlying each Holder's Units to the Purchase Contract Agent pursuant to the terms of the Pledge Agreement, the Purchase Contract Agent shall request transfer instructions with respect to such Pledged Securities from such Holder by written request mailed to such Holder at his address as it appears in the relevant Unit Register and shall give notice of such Termination Event to the Collateral Agent. Thereafter, upon surrender to the Purchase Contract Agent of a Unit Certificate evidencing a Holder's Units, with transfer instructions in proper form for transfer of the underlying Pledged Securities, the Purchase Contract Agent shall transfer the Pledged Securities evidenced by such Unit Certificate to such Holder in accordance with such instructions; provided, however, that if the Pledged Securities are to be transferred to a Person other than the Person in whose name such Unit Certificate is registered, no such transfer shall be made unless the Person requesting the transfer has paid any transfer and other taxes required by reason of such transfer to a Person other than the registered Holder of such Unit Certificate or has established to the satisfaction of the Company that such tax either has been paid or is not payable. Until the foregoing conditions to transfer any of the Pledged Securities underlying any Units has been met, the Purchase Contract Agent shall hold such Pledged Securities as custodian for the Holder of such Units. If upon a Termination Event any Holder of Units would, after satisfying the foregoing conditions, otherwise be entitled to receive (or have transferred to such Holder's designee) treasury securities of any series having a principal amount that is not an integral multiple of $1,000, such Holder shall instead be entitled to receive (or have transferred to -20- 26 such Holder's designee) treasury securities of such series in a principal amount equal to the next lower integral multiple of $1,000 plus a portion of the net proceeds from the sale of treasury securities of such series contemplated by the succeeding sentence representing such Holder's interest therein. As soon as practicable after transfer to the Purchase Contract Agent of the Pledged Securities as provided in the Pledge Agreement, the Purchase Contract Agent shall, at the direction and on behalf of all Holders who, by virtue of the preceding sentence, will not be entitled to a portion of the treasury securities of any series to which they would otherwise be entitled, aggregate and sell the treasury securities of such series representing such portion to or through one or more U.S. government securities dealers at then prevailing prices, deduct from the proceeds of such sales all commissions and other out-of-pocket transaction costs incurred in connection with such sales and, until the net proceeds therefrom have been distributed to the Holders entitled thereto or their designees, hold such proceeds in trust for such Holders. Section 403. Transfer of Pledged Securities Upon Early Settlement and Merger Early Settlement. (a) In the event of Early Settlement as described in Section 511, the Pledged Securities with respect to all Units which have been presented for settlement shall be released by the Collateral Agent to the Purchase Contract Agent who shall deliver the Pledged Securities to the Holder upon satisfaction of the conditions precedent described in Section 511. (b) In the event of a Cash Merger as described in Section 512, the Pledged Securities with respect to all Units which have been presented for payment on the Merger Early Settlement Date shall be released by the Collateral Agent to the Purchase Contract Agent who shall deliver the Pledged Securities to the Unit Holder upon satisfaction of the conditions precedent described in Section 512. ARTICLE FIVE THE PURCHASE CONTRACTS Section 501. Purchase of Shares. Each Holder of a Unit Certificate, by its acceptance thereof, agrees that it has entered into and shall be bound by the underlying Purchase Contract the terms and conditions of which are set forth in this Article Five. Each Purchase Contract shall obligate the Holder of such Unit to purchase, and the Company to sell, on the Stock Purchase 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 Stock Purchase Date, there shall have occurred a Termination Event. The "Settlement Rate" is equal to [(a) if the Average Trading Price (as defined below) is greater than or equal to the Threshold Appreciation Price, _______ of a Share per -21- 27 Purchase Contract, (b) if the Average Trading Price is less than the Threshold Appreciation Price but is greater than the Stated Amount, a fractional share of a Share per Purchase Contract equal to the Stated Amount divided by the Average Trading Price (rounded upward or downward to the nearest 1/10,000th of a share or, if there is not a nearest 1/10,000th of a share, to the next lower 1/10,000th of a share) and (c) if the Average Trading Price is less than or equal to the Stated Amount, one Share per Purchase Contract, in each case subject to adjustment as provided in Section 506] [provide alternative for Preferred Stock]. As provided in Section 508, no fractional Shares will be issued upon settlement of Purchase Contracts. [The Average Trading Price means the average of the Closing Prices per Share on each of the twenty consecutive Trading Days ending on the last Trading Day immediately preceding the Stock Purchase Date. The "Closing Price" of the Shares on any date of determination means the closing sale price (or, if no closing price is quoted, the last quoted sale price) of the Shares on the NASDAQ National Market ( "NASDAQ") on such date or, if the Shares are not quoted on NASDAQ on any such date, as reported in the composite transactions for the principal United States securities market on which the Shares are so quoted or, if the Shares are not so quoted on a United States national or regional securities market, the last quoted bid price for the Shares in the over-the-counter market as reported by the National Quotation Bureau or similar organization or, if such bid price is not available, the market value of the Shares on such date as determined by a nationally recognized investment banking firm retained for this purpose by the Company. A "Trading Day" means a day on which the Shares (A) are not suspended from trading on any national or regional securities exchange or association or over-the-counter market at the close of business and (B) have traded at least once on the national or regional securities exchange or association or over-the-counter market that is the primary market for the trading of the Shares.] Each Holder of a Unit Certificate evidencing Units, by its acceptance thereof, irrevocably authorizes the Purchase Contract Agent to enter into and perform the underlying Purchase Contracts on its behalf as its attorney-in-fact, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform its obligations under such Purchase Contracts, consents to the provisions of the Principal Agreements, irrevocably authorizes the Purchase Contract Agent to enter into the Pledge Agreement on its behalf as its attorney-in-fact, and consents to and agrees to be bound by the Pledge of the Pledged Securities underlying such Units pursuant to the Pledge Agreement. Each Holder of Units, by its acceptance thereof, further irrevocably covenants and agrees that unless such Holder satisfied its obligations to the Company under the Purchase Contracts underlying such Units as provided in Section 504(a), then to the extent and in the manner provided in Section 504(b) and the Pledge Agreement, but subject to the terms thereof, payments in respect of all or a portion of the principal of or proceeds from the Pledged Securities on the Stock Purchase 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. -22- 28 Upon registration of transfer of a Unit Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee) by the terms of the Purchase Contracts evidenced thereby and by the Pledge Agreement and the transferor shall be released from all such obligations evidenced by the Unit Certificate so transferred. The Company covenants and agrees, and each Holder of a Unit Certificate, by its acceptance thereof, likewise covenants and agrees, to be bound by the provisions of this paragraph. Section 502. Contract Fees. Subject to Section 503, the Company shall pay, on each Quarterly Payment Date, the Contract Fees payable in respect of each Purchase Contract to the Person in whose name the Unit Certificate (or one or more Predecessor Unit Certificates) evidencing such Purchase Contract is registered at the close of business on the Record Date next preceding such Quarterly Payment Date. The Contract Fees will be payable at the office of the Purchase Contract 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 Unit Register. Upon the occurrence of a Termination Event, the Company's obligation to pay Contract Fees (including any accrued or deferred Contract Fees) shall cease. Each Unit Certificate delivered under this Agreement upon registration of transfer of, in exchange for or in lieu of any other Unit Certificate shall carry the rights to receive accrued and unpaid Contract Fees that were carried by the Purchase Contracts evidenced by such other Unit Certificate. Subject to Sections 511 and 512, in the case of any Unit 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 Quarterly Payment Date, Contract Fees, if any, otherwise payable on such Quarterly Payment Date shall be payable on such Quarterly Payment Date notwithstanding such Early Settlement, and such Contract Fees shall be paid to the Person in whose name the Unit Certificate evidencing such Unit (or one or more Predecessor Unit Certificates) is registered at the close of business on such Record Date. Except as otherwise expressly provided in the immediately preceding sentence, the Company shall not be obligated to pay Contract Fees from and after the Early Settlement Date in respect of any Unit as to which an Early Settlement has been effected. The Company's obligations with respect to Contract Fees are subordinated and junior in right of payment to the Company's obligations under any Senior Indebtedness. Section 503. Deferral of Payment Dates for Contract Fees. -23- 29 The Company shall have the right, at any time prior to the Stock Purchase Date, to defer the payment of any or all of the Contract Fees otherwise payable on any Quarterly Payment Date, but only if the Company shall give the Holders and the Purchase Contract Agent written notice of its election to defer such payment (specifying the amount to be deferred) at least ten Business Days prior to the earlier of (i) the next succeeding Quarterly Payment Date or (ii) the date the Company is required to give notice of the Record Date or Quarterly Payment Date with respect to payment of such Contract Fees to NASDAQ or other applicable self-regulatory organization or to Holders of the Securities, but in any event not less than one Business Day prior to such date. Any Contract Fees so deferred shall bear additional Contract Fees thereon at the rate of _____% annum (computed on the basis of a 360-day year of twelve 30-day months), compounding on each succeeding Quarterly Payment Date, until paid in full. Contract Fees so deferred (and additional Contract Fees accrued thereon) shall be due on the next succeeding Quarterly 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. If the Purchase Contracts are terminated upon the occurrence of a Termination Event, the Holder's right to receive Contract Fees or deferred Contract Fees (and additional Contract Fees accrued thereon) will terminate. Section 504. Payment of Purchase Price. The purchase price for the Shares purchased pursuant to a Purchase Contract shall be paid by application of payments received by the Company on the Stock Purchase Date from the Collateral Agent pursuant to the Pledge Agreement in respect of the principal of the Pledged Securities 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 in respect of a Purchase Contract or deliver any certificates therefor to the Holder of the related Unit unless the Company shall have received payment in full of the aggregate purchase price for Shares to be purchased thereunder in the manner herein set forth. Section 505. Issuance of the Shares. As promptly as practicable on or after the Stock Purchase Date, upon receipt by the Company of payment in full of the aggregate purchase price for the Shares purchased by the Holders pursuant to the foregoing provisions of this Article, and subject to Section 506(b), the Company shall deposit with the Purchase Contract Agent, for the benefit of the Holders of the Units, one or more certificates representing the Shares registered in the name of the Purchase Contract Agent (or its nominee) as custodian for the Holders (such certificates for the Shares, together with any dividends or distributions with respect thereto, being hereinafter referred to as the "Purchase Contract Settlement Fund") to which the Holders are entitled hereunder. Subject to the foregoing, upon surrender of a Unit Certificate to the -24- 30 Purchase Contract Agent on or after the Stock Purchase Date, with the form of Settlement Instructions thereon duly completed and executed, the Holder of such Unit Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole Shares which such Holder is entitled to receive pursuant to the provisions of this Article Five (after taking into account all Units then held by such Holder) together with cash in lieu of fractional shares as provided in Section 508 and any dividends or distributions with respect to such shares constituting part of the Purchase Contract Settlement Fund, but without any interest thereon, and the Unit 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 form of Settlement Instructions appearing on the surrendered Unit Certificate. If any Shares issued in respect of a Purchase Contract are to be registered to a Person other than the Person in whose name the Unit 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 Unit 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 506. 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 Shares, 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 outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of Shares 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. The Company will not pay any dividend or make any distribution on the Shares held in the treasury of the Company.] [(2) In case the Company shall issue rights, options or warrants to all holders of its Shares (not being available on an equivalent basis to Holders of the Units upon settlement of the Purchase Contracts underlying such Units) entitling them, for a period expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, options or warrants, to subscribe for or purchase Shares at a price per share less than -25- 31 the Current Market Price per Share 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 outstanding at the close of business on the date fixed for such determination plus the number of Shares which the aggregate of the offering price of the total number of Shares so offered for subscription or purchase would purchase at such Current Market Price and the denominator shall be the number of Shares outstanding at the close of business on the date fixed for such determination plus the number of Shares so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of Shares 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. The Company shall not issue any such rights, options or warrants in respect of Shares held in the treasury of the Company.] [(3) In case outstanding Shares shall be subdivided into a greater number of Shares, 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 shall each be combined into a smaller number of Shares, the Settlement Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.] [(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Share 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 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 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 Shares on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Purchase Contract Agent) of the portion of the assets or evidences of indebtedness so distributed applicable to one Share and the denominator shall be such Current Market Price per Common Share, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of 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.] -26- 32 [(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Shares cash (excluding any cash that is distributed in a Reorganization Event to which Section 506(b) applies or as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, when combined with (I) the aggregate amount of any other distributions to all holders of its Shares made exclusively in cash within the 12 months preceding the date of payment of such distribution to the extent such amount has not already been applied in a prior adjustment pursuant to this paragraph (5) and (II) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the date of expiration of such tender or exchange offer, of the consideration paid 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 expiring within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made, exceeds __% of the product of the Current Market Price per Share on the date fixed for the determination of stockholders entitled to receive such distribution times the number of Shares outstanding on such date (such excess portion of such distribution being herein referred to as the "Excess Amount"), 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 the determination of stockholders entitled to receive such distribution by a fraction of which (i) the numerator shall be the Current Market Price per Share on the date fixed for such determination less an amount equal to (x) such Excess Amount divided by (y) the number of Shares outstanding at the close of business on the date fixed for such determination and (ii) the denominator shall be the Current Market Price per Share on the date fixed for such determination, 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.] [(6) In case the Company or any subsidiary of the Company shall consummate a tender or exchange offer for all or any portion of the Shares (other than normal course issuer bids in accordance with applicable laws) and pay an aggregate consideration in respect thereof having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that, when combined 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 date of expiration of such tender or exchange offer, of the consideration paid in respect of any other tender or exchange offer by the Company or any of its subsidiaries for all or any portion of the Shares expiring within the 12 months preceding the date of expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Shares made exclusively in cash within 12 months preceding the date of expiration of such tender or exchange offer to the extent such amount has not already been applied in a prior adjustment pursuant to paragraph (5) of this Section, exceeds __% of the -27- 33 product of the Current Market Price per share of the Common Stock on the date of expiration of such tender or exchange offer times the number of Shares outstanding (including any tendered shares) at the close of business on the date of such expiration, 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 of such expiration by a fraction of which (i) the numerator shall be (A) the product of (I) the Current Market Price per Share on the date of such expiration and (II) the number of Shares outstanding (including any tendered shares) at the close of business on the date of such expiration less (B) the amount of cash plus the fair market value (determined as aforesaid) of the aggregate consideration paid in respect of such tender or exchange offer and (ii) the denominator shall be the product of (A) the Current Market Price per share of the Common Stock on the date of such expiration and (B) the number of Shares outstanding (including any tendered shares) at the close of business on the date of such expiration less the number of shares acquired pursuant to such tender or exchange, such adjustment to become effective immediately prior to the opening of business on the day following the date of such expiration.] [(7) The reclassification of Shares into securities including securities other than Shares (other than any reclassification upon a Reorganization Event to which Section 506(b) applies) shall be deemed to involve (i) a distribution of such securities other than Shares to all holders of Shares (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and the "date fixed for such determination" within the meaning of paragraph (4) of this Section), and (ii) a subdivision or combination, as the case may be, of the number of Shares outstanding immediately prior to such reclassification into the number of Shares 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 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 Shares trade 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 (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, -28- 34 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 506(a), an adjustment shall also be made to the Average Trading Price solely to determine which of clauses (a), (b) or (c) of the definition of Settlement Rate in Section 501 will apply on the Stock Purchase Date. Such adjustment shall be made by multiplying the Average Trading Price 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 506(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 or diminish any income tax to any holders of Shares 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 Shares 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"), each Holder of Units will thereafter be entitled to receive on the Stock Purchase Date with respect to each Purchase Contract forming a part thereof, the kind and amount of securities, cash and other property receivable upon such Reorganization Event by a Holder of the number of Shares issuable on account of such Purchase Contract if the Stock Purchase Date had occurred immediately prior to such Reorganization Event, assuming such Holder of Shares is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be ("constituent Person"), or an Affiliate of a constituent Person, and failed to exercise its rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Reorganization Event (provided that if the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each Share 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 -29- 35 the event of such a Reorganization Event, the Person formed by such consolidation, merger or exchange or the Person which acquires the assets of the Company or, in the event of a liquidation or dissolution of the Company, the Company or a liquidating trust created in connection therewith, shall execute and deliver to the Purchase Contract Agent an agreement supplemental hereto providing that the Holders of Outstanding Units shall have the rights provided by this Section 506. 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 507. 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 506 and prepare and transmit to the Purchase Contract 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 506 (or if the Company is not aware of such occurrence, as soon as practicable after becoming so aware), provide a written notice to the Holders of the Units of the occurrence of such event and a statement in reasonable detail setting forth the method by which the adjustment to the Settlement Rate was determined and setting forth the adjusted Settlement Rate. (b) The Purchase Contract Agent shall not at any time be under any duty or responsibility to any holder of Units to determine whether any facts exist which may require any adjustment of the Settlement Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed in making the same. The Purchase Contract Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any Shares, or of any securities or property, which may at the time be issued or delivered with respect to any Purchase Contract; and the Purchase Contract Agent makes no representation with respect thereto. The Purchase Contract Agent shall not be responsible for any failure of the Company to issue, transfer or deliver any Shares pursuant to a Purchase Contract or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article.] Section 508. No Fractional Shares. -30- 36 No fractional shares or scrip representing fractional Shares shall be issued or delivered upon settlement on the Stock Purchase Date. If Unit Certificates evidencing more than one Purchase Contract shall be surrendered for settlement at one time by the same Holder, the number of full Shares which shall be delivered upon settlement shall be computed on the basis of the aggregate number of Purchase Contracts evidenced by the Unit Certificates so surrendered. Instead of any fractional Share which would otherwise be deliverable upon settlement of any Purchase Contracts on the Stock Purchase Date, the Company, through the Purchase Contract Agent, shall make a cash payment in respect of such fractional interest in an amount equal to such fraction times the Average Trading Price. The Company shall provide the Purchase Contract Agent from time to time with sufficient funds to permit the Purchase Contract Agent to make all cash payments required by this Section 508 in a timely manner. Section 509. Charges and Taxes. The Company will pay all stock transfer and similar taxes attributable to the initial issuance and delivery of the Shares pursuant to the Purchase Contracts; provided, however, that the Company shall not be required to pay any such tax or taxes which may be payable in respect of any exchange of or substitution for a Unit Certificate evidencing a Purchase Contract or any issuance of a Share in a name other than that of the registered Holder of a Unit Certificate surrendered in respect of the Purchase Contracts evidenced thereby, other than in the name of the Purchase Contract Agent, as custodian for such Holder, and the Company shall not be required to issue or deliver such share certificates or Unit 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. Section 510. Termination Event; Notice. The Purchase Contracts and the obligations and rights of the Company and the Holders thereunder, including, without limitation, all obligations and rights to pay or receive any accrued or deferred Contract Fees or to settle such Purchase Contracts pursuant to this Article Five, shall immediately and automatically terminate, without the necessity of any notice or action by any Holder, the Purchase Contract Agent or the Company, if, on or prior to the Stock Purchase Date, a Termination Event shall have occurred. Upon the occurrence of a Termination Event, the Company shall give written notice to the Purchase Contract Agent, the Collateral Agent and to the Holders at their addresses as they appear in the Unit Registers. Upon and after the occurrence of a Termination Event, the provisions of this Article Five (other than this Section 510) shall automatically terminate and be of no further force or effect, and the Unit Certificates shall thereafter represent only the right to receive the Pledged Securities forming a part of the Units theretofore evidenced thereby in accordance with the provisions of Section 402 and the Pledge Agreement. -31- 37 [Section 511. Early Settlement.] [(a) Subject to and upon compliance with the provisions of this Section 511, at the option of the Holder thereof, Purchase Contracts underlying Units may be settled early ("Early Settlement") on or prior to _______ on the _______ Business Day immediately preceding ______ __, ____, as provided herein. In order to exercise the right to effect Early Settlement with respect to any Purchase Contracts, the Holder of a Unit Certificate shall deliver such Unit Certificate to the Purchase Contract 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 side thereof duly completed and accompanied by payment (which payment shall be made in lawful money of the United States by 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 per Unit 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 Quarterly Payment Date deferred at the option of the Company pursuant to the Purchase Contract Agreement and remaining unpaid as of such immediately preceding Quarterly 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 Quarterly Payment Date to the opening of business on such Quarterly Payment Date, an amount equal to the sum of (x) the Contract Fees payable on such Quarterly Payment Date with respect to such Purchase Contracts plus (y) the interest with respect to the related Underlying Securities payable on such Quarterly Payment Date. If the foregoing requirements are first satisfied with respect to Purchase Contracts underlying Units at or prior to _______ New York City time, on a Business Day, such date shall be the "Early Settlement Date" with respect to such Units and if such requirements are first satisfied after _________, New York City time, on a Business Day or on a day that is not a Business Day, the "Early Settlement Date" with respect to such Units shall be the next succeeding Business Day.] [(b) Upon Early Settlement of Purchase Contracts by a Holder of the related Units, the Company shall issue, and the Holder shall be entitled to receive regardless of the market price of the Shares on the Early Settlement Date, ________ Shares on account of each Purchase Contract as to which Early Settlement is effected (the "Early Settlement Rate"). The Early Settlement Rate shall be adjusted in the manner and at the same time as the Settlement Rate is adjusted.] [(c) No later than the ______ Business Day after the applicable Early Settlement Date the Company shall cause (i) the Shares issuable upon Early Settlement of Purchase Contracts to be issued and delivered, together with payment in lieu of any fraction of a share, as provided in Section 508, and (ii) the related Notes to be released from the Pledge by the Collateral Agent and transferred, in each case, in book-entry form through the facilities of the Depository Trust Company to the Purchase Contract Agent for delivery to the Holder thereof or its designee.] [(d) Upon Early Settlement of any Purchase Contracts, and subject to receipt of Shares from the Company and the Notes from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Unit Certificate evidencing the related Units, (i) transfer to the Holder the Notes forming a part of such Units in book-entry form through the facilities of the Depository Trust Company, and -32- 38 (ii) deliver to the Holder a certificate or certificates for the full number of Shares issuable upon such Early Settlement, together with payment in lieu of any fraction of a share, as provided in Section 508.] [(e) In the event that Early Settlement is effected (i) no Contract Fees will accrue following the Early Settlement Date, and (ii) with respect to Purchase Contracts underlying less than all the Units evidenced by a Unit Certificate, upon such Early Settlement the Company shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Unit Certificate evidencing the Units as to which Early Settlement was not effected.] [Section 512. Early Settlement Upon Merger.] [(a) In the event of a merger or consolidation of the Company of the type described in clause (i) of Section 506(b) in which the Shares outstanding immediately prior to such merger or consolidation are exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("Merger Early Settlement") as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger the Company or, at the request and expense of the Company, the Purchase Contract Agent shall give all Holders notice, in the manner provided in Section 105, of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent.] [Each such notice shall contain: (i) the date, which shall be not less than 20 nor more than 30 days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date"); (ii) the date, which shall be three Business Days prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised; (iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securities, cash and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 506(b); (iv) a statement to the effect that all or a portion of the Stated Amount payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; -33- 39 (v) the instructions a Holder must follow to exercise the Merger Early Settlement right; and (vi) a statement to the effect that accrued and unpaid Contract Fees in respect of the Purchase Contracts for which Merger Early Settlement shall have been effected shall be payable on the Merger Early Settlement Date and that upon such payment Contract Fees on such Purchase Contracts shall cease to accrue.] [(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent on or before _______, New York City time on the date specified in the notice the Unit Certificate(s) with respect to which the Merger Early Settlement right is being exercised with the form of "Election to Settle Early" on the reverse thereof, duly completed accompanied by payment of the purchase price for the property to be purchased pursuant to the Purchase Contracts underlying such Units, which payment shall be made in lawful money of the United States by certified or cashier's check payable to the order of the Company in immediately available funds in an amount equal to the Early Settlement Amount.] [(c) In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, (i) on the Merger Early Settlement Date the Company shall deliver or cause to be delivered by the Purchase Contract Agent to each such exercising Holder the net cash, securities and other property to be received, as provided herein, by such exercising Holder in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised in accordance with the settlement instructions provided by such Holder and (ii) all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date and all references to the form of Settlement Instruction shall be deemed to refer to the form of Election to Settle Early, as applicable.] [(d) In the event that Merger Early Settlement is effected with respect to less than all of the Purchase Contracts underlying the Units evidenced by a Unit Certificate, upon such Merger Early Settlement the Company shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holders and deliver to the Holder thereof, at the expense of the Company, a Unit Certificate evidencing the Units as to which Merger Early Settlement was not effected.] -34- 40 ARTICLE SIX REMEDIES Section 601. Unconditional Rights of Holders. Notwithstanding any other provision in this Agreement, the Holder of any Unit shall have the right, which is absolute and unconditional but which is subject to Section 510, to purchase Shares pursuant to the Purchase Contract underlying such Unit and, in each such case, to institute suit for the enforcement of any such right, and such rights shall not be impaired without the consent of such Holder. Section 602. Restoration of Rights and Remedies. If any Holder of Units 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 603. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement of mutilated, destroyed, lost or stolen Unit Certificates in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Holders of Units is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Section 604. 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 605. Undertaking for Costs. All parties to this Agreement agree, and each Holder of any Unit by its acceptance of the Unit Certificate evidencing such Unit shall be deemed to have agreed, that any court -35- 41 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 Purchase Contract Agent for any action taken, suffered or omitted by it as Purchase Contract 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 Purchase Contract Agent, to any suit instituted by any Holder of Units, or group of Holders, holding in the aggregate more than 10% of the number of Outstanding Units, or to any suit instituted by any Holder of Units for the enforcement of payments due in respect of Pledged Securities or Contract Fees on Purchase Contracts underlying such Units on or after the respective due dates therefor, or for enforcement of the right to purchase Shares under the Purchase Contracts constituting a part of such Units. Section 606. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Agreement; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Purchase Contract 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 PURCHASE CONTRACT AGENT Section 701. Certain Duties and Responsibilities. (a)(i) The Purchase Contract Agent undertakes to perform, with respect to the Units, 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 Purchase Contract Agent; and (ii) the Purchase Contract Agent may, with respect to the Units, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Purchase Contract 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 -36- 42 furnished to the Purchase Contract Agent, the Purchase Contract Agent shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Agreement but shall have no duty to confirm or investigate the accuracy or mathematical calculations or other facts stated therein. (b) Purchase Contract Agent shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part; (i) the Purchase Contract 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 Purchase Contract Agent was grossly negligent in ascertaining the pertinent facts; (ii) no provision of this Agreement shall require the Purchase Contract Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; and (iii) In no event shall the Purchase Contract Agent be liable for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not such damages were foreseeable or contemplated. (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 Purchase Contract Agent shall be subject to the provisions of this Section. Section 702. Notice of Default. Within 90 days after the occurrence of any default by the Company hereunder, of which a Responsible Officer of the Purchase Contract Agent has actual knowledge, the Purchase Contract Agent shall transmit by mail to all Holders of Units, as their names and addresses appear in the Unit Registers, notice of such default hereunder, unless such default shall have been cured or waived. Section 703. Certain Rights of Purchase Contract Agent. Subject to the provisions of Section 701: (a) the Purchase Contract Agent may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, -37- 43 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 Purchase Contract Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Purchase Contract Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers' Certificate of the Company; (d) the Purchase Contract Agent may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Purchase Contract 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; and (f) the Purchase Contract Agent may execute any of its powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Purchase Contract 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 704. Not Responsible for Recitals or Issuance of Units. The recitals contained herein and in the Unit Certificates shall be taken as the statements of the Company and the Purchase Contract Agent assumes no responsibility for their correctness. The Purchase Contract Agent makes no representations as to the validity or sufficiency of this Agreement or of the Units. The Purchase Contract Agent shall not be accountable for the use or application by the Company of the proceeds in respect of the Notes or Purchase Contracts. Section 705. May Hold Units. Any Unit Registrar or any other agent of the Company, or the Purchase Contract Agent, in its individual or any other capacity, may become the owner or pledgee of Units and -38- 44 may otherwise deal with the Company with the same rights it would have if it were not Unit Registrar or such other agent, or the Purchase Contract Agent. Section 706. Money Held in Trust. Money held by the Purchase Contract Agent hereunder need not be segregated from other funds except to the extent required by law. The Purchase Contract Agent shall be under no obligation to invest or pay interest on any money received by it hereunder except as otherwise agreed in writing with the Company. Section 707. Compensation and Reimbursement. The Company agrees: (a) to pay to the Purchase Contract Agent from time to time such compensation for all services rendered by it hereunder as the Company and the Purchase Contract Agent shall from time to time agree in writing; (b) except as otherwise expressly provided herein, to reimburse the Purchase Contract Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by the Purchase Contract 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 gross negligence or bad faith; and (c) to indemnify the Purchase Contract Agent and any predecessor Purchase Contract Agent and their agents for, and to hold each of them harmless against, any and all loss, damage, claim, liability or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Purchase Contract Agent), incurred without gross 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. The provision of this Section 707 shall survive the termination of this Agreement and the resignation or removal of the Purchase Contract Agent. Section 708. Purchase Contract Agent Required; Eligibility. There shall at all times be a Purchase Contract Agent hereunder which shall be a corporation or banking association organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under -39- 45 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 a corporate trust office in the Borough of Manhattan, The City of New York, if there be such a corporation in the Borough of Manhattan, The City of New York qualified and eligible under this Article and willing to act on reasonable terms. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Purchase Contract 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 709. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Purchase Contract Agent and no appointment of a successor Purchase Contract Agent pursuant to this Article shall become effective until the acceptance of appointment by the successor Purchase Contract Agent in accordance with the applicable requirements of Section 710. (b) The Purchase Contract Agent may resign at any time by giving written notice thereof to the Company __ days prior to the effective date of such resignation. If the instrument of acceptance by a successor Purchase Contract Agent required by Section 710 shall not have been delivered to the Purchase Contract Agent within __ days after the giving of such notice of resignation, the resigning Purchase Contract Agent may petition any court of competent jurisdiction for the appointment of a successor Purchase Contract Agent. (c) The Purchase Contract Agent may be removed at any time by Act of the Holders of a majority in number of the Outstanding Units delivered to the Purchase Contract Agent and the Company. (d) If at any time (i) the Purchase Contract Agent fails to comply with Section 310(b) of the TIA, as if the Purchase Contract Agent were an indenture trustee under an indenture qualified under the TIA, after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Unit for at least six months, or (ii) the Purchase Contract Agent shall cease to be eligible under Section 708 and shall fail to resign after written request therefor by the Company or by any such Holder, or -40- 46 (iii) the Purchase Contract Agent shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Purchase Contract Agent or of its property shall be appointed or any public officer shall take charge or control of the Purchase Contract Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (x) the Company by a Board Resolution may remove the Purchase Contract Agent, or (y) any Holder who has been a bona fide Holder of a Unit for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Purchase Contract Agent and the appointment of a successor Purchase Contract Agent. (e) If the Purchase Contract Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Purchase Contract Agent for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Purchase Contract Agent and shall comply with the applicable requirements of Section 710. If no successor Purchase Contract Agent shall have been so appointed by the Company and accepted appointment in the manner required by Section 710, the Purchase Contract Agent or any Holder who has been a bona fide Holder of a Unit for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Purchase Contract Agent. (f) The Company shall give, or shall cause such successor Purchase Contract Agent to give, notice of each resignation and each removal of the Purchase Contract Agent and each appointment of a successor Purchase Contract Agent by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Units as their names and addresses appear in the Unit Registers. Each notice shall include the name of the successor Purchase Contract Agent and the address of its Corporate Trust Office. Section 710. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Purchase Contract Agent, every such successor Purchase Contract Agent so appointed shall execute, acknowledge and deliver to the Company and to the retiring Purchase Contract Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Purchase Contract Agent shall become effective and such successor Purchase Contract Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, agencies and duties of the retiring Purchase Contract Agent; but, on the request of the Company or the successor Purchase Contract Agent, such retiring Purchase Contract Agent shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Purchase Contract Agent all the rights, powers and trusts of the retiring Purchase Contract Agent and shall duly assign, transfer and deliver to such successor Purchase Contract Agent all property and money held by such retiring Purchase Contract Agent hereunder. -41- 47 (b) Upon request of any such successor Purchase Contract Agent, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Purchase Contract Agent all such rights, powers and agencies referred to in paragraph (a) of this Section. (c) No successor Purchase Contract Agent shall accept its appointment unless at the time of such acceptance such successor Purchase Contract Agent shall be qualified and eligible under this Article. Section 711. Merger, Conversion, Consolidation or Succession to Business. Any corporation or banking association into which the Purchase Contract Agent may be merged or converted or with which it may be consolidated, or any corporation or banking association resulting from any merger, conversion or consolidation to which the Purchase Contract Agent shall be a party, or any corporation or banking association succeeding to all or substantially all the corporate trust business of the Purchase Contract Agent, shall be the successor of the Purchase Contract Agent hereunder, provided such corporation or banking association 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 Unit Certificates shall have been authenticated and executed on behalf of the Holders, but not delivered, by the Purchase Contract Agent then in office, any successor by merger, conversion or consolidation to such Purchase Contract Agent may adopt such authentication and execution and deliver the Unit Certificates so authenticated and executed with the same effect as if such successor Purchase Contract Agent had itself authenticated and executed such Units. Section 712. Preservation of Information; Communications to Holders. (a) The Purchase Contract Agent shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders received by the Purchase Contract Agent in its capacity as Unit Registrar. (b) If three or more Holders (herein referred to as "applicants") apply in writing to the Purchase Contract Agent, and furnish to the Purchase Contract Agent reasonable proof that each such applicant has owned a Unit for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders with respect to their rights under this Agreement or under the Units and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Purchase Contract 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 Purchase Contract Agent in accordance with Section 712(a). -42- 48 (c) Every Holder of Units, by receiving and holding the Unit Certificates evidencing the same, agrees with the Company and the Purchase Contract Agent that none of the Company, the Purchase Contract Agent nor any agent of any of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 712(b), regardless of the source from which such information was derived. Section 713. No Obligations of Purchase Contract Agent. Except to the extent otherwise provided in this Agreement, the Purchase Contract 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 Unit thereunder. The Company agrees, and each Holder of a Unit Certificate, by its acceptance thereof, shall be deemed to have agreed, that the Purchase Contract Agent's execution of the Unit Certificates on behalf of the Holders shall be solely as agent and attorney-in-fact for the Holders, and that the Purchase Contract 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 714. Tax Compliance. (a) The Purchase Contract 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 any payments made with respect to the Units, including Form 1099. Such compliance shall include, without limitation, the timely payment of all amounts required to be withheld to the appropriate taxing authority or its designated agent. (b) The Purchase Contract 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 701(a)(ii) hereof. (c) The Purchase Contract 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. -43- 49 ARTICLE EIGHT SUPPLEMENTAL AGREEMENTS Section 801. Supplemental Agreements Without Consent of Holders. Without the consent of any Holders, the parties to either Principal Agreement, at any time and from time to time, may enter into one or more agreements supplemental hereto or thereto, in form satisfactory to such parties, for any of the following purposes: (1) to evidence the succession of another Person to any such party, and the assumption by any such successor of the covenants of such party herein or therein and under the Units; 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 Purchase Contract Agent; or (4) to make provision with respect to the rights of Holders pursuant to the requirements of Section 506(b); or (5) to cure any ambiguity, to correct or supplement any provisions herein or therein which may be inconsistent with any other provisions herein or therein, or to make any other provisions with respect to such matters or questions arising under such Principal Agreement, provided such action shall not adversely affect the interests of the Holders. Section 802. Supplemental Agreements With Consent of Holders. With the consent of the Holders of not less than a majority of the Outstanding Units, by Act of said Holders delivered to the parties to either Principal Agreement, such parties (when authorized, in the case of the Company, by a Board Resolution) may enter into an agreement or agreements supplemental to such Principal Agreement for the purpose of modifying in any manner the terms of the Units, or the provisions of such Principal Agreement or the rights of the Holders in respect of the Units; provided, however, that no such supplemental agreement shall, without the consent of the Holder of each Outstanding Unit affected thereby, (1) change any payment date; (2) change the amount or type of Pledged Securities required to be pledged to secure obligations under the Units, impair the right of the Holder of any Unit to receive distributions or interest payments on the underlying Pledged -44- 50 Securities or otherwise adversely affect the Holder's rights in or to such Pledged Securities; (3) impair the right to institute suit for the enforcement of any Purchase Contract; (4) reduce the number of Shares to be purchased pursuant to any Purchase Contract, increase the price to purchase Shares upon settlement of any Purchase Contract, change the Stock Purchase Date or otherwise adversely affect the Holder's rights under any Purchase Contract; or (5) reduce the percentage of the Outstanding Units 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. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any supplemental agreement to any Principal Agreement. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental agreement, whether or not such Holders remain Holders after such record date; provided, that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 90 days after such record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect. Section 803. 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 the Principal Agreements, the Purchase Contract Agent shall be entitled to receive and (subject to Section 701) 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 Purchase Contract Agent may, but shall not be obligated to, enter into any such supplemental agreement which affects the Unit Agent's own rights, duties or immunities under this Agreement or otherwise. -45- 51 Section 804. Effect of Supplemental Agreements. Upon the execution of any supplemental agreement under this Article, the relevant Principal Agreement shall be modified in accordance therewith, and such supplemental agreement shall form a part of such Principal Agreement for all purposes; and every Holder of Unit Certificates theretofore or thereafter authenticated, executed on behalf of the Holder and delivered hereunder shall be bound thereby. Section 805. Reference to Supplemental Agreements. Unit 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 Purchase Contract Agent, bear a notation in form approved by the Purchase Contract Agent as to any matter provided for in such supplemental agreement. If the Company shall so determine, new Unit Certificates so modified as to conform, in the opinion of the Purchase Contract 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 Purchase Contract Agent in exchange for Outstanding Unit Certificates evidencing the same number of Units. ARTICLE NINE CONSOLIDATION, MERGER, SALE OR CONVEYANCE Section 901. Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under Certain Conditions. The Company covenants that it will not merge or consolidate with any other Person or sell, assign, transfer, lease or convey all or substantially all of its assets to any Person, unless (a) 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 and the Pledge Agreement by one or more supplemental agreements in form satisfactory to the Purchase Contract Agent and, in the case of the Pledge Agreement, the Collateral Agent, executed and delivered to the Purchase Contract Agent, and, in the case of the Pledge Agreement, the Collateral Agent by such corporation, and (b) the Company or such successor corporation, as the case may be, shall not, immediately after such merger or consolidation, or such sale, assignment, transfer, lease or conveyance, be in default in the performance of any covenant or condition under any Principal Agreement or under any of the Units. Section 902. Rights and Duties of Successor Corporation. -46- 52 In case of any such consolidation, merger, sale, assignment, transfer, lease 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 in the Principal Agreements 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 XO Communications, Inc., any or all of the Unit Certificates evidencing Units issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Purchase Contract 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 Purchase Contract Agent shall authenticate and execute on behalf of the Holders and deliver any Unit Certificates which previously shall have been signed and delivered by the officers of the Company to the Purchase Contract Agent for authentication and execution, and any Unit Certificate evidencing Units which such successor corporation thereafter shall cause to be signed and delivered to the Purchase Contract Agent for that purpose. All the Unit Certificates so issued shall in all respects have the same legal rank and benefit under this Agreement as the Unit Certificates theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Unit 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 Unit Certificates evidencing Units thereafter to be issued as may be appropriate. Section 903. Opinion of Counsel to Purchase Contract Agent. The Purchase Contract Agent, subject to Sections 701 and 703, shall be provided an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, assignment, transfer, lease or conveyance, and any such assumption, complies with the provisions of this Article. ARTICLE TEN COVENANTS Section 1001. Performance Under Purchase Contracts. The Company covenants and agrees for the benefit of the Holders from time to time of the Units that it will duly and punctually perform its obligations under the Purchase Contracts in accordance with the terms of the Purchase Contracts and this Agreement. Section 1002. Maintenance of Office or Agency. -47- 53 The Company will maintain in the Borough of Manhattan, The City of New York an office or agency where Unit Certificates may be presented or surrendered for acquisition of Shares upon settlement and for transfer of Pledged Securities upon occurrence of a Termination Event, where Unit Certificates may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Company in respect of the Units and this Agreement may be served. The Company will give prompt written notice to the Purchase Contract 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 Purchase Contract 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 Purchase Contract 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 Unit 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 Purchase Contract 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 Units the Corporate Trust Office and appoints the Purchase Contract Agent at its Corporate Trust Office as paying agent in such city. Section 1003. Company to Reserve Shares. The Company shall at all times prior to the Stock Purchase Date reserve and keep available, free from preemptive rights, out of its authorized but unissued Shares the full number of Shares issuable against tender of payment in respect of all Purchase Contracts underlying the Units. Section 1004. Covenants as to Shares. The Company covenants that all Shares which may be issued against tender of payment in respect of the Purchase Contracts underlying the Units will, upon issuance, be newly issued (i.e., not issued out of treasury shares) and be duly authorized, validly issued, fully paid and nonassessable. Section 1005. Statements of Officers of the Company as to Default. The Company will deliver to the Purchase Contract Agent, on or before ________ __ in each year (beginning the first _________ __ after the date of the original issuance of the Units hereunder) a brief certificate from the principal executive, financial or accounting -48- 54 officer of the Company stating that in the course of the performance by the signer of his or her duties as an officer of the Company he or she would normally have knowledge of any default or non-compliance by the Company in the performance of any covenants or conditions contained in this Agreement, stating whether or not he or she has knowledge of any such default or non-compliance and, if so, specifying each such default or non-compliance of which the signer has knowledge and the nature thereof. For purposes of this Section 1005, non-compliance or default shall be determined without regard to any grace period or requirement of notice. -49- 55 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. XO COMMUNICATIONS, INC. By: -------------------------------- --------------------------, as Purchase Contract Agent By: -------------------------------- -50- 56 EXHIBIT A FORM OF UNIT CERTIFICATE XO COMMUNICATIONS, INC. _________________ UNITS (STATED AMOUNT $______ PER UNIT) CUSIP No. ___________ No. R-____ ____________ Units This Unit Certificate certifies that ______________ is the registered Holder of the number of Units set forth above. Each Unit represents the right to purchase Shares under a Purchase Contract with XO Communications, Inc., a Delaware corporation (the "Company"), together with ownership of the ______________ (the "Notes") or other Pledged Securities pledged to secure the obligations owed to the Company under such Purchase Contract, subject to the pledge arrangements securing the foregoing obligations. Each Purchase Contract evidenced hereby is governed by and set forth in a Purchase Contract Agreement, dated as of _________ __, ____ (the "Purchase Contract Agreement"), between the Company and _________________, as Purchase Contract Agent (herein called the "Purchase Contract Agent"). All terms used herein which are not defined herein and which are defined in the Purchase Contract Agreement have the meanings set forth therein. The Pledge evidenced hereby is governed by the Pledge Agreement. Reference is hereby made to the Purchase Contract Agreement and the Pledge Agreement, and any supplemental agreements thereto, for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Purchase Contract Agent, the Company, the Collateral Agent and the Holders. The summary contained herein is qualified in its entirety by the provisions of the Principal Agreements, and the Principal Agreements shall govern the rights of the parties to the extent that there is any conflict between such summary and such provisions. Each Purchase Contract evidenced hereby obligates the Holder of this Unit Certificate to purchase, and the Company to sell, on _______ __, ____ (the "Stock Purchase Date"), at a price equal to $_____ per unit (the "Stated Amount"), a number of Shares, having such terms as set forth in the Company's certificate of incorporation, as amended from time to time, [and certificate of designation relating to such Shares] ("Shares"), of the Company equal to the Settlement Rate, unless on or prior to the Stock Purchase Date there shall have occurred a Termination Event. The "Settlement Rate" is equal to (a) if the Average Trading Price (as defined in the Purchase Contract Agreement) is greater than or A-1 57 equal to $____ (the "Threshold Appreciation Price"), ________ of a Share per Purchase Contract, (b) if the Average Trading Price is less than the Threshold Appreciation Price but is greater than the Stated Amount, a fractional Share per Purchase Contract equal to the Stated Amount divided by the Average Trading Price (rounded to the nearest 1/10,000th of a share or, if there is no nearest 1/10,000th of a share, rounded downward to the nearest 1/10,000th of a share) and (c) if the Average Trading Price is less than or equal to the Stated Amount, one Share per Purchase Contract, in each case subject to adjustment as provided in the Purchase Contract Agreement. No fractional Shares will be issued upon settlement of Purchase Contracts, but instead of issuing any fractional interest the Company shall make a cash payment as provided in the Purchase Contract Agreement. The purchase price for the Shares purchased pursuant to each Purchase Contract shall be paid by application of payments received by the Company on the Stock Purchase Date from the Collateral Agent pursuant to the Pledge Agreement in respect of the principal of the Pledged Securities to secure the obligations of the Holder under such Purchase Contract. The Company shall not be obligated to issue any Shares in respect of a Purchase Contract or deliver any certificates therefor to the Holder unless it shall have received payment in full of the aggregate purchase price for the Shares to be purchased thereunder in the manner herein set forth. The Purchase Contracts and the obligations and rights of the Company and the Holders thereunder shall immediately and automatically terminate, without the necessity of any notice or action by any Holder, the Purchase Contract Agent or the Company, if, on or prior to the Stock Purchase Date, a Termination Event shall have occurred. Upon and after the occurrence of a Termination Event, the Collateral Agent shall release the Pledged Securities from the Pledge. The Units shall thereafter represent the right to receive the Pledged Securities forming a part of such Units in accordance with the provisions of the Purchase Contract Agreement and the Pledge Agreement. The Company shall pay, on each ___________, _____________, __________ and ___________, commencing ________ __, ____ (each, a "Quarterly Payment Date"), in respect of each Purchase Contract evidenced hereby, a fee (the "Contract Fee") accruing on the Stated Amount of such Unit from and including the date of first issuance of the Units at a rate per annum equal to ____% (the "Contract Fee Rate") (computed on the basis of a 360-day year of twelve 30-day months and subject to deferral at the option of the Company as described in the Purchase Contract Agreement). Contract Fees will be payable at the office of the Purchase Contract 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 Unit Register. The Company shall have the right, at any time prior to the Stock Purchase Date, to defer the payment of any or all of the Contract Fees otherwise payable on any Quarterly Payment Date, but only if the Company shall give the Holders and the Purchase Contract Agent written notice of its election to defer such payment (specifying the amount to be deferred) as provided in the Purchase Contract Agreement. Any Contract Fees so deferred shall bear additional Contract Fees thereon at the rate of _____ per annum (and computed on the basis of a 360-day year of twelve 30-day months), compounding on each succeeding Quarterly Payment Date, until paid in full. Deferred Contract Fees (and additional Contract Fees accrued thereon) shall be due on the next succeeding Quarterly 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 Stock Purchase Date. Pursuant to the Pledge Agreement, the Pledged Securities constituting part of each Unit evidenced hereby have been pledged to the Collateral Agent, for the benefit of the Company, to secure the obligations of the Holder under the Purchase Contract comprising a portion of such Unit. A-2 58 Subject to and upon compliance with the provisions of the Purchase Contract Agreement at the option of the Holder thereof, Purchase Contracts underlying Units having an aggregate Stated Amount equal to $__________ per Unit 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 Unit Certificate, the Holder of this Unit Certificate shall deliver this Unit Certificate to the Purchase Contract 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 per Unit 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 Quarterly Payment Date deferred at the option of the Company pursuant to the Purchase Contract Agreement and remaining unpaid as of such immediately preceding Quarterly 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 Quarterly Payment Date to the opening of business on such Quarterly Payment Date, an amount equal to the sum of (x) the Contract Fees payable on such Quarterly Payment Date with respect to such Purchase Contracts plus (y) the interest with respect to the related Underlying Securities payable on such Quarterly Payment Date. Upon Early Settlement of Purchase Contracts by a Holder of the related Units, the Pledged Securities underlying such Units shall be released from the Pledge as provided in the Pledge Agreement and the Holder shall be entitled to receive, a number of Shares on account of each Purchase Contract forming part of a Unit 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 transfer of any Unit Certificate will be registered and Unit Certificates may be exchanged as provided in the Purchase Contract Agreement. The Unit 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 Purchase Contract Agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Unless a Holder elects Collateral Substitution, Early Settlement or Merger Early Settlement, for so long as the Purchase Contract underlying a Unit remains in effect, such Unit shall not be separable into its constituent parts, and the rights and obligations of the Holder of such Unit in respect of the Pledged Securities and Purchase Contract constituting such Unit may be transferred and exchanged only as an integrated Unit. Upon registration of transfer of this Unit Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee) by the terms of the Purchase Contracts evidenced hereby and by the Pledge Agreement, and the transferor shall be released from such obligations. The Company covenants and agrees, and the Holder, by its acceptance hereof, likewise covenants and agrees, to be bound by the provisions of this paragraph. The Holder of this Unit Certificate, by its acceptance hereof, irrevocably authorizes the Purchase Contract Agent to enter into and perform the related Purchase A-3 59 Contracts evidenced hereby on its behalf as its attorney-in-fact, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform its obligations under such Purchase Contracts, consents to the provisions of the Principal Agreements, irrevocably authorizes and directs the Purchase Contract Agent to enter into the Pledge Agreement on its behalf as its attorney-in-fact, and consents to and agrees to be bound by the Pledge evidenced hereby pursuant to the Pledge Agreement. Subject to certain exceptions, the provisions of the Principal Agreements may be amended with the consent of the Holders of at least a majority of the Outstanding Units. THE PURCHASE CONTRACTS SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF. The Company, the Purchase Contract Agent and any agent of the Company or the Purchase Contract Agent may treat the Person in whose name this Unit Certificate is registered as the owner of the Units evidenced hereby for the purpose of receiving payments of distributions or interest on the Pledged Securities, receiving the rights and performing the obligations under 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 Purchase Contract Agent nor any such agent shall be affected by notice to the contrary. THE PURCHASE CONTRACTS SHALL NOT, PRIOR TO THE SETTLEMENT THEREOF, ENTITLE THE HOLDER TO ANY OF THE RIGHTS OF A HOLDER OF COMMON SHARES. Copies of the Principal Agreements are available for inspection at the offices of the Purchase Contract Agent. Unless the certificate of authentication hereon has been executed by the Purchase Contract Agent by manual signature, this Unit Certificate shall not be entitled to any benefit under the Principal Agreements or be valid or obligatory for any purpose. A-4 60 IN WITNESS WHEREOF, the Company and the Holder hereby agree to their respective obligations under the Purchase Contracts evidenced by this instrument, and the Holder hereby acknowledges that the Pledged Securities evidenced by this instrument are subject to the Pledge under the Pledge Agreement. XO COMMUNICATIONS, INC. By: --------------------------------- Attest: ----------------------------- HOLDER SPECIFIED ABOVE By: , ---------------------- as Attorney-in-Fact of such Holder By: -------------------------------- Dated: Purchase Contract Agent's Certificate of Authentication This is one of the Unit Certificates referred to in the within mentioned Purchase Contract Agreement. , - -------------------------- as Purchase Contract Agent By: -------------------------------- A-5 61 SETTLEMENT INSTRUCTIONS The undersigned Holder directs that a certificate for Shares deliverable upon settlement on or after the Stock Purchase Date of the Purchase Contracts underlying the number of Units evidenced by this Unit Certificate be registered in the name of, and delivered, together with a check in payment for any fractional share, to the undersigned at the address indicated below unless a different name and address have been indicated below. If shares are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto. Dated: ----------------------------------------------------------------------- Signature* - ----------------------------------------------------------------------------------------------------------- If shares are to be registered in the name REGISTERED HOLDER of and delivered to a Person other than the Holder, please print such Person's name and Please print name and address of address: Registered Holder: - ----------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------- Name Name - ----------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------- - ----------------------- * Signature must be guaranteed by an eligible Guarantor Institution (banks, stockbrokers, savings and loan associations and credit unions) with membership in an approved signature medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if Shares are to be delivered other than to, and in the name of, the registered Holder. A-6 62 - ----------------------------------------------------------------------------------------------------------- If shares are to be registered in the name REGISTERED HOLDER of and delivered to a Person other than the Holder, please print such Person's name and Please print name and address of address: Registered Holder: - ----------------------------------------------------------------------------------------------------------- Address Address - ----------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------- Social Security or other Taxpayer Identification Number, if any - ----------------------------------------------------------------------------------------------------------- A-7 63 REGISTERED HOLDER If shares are to be registered in the name of and delivered to a Person other than the Holder, Please print name and address of Registered please print such Person's name and address: Holder: Name Name Address Address Social Security or other Taxpayer Identification Number, if any A-8 64 ELECTION TO SETTLE EARLY The undersigned Holder directs that a certificate for Shares deliverable upon settlement on or after the Early Settlement Date or the Merger Early Settlement Date of the Purchase Contracts underlying the number of Units evidenced by this Unit Certificate be registered in the name of, and delivered to the undersigned at the address indicated below unless a different name and address have been indicated below. If shares are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto. Dated: ----------------------------------------------------------------------- Signature* - ----------------------------------------------------------------------------------------------------------- If shares are to be registered in the name REGISTERED HOLDER of and delivered to a Person other than the Holder, please print such Person's name and Please print name and address of address: Registered Holder: - ----------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------- Name Name - ----------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------- Address Address - ----------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------- Social Security or other Taxpayer Identification Number, if any - ----------------------------------------------------------------------------------------------------------- - ----------------------------- * Signature must be guaranteed by an eligible Guarantor Institution (banks, stockbrokers, savings and loan associations and credit unions) with membership in an approved signature medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if Shares are to be delivered other than to, and in the name of, the registered Holder. 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