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EXHIBIT 4.14
FORM OF STOCK
PURCHASE CONTRACT AGREEMENT
AIRTOUCH COMMUNICATIONS, INC.
AND
[PURCHASE CONTRACT AGENT]
DATED AS OF ___________
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TABLE OF CONTENTS
PAGE
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PARTIES
RECITALS
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions
Section 102. Compliance Certificates and Opinions
Section 103. Form of Documents Delivered to Agent
Section 104. Acts of Holders; Record Dates
Section 105. Notices, etc , to Agent and the Company
Section 106. Notice to Holders; Waiver
Section 107. Effect of Headings and Table of Contents
Section 108. Successors and Assigns
Section 109. Separability Clause
Section 110. Benefits of Agreement
Section 111. Governing Law
Section 112. Legal Holidays
Section 113. Counterparts
Section 114. Inspection of Agreement
ARTICLE TWO
Security Certificate Forms
Section 201. Forms of Security Certificates Generally
Section 202. Form of Agent's Certificate of Authentication
ARTICLE THREE
The Securities
Section 301. Title and Terms; Denominations
Section 302. Rights and Obligations Evidenced by the Security Certificates
Section 303. Execution, Authentication, Delivery and Dating
Section 304. Temporary Security Certificates
Section 305. Registration; Registration of Transfer and Exchange
Section 306. Mutilated, Destroyed, Lost and Stolen Security Certificates
Section 307. Persons Deemed Owners
Section 308. Cancellation
Section 309. Securities Not Separable
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ARTICLE FOUR
The Pledged Securities
Section 401. Payment of Distributions; Distributions Rights Preserved
Section 402. Transfer of Pledged Securities Upon Occurrence of Termination Event
ARTICLE FIVE
The Purchase Contracts
Section 501. Purchase of Shares of Common Stock
Section 502. Contract Fees
Section 503. Deferral of Payment Dates For Contract Fee
Section 504. Payment of Purchase Price
Section 505. Issuance of Shares of Common Stock
Section 506. Adjustment of Settlement Rate
Section 507. Notice of Adjustments and Certain Other Events
Section 508. Termination Event; Notice
Section 509. Early Settlement
Section 510. No Fractional Shares
Section 511. Charges and Taxes
ARTICLE SIX
Remedies
Section 601. Unconditional Right of Holders to Receive Contract Fee
Section 602. Restoration of Rights and Remedies
Section 603. Rights and Remedies Cumulative
Section 604. Delay or Omission Not Waiver
Section 605. Undertaking for Costs
Section 606. Waiver of Stay or Extension Laws
ARTICLE SEVEN
The Agent
Section 701. Certain Duties and Responsibilities
Section 702. Notice of Default
Section 703. Certain Rights of Agent
Section 704. Not Responsible for Recitals or Issuance of Securities
Section 705. May Hold Securities
Section 706. Money Held in Trust
Section 707. Compensation and Reimbursement
Section 708. Corporate Agent Required; Eligibility
Section 709. Resignation and Removal; Appointment of Successor
Section 710. Acceptance of Appointment by Successor
Section 711. Merger, Conversion, Consolidation or Succession to Business
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Section 712. Preservation of Information; Communications to Holders
Section 713. No Obligations of Agent
Section 714. Tax Compliance
ARTICLE EIGHT
Supplemental Agreements
Section 801. Supplemental Agreements Without Consent of Holders
Section 802. Supplemental Agreements with Consent of Holders
Section 803. Execution of Supplemental Agreements
Section 804. Effect of Supplemental Agreements
Section 805. Reference to Supplemental Agreements
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance
Section 901. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions
Section 902. Rights and Duties of Successor Corporation
Section 903. Opinion of Counsel to Agent
ARTICLE TEN
Covenants
Section 1001. Performance Under Purchase Contracts
Section 1002. Maintenance of Office or Agency
Section 1003. Company to Reserve Common Stock
Section 1004. Covenants as to Common Stock
Section 1005. Statements of Officers of the Company as to Default
TESTIMONIUM
SIGNATURES
EXHIBIT A Form of Security Certificate
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PURCHASE CONTRACT AGREEMENT, dated as of ________________,
199___, between AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation (the
"Company"), and [PURCHASE CONTRACT AGENT], acting as purchase contract agent
for the Holders of Securities from time to time (the "Agent").
RECITALS
A. The Company has duly authorized the execution and delivery of this
Agreement and the Security Certificates evidencing the Securities.
B. All things necessary to make the Company's obligations under the
Securities, when the Security Certificates are executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the
Agent, as in this Agreement provided, the valid obligations of the Company,
and to constitute these presents a valid agreement of the Company, in
accordance with its terms, have been done.
WITNESSETH: For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE 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:
(1) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular; and
(2) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Person named as the "Agent" in the first
paragraph of this instrument until a successor Agent shall have become
such pursuant to the applicable provisions of this Agreement, and
thereafter
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"Agent" shall mean the Person who is then the Agent hereunder.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
agreements supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Applicable Market Value" has the meaning specified in Section
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 Agent.
"Business Day" means any day that is not a Saturday, Sunday or
a day on which the NYSE or banking institutions or trust companies in
the City of New York are authorized or obligated by law or executive
order to be closed.
"Closing Price" has the meaning specified in Section 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.
"Common Stock" means the Common Stock, par value $0.01 per
share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such,
and thereafter "Company" shall mean such successor.
"Contract Fee" means the fee payable by the Company in respect
of each Purchase Contract, equal to _% per annum of the Stated Amount,
accruing from ____, 199__, computed on the basis of the actual number
of days elapsed in a year of 365 or 366 days, as the case may be, plus
any additional fees accrued pursuant to Section 503.
"Corporate Trust Office" means the principal office of the
Agent in the Borough of Manhattan, The City of New York, at which at
any particular time its corporate trust business shall be
administered, which office at the date hereof is located at ______,
New York, New York .
"Current Market Price" has the meaning specified in Section
506(a)(8).
"Depositary" means a clearing agency registered under the
Exchange Act that is designated to act as Depositary for the
Securities as contemplated by Section 305.
"Early Settlement" has the meaning specified in Section
509(a).
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"Early Settlement Amount" has the meaning specified in Section
509(a).
"Early Settlement Date" has the meaning specified in Section
509(a).
"Early Settlement Rate" has the meaning specified in Section
509(b).
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to
time.
"Excess Pledged Securities" has the meaning specified in
Section 402.
"Expiration Date" has the meaning specified in Section 104.
"Expiration Time" has the meaning specified in Section
506(a)(6).
"Final Settlement Date" means ____________, 199___.
"Final Settlement Fund" has the meaning specified in Section
505.
"Global Security Certificate" means a Security Certificate
that evidences all or part of the Securities and is registered in the
name of a Depositary or a nominee thereof.
"Holder," when used with respect to a Security Certificate (or
a Security), means a Person in whose name the Security evidenced by
such Security Certificate (or the Security Certificate evidencing such
Security) is registered in the Security Register.
"Issuer Order" or "Issuer Request" means a written order or
request signed in the name of the Company by its Chairman of the
Board, any Vice Chairman, its President or a Vice President and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Agent.
"NYSE" has the meaning specified in Section 501.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, any Vice Chairman, the President or any Vice
President and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Company and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company.
"Outstanding Securities" means, as of the date of
determination, all Securities evidenced by then Outstanding Security
Certificates, except:
(i) If a Termination Event has occurred, Securities for which
the underlying Pledged Securities have been theretofore
deposited with the Agent in trust for the Holders of
such Securities; and
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(ii) On and after the applicable Early Settlement Date,
Securities as to which the Holder has elected to effect
Early Termination of the related Purchase Contracts;
provided, however, that in determining whether the
Holders of the requisite number of Securities have given
any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the
Company or any Affiliate of the Company shall be
disregarded and deemed not to be outstanding, except
that, in determining whether the Agent shall be protected
in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities
which the Agent knows to be so owned shall be so
disregarded. Securities so owned which have been pledged
in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Agent the
pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any Affiliate
of the Company.
"Outstanding Security Certificates" means, as of the date of
determination, all Security Certificates theretofore authenticated,
executed and delivered under this Agreement, except:
(i) Security Certificates theretofore cancelled by the Agent
or delivered to the Agent for cancellation; and
(ii) Security Certificates in exchange for or in lieu of which
other Security Certificates have been authenticated,
executed on behalf of the Holder and delivered pursuant
to this Agreement, other than any such Security
Certificate in respect of which there shall have been
presented to the Agent proof satisfactory to it that such
Security Certificate is held by a bona fide purchaser in
whose hands the Securities evidenced by such Security
Certificate are valid obligations of the Company.
"Payment Date" means each ____________and____________,
commencing______, 19___.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Pledge" means the pledge under the Pledge Agreement of the
Pledged Securities constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, among the Company, the Collateral Agent and the Agent, on
its own behalf and as attorneyinfact for the Holders from time to time
of the Securities.
"Pledged Securities" means [______________________________].
"Predecessor Security Certificate" of any particular Security
Certificate means every previous Security Certificate evidencing all
or a portion of the rights and obligations of the Holder under the
Securities evidenced thereby; and, for the purposes of this
definition, any Security Certificate authenticated and delivered under
Section 306 in exchange for or in lieu of a mutilated, destroyed, lost
or stolen Security Certificate shall
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be deemed to evidence the same rights and obligations of the Holder as
the mutilated, destroyed, lost or stolen Security Certificate.
"Purchase Contract," when used with respect to any Security,
means the contract obligating the Company to sell and the Holder of
such Security to purchase Common Stock on the terms and subject to the
conditions set forth in Article Five hereof.
"Purchased Shares" has the meaning specified in Section
506(a)(6).
"Record Date" for the distributions and Contract Fees payable
on any Payment Date means the __________ or ________________ (whether
or not a Business Day), as the case may be, next preceding such
Payment Date.
"Reorganization Event" has the meaning specified in Section
506(b).
"Responsible Officer," when used with respect to the Agent,
means any officer of the Agent assigned by the Agent to administer its
corporate trust matters.
"Security" means the collective rights and obligations of a
Holder of a Security Certificate in respect of Pledged Securities with
a principal amount or liquidation preference equal to the Stated
Amount, subject to the Pledge thereof, and a Purchase Contract.
"Security Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of
Securities specified on such certificate.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Settlement Rate" has the meaning specified in Section 501.
"Stated Amount" means $ ________.
"Termination Date" means the date, if any, on which a
Termination Event occurs.
"Termination Event" means the occurrence of any of the
following events: (i) at any time on or prior to the Final Settlement
Date, a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization of
the Company under the United States Bankruptcy Code or any other
similar applicable Federal or State law, and, unless such decree or
order shall have been entered within 60 days prior to the Final
Settlement Date, such decree or order shall have continued
undischarged and unstayed for a period of 60 days; or (ii) a decree or
order of a court having jurisdiction in the premises for the
appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of the Company or of its property, or for the
winding up or liquidation of its affairs, shall have been entered,
and, unless such decree or order shall have been entered within 60
days prior to the Final Settlement Date, such decree or order shall
have continued undischarged and unstayed for a period of 60 days, or
(iii) at any time on or prior to the Final Settlement Date the Company
shall institute proceedings to be adjudicated a bankrupt, or shall
consent to the filing of a
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bankruptcy proceeding against it, or shall file a petition or answer
or consent seeking reorganization under the United States Bankruptcy
Code or any other similar applicable Federal or State law, or shall
consent to the filing of any such petition, or shall consent to the
appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of it or of its property, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in
Section 501.
"TIA" means the Trust Indenture Act of 1939, as amended, or
any successor statute.
"Trading Day" has the meaning specified in Section 501.
"Underwriting Agreement" means the Underwriting Agreement
dated ___________, 199____ between the Company and ______________,
as representatives of the several Underwriters named therein.
"Vice President" means any vice president, whether or not
designated by a number or a word or words added before or after the
title "vice president."
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Agent to take any action under any
provision of this Agreement, the Company shall furnish to the Agent an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Agreement relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Agreement relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
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Section 103. Form of Documents Delivered to Agent.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Agreement to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly appointed
in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to
the Agent and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Agreement and (subject to Section 701) conclusive
in favor of the Agent and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by
a certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing
the same, may also be proved in any other manner which the Agent deems
sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
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(d) Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security Certificate evidencing
such Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Security
Certificate.
(e) The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken
by Holders of Securities. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and
no other Holders, shall be entitled to take the relevant action, whether or
not such Holders remain Holders after such record date; provided that no
such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite number of
Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent the Company from setting a new record date
for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite number of
Outstanding Securities on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Agent in
writing and to each Holder of Securities in the manner set forth in Section
106.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day; provided that no
such change shall be effective unless notice of the proposed new Expiration
Date is given to the Agent in writing, and to each Holder of Securities in the
manner set forth in Section 106, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the Company shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Section 105. Notices, etc., to Agent and the Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Agreement to
be made upon, given or furnished to, or filed with,
(1) the Agent by any Holder or by the Company shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed in writing and personally delivered or mailed,
first class postage prepaid, to the Agent at___________, Attention: Stock
Transfer Department, or at any other address previously furnished in
writing by the Agent to the Holders and the Company, or
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(2) the Company by the Agent or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed in writing and personally delivered or mailed,
firstclass postage prepaid, to the Company at One California Street, San
Francisco, California 94111, Attention: Senior Vice President, Legal, or at
any other address previously furnished in writing to the Agent by the
Company.
Section 106. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Agent, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Agent
shall constitute a sufficient notification for every purpose hereunder.
Section 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 108. 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 109. Separability Clause.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
Section 110. Benefits of Agreement.
Nothing in this Agreement or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefits or any legal or equitable right, remedy
or claim under this Agreement. The Holders from time to time shall be
beneficiaries of this Agreement and shall be bound by all of the terms and
conditions hereof and of the Securities evidenced by their Security
Certificates by their acceptance of delivery thereof.
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Section 111. Governing Law.
This Agreement and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
Section 112. Legal Holidays.
In any case where any Payment Date, any Early Settlement Date or the
Final Settlement Date shall not be a Business Day, then (notwithstanding any
other provision of this Agreement or of the Securities) payment in respect of
distributions on Pledged Securities or Contract Fees shall not be made,
Purchase Contracts shall not be performed and Early Settlement shall not be
effected on such date, but such payments shall be made, or the Purchase
Contracts shall be per formed or Early Settlement effected, as applicable, on
the next succeeding Business Day with the same force and effect as if made on
such Payment Date, Early Settlement Date or Final Settlement Date, as the case
may be; provided, that no interest shall accrue or be payable by the Company or
any Holder for the period from and after any such Payment Date, Early
Settlement Date or Final Settlement Date, as the case may be.
Section 113. 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 114. 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
SECURITY CERTIFICATE FORMS
Section 201. Forms of Security Certificates Generally.
The Security Certificates (including the form of Purchase Contracts
forming part of the Securities evidenced thereby) shall be in substantially the
form set forth in Exhibit A hereto, with such letters, numbers or other marks
of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Securities are listed or Depositary therefor,
or as may, consistently herewith, be determined by the officers of the Company
executing such Security Certificates, as evidenced by their execution of the
Security Certificates.
The definitive Security Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing the Security
Certificates, consistent with the provisions of this Agreement, as evidenced by
their execution thereof.
Every Global Security Certificate authenticated, executed on behalf of
the Holders and delivered hereunder shall bear a legend in substantially the
following form:
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THIS SECURITY CERTIFICATE IS A GLOBAL SECURITY CERTIFICATE WITHIN THE MEANING
OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY CERTIFICATE MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY CERTIFICATE REGISTERED, AND
NO TRANSFER OF THIS SECURITY CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED,
IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT.
Section 202. Form of Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the
Securities shall be in substantially the form set forth on the form of the
Security Certificates.
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms; Denominations.
The aggregate number of Securities evidenced by Security Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to_____________ (subject to increase up to a maximum of
___________________ to the extent the overallotment option of the underwriters
under the Underwriting Agreement is exercised), except for Security
Certificates authenticated, executed and delivered upon registration of
transfer of, in exchange for, or in lieu of, other Security Certificates
pursuant to Section 304, 305, 306, 509 or 805.
The Security Certificates shall be issuable only in registered form
and only in denominations of a single Security and any integral multiple
thereof.
Section 302. Rights and Obligations Evidenced by the Security Certificates.
Each Security Certificate shall evidence the number of Securities
specified therein, with each such Security representing the ownership by the
Holder thereof of Pledged Securities with a principal amount or liquidation
preference equal to the Stated Amount, subject to the Pledge of such Pledged
Securities by such Holder pursuant to the Pledge Agreement, and the rights and
obligations of the Holder under one Purchase Contract. Prior to the purchase,
if any, of shares of Common Stock under the Purchase Contracts, the Securities
shall not entitle the Holders to any of the rights of a holder of shares of
Common Stock, including, without limitation, the right to vote or receive any
dividends or other payments or to consent or to receive notice as stockholders
in respect of the meetings of stockholders or for the election of directors of
the Company or for any other matter, or any other rights whatsoever as
stockholders of the Company, except to the extent otherwise expressly provided
in this Agreement.
Section 303. Execution, Authentication, Delivery and Dating.
Upon the execution and delivery of this Agreement, and at any time and
from time to time thereafter, the Company may deliver Security Certificates
executed by the Company to the
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Agent for authentication, execution on behalf of the Holders and delivery,
together with its Issuer Order for authentication of such Security
Certificates, and the Agent in accordance with such Issuer Order shall
authenticate, execute on behalf of the Holder and deliver such Security
Certificates.
The Security Certificates shall be executed on behalf of the Company
by its Chairman of the Board, its Vice Chairman of the Board, its President or
one of its Vice Presidents, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Security Certificates may be manual or
facsimile.
Security Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Security
Certificates or did not hold such offices at the date of such Security
Certificates.
No Purchase Contract underlying a Security evidenced by a Security
Certificate shall be valid until such Security Certificate has been executed on
behalf of the Holder by the manual signature of an authorized signatory of the
Agent, as such Holder's attorney-in-fact. Such signature by an authorized
signatory of the Agent shall be conclusive evidence that the Holder of such
Security Certificate has entered into the Purchase Contracts underlying the
Securities evidenced by such Security Certificate.
Each Security Certificate shall be dated the date of its
authentication.
No Security Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on
such Security Certificate a certificate of authentication substantially in the
form provided for herein executed by an authorized signatory of the Agent by
manual signature, and such certificate upon any Security Certificate shall be
conclusive evidence, and the only evidence, that such Security Certificate has
been duly authenticated and delivered hereunder.
Section 304. Temporary Security Certificates.
Pending the preparation of definitive Security Certificates, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holders, and deliver, in lieu of such
definitive Security Certificates, temporary Security Certificates which are in
substantially the form set forth in Exhibit A hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by
the rules of any securities exchange on which the Securities are listed, or as
may, consist ently herewith, be determined by the officers of the Company
executing such Security Certificates, as evidenced by their execution of the
Security Certificates.
If temporary Security Certificates are issued, the Company will cause
definitive Security Certificates to be prepared without unreasonable delay.
After the preparation of definitive Security Certificates, the temporary
Security Certificates shall be exchangeable for definitive Security
Certificates upon surrender of the temporary Security Certificates at the
Corporate Trust Of fice, at the expense of the Company and without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Security Certificates, the Company shall execute and
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deliver to the Agent, and the Agent shall authenticate, execute on behalf of
the Holder, and deliver in exchange therefor, one or more definitive Security
Certificates of authorized denominations and evidencing a like number of
Securities as the temporary Security Certificate or Security Certificates so
surrendered. Until so exchanged, the temporary Security Certificates shall in
all respects evidence the same benefits and the same obligations with respect
to the Securities evidenced thereby as definitive Security Certificates.
Section 305. Registration; Registration of Transfer and Exchange.
The Agent shall keep at the Corporate Trust Office a register (the
register maintained in such office being herein referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Agent shall provide for the registration of Security
Certificates and of transfers of Security Certificates (the Agent, in such
capacity, the "Security Registrar").
Upon surrender for registration of transfer of any Security
Certificate at the Corporate Trust Office, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf of
the designated transferee or transferees, and deliver, in the name of the
designated transferee or transferees, one or more new Security Certificates of
any authorized denominations and evidencing a like number of Securities.
At the option of the Holder, Security Certificates may be exchanged
for other Security Certificates, of any authorized denominations and evidencing
a like number of Securities, upon surrender of the Security Certificates to be
exchanged at the Corporate Trust Office. Whenever any Security Certificates
are so surrendered for exchange, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver the Security Certificates which the Holder making the exchange is
entitled to receive.
All Security Certificates issued upon any registration of transfer or
exchange of a Security Certificate shall evidence the ownership of the same
number of Securities and be entitled to the same benefits and subject to the
same obligations, under this Agreement as the Securities evidenced by the
Security Certificate surrendered upon such registration of transfer or
exchange.
Every Security Certificate presented or surrendered for registration
of transfer or for exchange shall (if so required by the Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Agent duly executed, by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Security Certificate, but the Company and the Agent may require
payment from the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Security Certificates, other than any exchanges
pursuant to Sections 306 and 805 not involving any transfer. Notwithstanding
the foregoing, the Company shall not be obligated to execute and deliver to the
Agent, and the Agent shall not be obligated to authenticate, execute on behalf
of the Holder and deliver any Security Certificate presented or surrendered for
registration of transfer or for exchange on or after the Final Settlement Date
or the Termination Date. In lieu of delivery of a new Security Certificate,
upon satisfaction of the applicable conditions specified above in this Section
and receipt of appropriate registration or transfer instructions from such
Holder, the Agent shall (i) if the Final Settlement Date has occurred, deliver
the shares of Common Stock issuable in respect of the Purchase
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Contracts forming a part of the Securities evidenced by such Security
Certificate, or (ii) if a Termination Event shall have occurred prior to the
Final Settlement Date, transfer the principal amount or liquidation amount, as
the case may be, 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 (1), (2), (3) and (4) below shall apply only
to Global Security Certificates:
(1) Each Global Security Certificate authenticated and executed on behalf of
the Holders under this Agreement shall be registered in the name of the
Depositary designated for such Global Security Certificate or a nominee
thereof and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security Certificate shall constitute a
single Security Certificate for all purposes of this Agreement.
(2) Notwithstanding any other provision in this Agreement, no Global Security
Certificate may be exchanged in whole or in part for Security Certificates
registered, and no transfer of a Global Security Certificate in whole or in
part may be registered, in the name of any Person other than the Depositary
for such Global Security Certificate or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security Certificate or (ii) has
ceased to be a clearing agency registered under the Exchange Act or (b)
there shall have occurred and be continuing a default by the Company in
respect to its obligations under one or more Purchase Contracts.
(3) Subject to Clause (2) above, any exchange of a Global Security Certificate
for other Security Certificates may be made in whole or in part, and all
Security Certificates issued in exchange for a Global Security Certificate
or any portion thereof shall be registered in such names as the Depositary
for such Global Security Certificate shall direct.
(4) Every Security Certificate authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security
Certificate or any portion thereof, whether pursuant to this Section,
Section 304, 306, 509 or 805 or otherwise, shall be authenticated, executed
on behalf of the Holders and delivered in the form of, and shall be, a
Global Security Certificate, unless such Security Certificate is registered
in the name of a Person other than the Depositary for such Global Security
Certificate or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Security Certificates.
If any mutilated Security Certificate is surrendered to the Agent, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, a new Security Certificate, evidencing the same number of Securities
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i) evidence
to their satisfaction of the destruction, loss or theft of any Security
Certificate, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of any of them harmless, then, in the absence
of notice to the Company or the Agent that such Security Certificate has been
acquired by a bona fide purchaser, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such
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destroyed, lost or stolen Security Certificate, a new Security Certificate,
evidencing the same number of Securities and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder, and deliver to the Holder, a
Security Certificate on or after the Final Settlement Date or the Termination
Date. In lieu of delivery of a new Security Certificate, upon satisfaction of
the applicable conditions specified above in this Section and receipt of
appropriate registration or transfer instructions from such Holder, the Agent
shall (i) if the Final Settlement Date has occurred, deliver the shares of
Common Stock issuable in respect of the Purchase Contracts forming a part of
the Securities evidenced by such Security Certificate, or (ii) if a Termination
Event shall have occurred prior to the Final Settlement Date, transfer the
principal amount of the 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 Security Certificate under this Section,
the Company and the Agent may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Agent) connected therewith.
Every new Security Certificate issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security Certificate shall constitute an
original additional contractual obligation of the Company and of the Holder,
whether or not the destroyed, lost or stolen Security Certificate shall be at
any time enforceable by anyone, and shall be entitled to all the benefits and
be subject to all the obligations of this Agreement equally and proportionately
with any and all other Security Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or settlement of mutilated, destroyed, lost or stolen Security
Certificates.
Section 307. Persons Deemed Owners.
Prior to due presentment of a Security Certificate for registration of
transfer, the Company and the Agent, and any agent of the Company or the Agent,
may treat the Person in whose name such Security Certificate is registered as
the owner of the Securities evidenced thereby, for the purpose of receiving
payments of distributions on the Pledged Securities, receiving payments of
Contract Fees, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not the payment of distributions on the Pledged
Securities or any Contract Fee payable in respect of the Purchase Contracts
constituting a part of the Securities evidenced thereby shall be overdue and
notwithstanding any notice to the contrary, and neither the Company nor the
Agent, nor any agent of the Company or the Agent, shall be affected by notice
to the contrary.
Notwithstanding the foregoing, with respect to any Global Security
Certificate, nothing herein shall prevent the Company, the Agent or any agent
of the Company or the Agent, from giving effect to any written certification,
proxy or other authorization furnished by any Depositary (or its nominee), as a
Holder, with respect to such Global Security Certificate or impair, as between
such Depositary and owners of beneficial interests in such Global Security
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Certificate, the operation of customary practices governing the exercise of
rights of such Depositary (or its nominee) as Holder of such Global Security
Certificate.
Section 308. Cancellation.
All Security Certificates surrendered for delivery of shares of Common
Stock on or after the Final Settlement Date, transfer of Pledged Securities
after the occurrence of a Termination Event or pursuant to an Early Settlement
or registration of transfer or exchange shall, if surrendered to any Person
other than the Agent, be delivered to the Agent and, if not already cancelled,
shall be promptly cancelled by it. The Company may at any time deliver to the
Agent for cancellation any Security Certificates previously authenticated,
executed and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Security Certificates so delivered shall, upon
Issuer Order, be promptly cancelled by the Agent. No Security Certificates
shall be authenticated, executed on behalf of the Holder and delivered in lieu
of or in exchange for any Security Certificates cancelled as provided in this
Section, except as expressly permitted by this Agreement. All cancelled
Security Certificates held by the Agent shall be disposed of as directed by
Issuer Order.
If the Company or any Affiliate of the Company shall acquire any
Security Certificate, such acquisition shall not operate as a cancellation of
such Security Certificate unless and until such Security Certificate is
delivered to the Agent cancelled or for cancellation.
Section 309. Securities Not Separable.
Notwithstanding anything contained herein or in the Security
Certificates to the contrary, for so long as the Purchase Contract underlying a
Security remains in effect such Security shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such
Security in respect of the Pledged Securities and Purchase Contracts
constituting such Security may be acquired, and may be transferred and
exchanged, only as a Security. Other than a Security Certificate evidencing a
Security, no Holder of a Security, or any transferee thereof, shall be entitled
to receive a certificate evidencing the ownership of Pledged Securities or the
rights and obligations of the Holder and the Company under a Purchase Contract
for so long as the Purchase Contract underlying the Security remains in effect.
ARTICLE FOUR
THE PLEDGED SECURITIES
Section 401. Payment of Distributions; Rights to Distributions Preserved.
Distributions on any Pledged Security which is paid on any Payment
Date shall, subject to receipt thereof by the Agent from the Collateral Agent
as provided by the terms of the Pledge Agreement, be paid to the Person in
whose name the Security Certificate (or one or more Predecessor Security
Certificates) of which such Pledged Security is a part is registered at the
close of business on the Record Date next preceding such Payment Date.
Each Security Certificate evidencing Pledged Securities delivered
under this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Security Certificate shall carry the rights to distributions
accrued and unpaid, and to accrue, which were carried by the Pledged Securities
underlying such other Security Certificate.
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In the case of any Security with respect to which Early Settlement of
the underlying Purchase Contract is effected on an Early Settlement Date after
any Record Date and on or prior to the next succeeding Payment Date,
distributions on the Pledged Securities underlying such Security otherwise
payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Early Settlement, and such distributions shall, subject to
receipt thereof by the Agent, be paid to the Person in whose name the Security
Certificate (or one or more Predecessor Security Certificates) is registered at
the close of business on the Record Date. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any Security
with respect to which Early Settlement of the underlying Purchase Contract is
effected on an Early Settlement Date, distributions 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 to the
Agent of the Pledged Securities underlying such Securities pursuant to the
terms of the Pledge Agreement, the Agent shall request transfer instructions
with respect to such Pledged Securities from each Holder of Securities by
written request mailed to such Holder at his address as it appears in the
Security Register, in respect of the Pledged Securities underlying the Security
Certificate held by such Holder. Upon surrender to the Agent of a Security
Certificate with such transfer instructions in proper form for transfer of the
Pledged Securities by Federal Reserve BankWire, book-entry transfer through the
facilities of the Depositary Trust Company, or other appropriate procedure, the
Agent shall transfer the Pledged Securities evidenced by such Security
Certificate to such Holder in accordance with such instructions. If a Security
Certificate is not duly surrendered to the Agent with appropriate transfer
instructions, the Agent shall hold the Pledged Securities evidenced by such
Security Certificate as custodian for the Holder of such Security Certificate.
Pledged Securities shall be transferred only in denominations of
$_____________ and integral multiples thereof. As promptly as practicable
following the occurrence of a Termination Event, the Agent shall determine the
excess of (i) the aggregate principal amount or liquidation preference, as the
case may be, of Pledged Securities underlying the Outstanding Securities over
(ii) the aggregate principal amount or liquidation preference, as the case may
be, of Pledged Securities in denominations of $____________ and integral
multiples thereof transferrable to Holders of record on the date of such
Termination Event (such excess being herein referred to as the "Excess Pledged
Securities"). As soon as practicable after transfer to the Agent of the
Pledged Securities underlying the Outstanding Securities as provided in the
Pledge Agreement, the Agent shall sell the Excess Pledged Securities to or
through one or more registered broker dealers at then prevailing prices. The
Agent shall deduct from the proceeds of such sales all commissions and other
out-of-pocket transaction costs incurred in connection with such sales of
Excess Pledged Securities and, until the net proceeds of such sale or sales
have been distributed to Holders of the Securities, the Agent shall hold such
proceeds in trust for the Holders of Securities. Each Holder shall be entitled
to receive a portion, if any, of such net proceeds in lieu of Pledged
Securities with a principal amount of less than $___________ determined by
multiplying the aggregate amount of such net proceeds by a fraction, the
numerator of which is the fraction of $_____________ in principal amount of
Pledged Securities to which such Holder would otherwise be entitled (after
taking into account all Securities then held by such Holder) and the
denominator of which is the aggregate principal amount of Excess Pledged
Securities.
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ARTICLE FIVE
THE PURCHASE CONTRACTS
Section 501. Purchase of Shares of Common Stock.
Each Purchase Contract shall obligate the Holder of the related
Security to purchase, and the Company to sell, on the Final Settlement Date at
a price equal to the Stated Amount, a number of shares of Common Stock equal to
the Settlement Rate, unless, on or prior to the Final Settlement Date, there
shall have occurred a Termination Event or an Early Settlement with respect to
the Security of which such Purchase Contract is a part. The "Settlement Rate"
is equal to (a) if the Applicable Market Value (as defined below) is greater
than $ ___(the "Threshold Appreciation Price"), ____________ of a share of
Common Stock per Purchase Contract, (b) if the Applicable Market Value is less
than or equal to the Threshold Appreciation Price but is greater than the
Stated Amount, a fractional share of Common Stock per Purchase Contract equal
to the Stated Amount divided by the Applicable Market Value (rounded upward or
downward to the nearest 1/10,000th of a share) and (c) if the Applicable Market
Value is less than or equal to the Stated Amount, one share of Common Stock per
Purchase Contract, in each case subject to adjustment as provided in Section
506. As provided in Section 510, no fractional shares of Common Stock will be
issued upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the twenty consecutive Trading Days ending
on the last Trading Day immediately preceding the Final Settlement Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The Nasdaq Stock Market, or, if the Common Stock is
not so reported, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company. A "Trading
Day" means a day on which the Common Stock (A) is not suspended from trading on
any national or regional securities exchange or association or over-the-
counter market at the close of business and (B) has traded at least once on the
national or regional securities exchange or association or over-the-counter
market that is the primary market for the trading of the Common Stock.
Each Holder of a Security Certificate evidencing Securities, by his
acceptance thereof, irrevocably authorizes the Agent to enter into and perform
the related Purchase Contracts on his behalf as his attorney-in-fact, agrees to
be bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions
hereof, irrevocably authorizes the Agent as his attorney-in-fact to enter into
and perform the Pledge Agreement on his behalf as his attorney-in-fact, and
consents to and agrees to be bound by the Pledge of the Pledged Securities
underlying such Security Certificate pursuant to the Pledge Agreement. Each
Holder of a Security, by his acceptance thereof, further irrevocably covenants
and agrees, that, to the extent and in the manner provided in Section 504 and
the Pledge Agreement, but subject to the terms thereof, payments in respect of
principal or redemption price
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of the Pledged Securities on the Final Settlement Date shall be paid by the
Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such payments.
Upon registration of transfer of a Security Certificate evidencing
Purchase Contracts, the transferee shall be bound (without the necessity of any
other action on the part of such transferee), under the terms of this
Agreement, the Purchase Contracts evidenced thereby and the Pledge Agreement
and the transferor shall be released from the obligations under the Purchase
Contracts evidenced by the Security Certificates so transferred. The Company
covenants and agrees, and each Holder of a Security Certificate, by his
acceptance thereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
Section 502. Contract Fees.
Subject to Section 503, the Company shall pay, on each Payment Date,
the Contract Fees payable in respect of each Purchase Contract to the Person in
whose name the Security Certificate (or one or more Predecessor Security
Certificates) evidencing such Purchase Contract is registered at the close of
business on the Record Date next preceding such Payment Date. The Contract Fee
will be payable at the office of the Agent in the City of New York maintained
for that purpose or, at the option of the Company, by check mailed to the
address of the Person entitled thereto at such address as it appears on the
Security Register.
Each Security Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any other Security
Certificate shall carry the rights to Contract Fees accrued and unpaid, and to
accrue, which were carried by the Purchase Contracts evidenced by such other
Security Certificate.
In the case of any Security with respect to which Early Settlement of
the underlying Purchase Contract is effected on an Early Settlement Date after
any Record Date and on or prior to the next succeeding Payment Date, Contract
Fees otherwise payable on such Payment Date shall be payable on such Payment
Date notwithstanding such Early Settlement, and such Contract Fees shall be
paid to the Person in whose name the Security Certificate evidencing such
Security (or one or more Predecessor Security Certificates) is registered at
the close of business on such Record Date. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any Security
with respect to which Early Settlement of the underlying Purchase Contract is
effected on an Early Settlement Date, Contract Fees that would otherwise be
payable after the Early Settlement Date with respect to the Purchase Contract
underlying such Security shall not be payable.
Section 503. Deferral of Payment Dates For Contract Fee.
The Company shall have the right, at any time prior to the Final
Settlement Date, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date, but only if the Company shall give the
Holders and the Agent written notice of its election to defer such payment
(specifying the amount to be deferred) at least ten Business Days prior to the
earlier of (i) the next succeeding Payment Date or (ii) the date the Company is
required to give notice of the Record Date or Payment Date with respect to
payment of such Contract Fee to the New York Stock Exchange or other applicable
self-regulatory organization or to Holders of the Securities, but in any event
not less than two Business Days prior to such Record Date. Any Contract Fees
so deferred shall bear additional Contract Fees thereon at the rate of per
annum set forth in
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Appendix _____ hereto (computed on the basis set forth in Appendix ____),
compounding on each succeeding Payment Date, until paid in full. Deferred
Contract Fees (and additional Contract Fees accrued thereon) shall be due on
the next succeeding Payment Date except to the extent that payment is deferred
pursuant to this Section. No Contract Fees may be deferred to a date that is
after the Final Settlement Date or, with respect to any particular Purchase
Contract, Early Settlement thereof.
Section 504. Payment of Purchase Price.
The purchase price for the shares of Common Stock purchased pursuant
to a Purchase Contract shall be paid by application of payments received by the
Company on the Final Settlement Date from the Collateral Agent pursuant to the
Pledge Agreement in respect of the principal or redemption price, as the case
may be, of the Pledged Securities Pledged to secure the obligations of the
relevant Holder under such Purchase Contract. Such application shall satisfy in
full the obligations under such Purchase Contract of the Holder of the Security
of which such Purchase Contract is a part. The Company shall not be obligated
to issue any shares of Common Stock in respect of a Purchase Contract or
deliver any certificates therefor to the Holder unless it shall have received
payment in full of the aggregate purchase price for the shares of Common Stock
to be purchased thereunder in the manner herein set forth.
Section 505. Issuance of Shares of Common Stock.
Unless a Termination Event shall have occurred on or prior to the
Final Settlement Date, on the Final Settlement Date, upon its receipt of
payment in full of the purchase price for the shares of Common Stock purchased
by the Holders pursuant to the foregoing provisions of this Article, and
subject to Section 506(b), the Company shall deposit with the Agent, for the
benefit of the Holders of the Outstanding Securities, one or more certificates
representing the shares of Common Stock registered in the name of the Agent (or
its nominee) as custodian for the Holders (such certificates for shares of
Common Stock, together with any dividends or distributions with respect
thereto, being hereinafter referred to as the "Final Settlement Fund") to which
the Holders are entitled hereunder. Subject to the foregoing, upon surrender
of a Security Certificate to the Agent on or after the Final Settlement Date,
together with settlement instructions thereon duly completed and executed, the
Holder of such Security Certificate shall be entitled to receive in exchange
therefor a certificate representing that number of whole shares of Common Stock
which such Holder is entitled to receive pursuant to the provisions of this
Article Five (after taking into account all Securities then held by such
Holder) together with cash in lieu of fractional shares as provided in Section
510 and any dividends or distributions with respect to such shares constituting
part of the Final Settlement Fund, but without any interest thereon, and the
Security Certificate so surrendered shall forthwith be cancelled. Such shares
shall be registered in the name of the Holder or the Holder's designee as
specified in the settlement instructions on the Security Certificate.
If any shares of Common Stock issued in respect of a Purchase Contract
are to be registered to a Person other than the Person in whose name the
Security Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Security Certificate
evidencing such Purchase Contractor has established to the satisfaction of the
Company that such tax either has been paid or is not payable.
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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 Common Stock, the Settlement Rate in effect
at the opening of business on the day following the date
fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be
increased by dividing such Settlement Rate by a fraction
of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the
date fixed for such determination and the denominator
shall be the sum of such number of shares and the total
number of shares constituting such dividend or other
distribu tion, such increase to become effective
immediately after the opening of business on the day
following the date fixed for such determination. For
the purposes of this paragraph (1), the number of
shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of
Common Stock. The Company will not pay any dividend or
make any distribution on shares of Common Stock held in
the treasury of the Company.
(2) In case the Company shall issue rights, options or
warrants to all holders of its Common Stock (not being
available on an equivalent basis to Holders of the
Securities upon settlement of the Purchase Contracts
underlying such Securities) entitling them, for a period
expiring within 45 days after the record date for the
determination of stockholders entitled to receive such
rights, options or warrants, to subscribe for or
purchase shares of Common Stock at a price per share
less than the Current Market Price per share of the
Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights, options or
warrants (other than pursuant to a dividend reinvestment
plan), the Settlement Rate in effect at the opening of
business on the day following the date fixed for such
determination shall be increased by dividing such
Settlement Rate by a fraction of which the numerator
shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed
for such determination plus the number of shares of
Common Stock which the aggregate of the offering price
of the total number of shares of Common Stock so offered
for subscription or purchase would purchase at such
Current Market Price and the denominator shall be the
number of shares of Common Stock outstanding at the
close of business on the date fixed for such
determination plus the number of shares of Common Stock
so offered for subscription or purchase, such increase
to become effective immediately after the opening of
business on the day following the date fixed for such
determination. For the purposes of this paragraph (2),
the number of shares of Common Stock at any time
outstanding shall not include shares held in the
treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock. The Company
shall not issue any such rights, options or warrants in
respect of shares of Common Stock held in the treasury
of the Company.
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(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common
Stock, the Settlement Rate in effect at the opening of
business on the day following the day upon which such
subdivision becomes effective shall be proportionately
increased, and, conversely, in case outstanding shares
of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the Settlement Rate in
effect at the opening of business on the day following
the day upon which such combination becomes effective
shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective
immediately after the opening of business on the day
following the day upon which such subdivision or
combination becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences
of its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in
paragraph (2) of this Section, any dividend or
distribution paid exclusively in cash and any dividend
or distribution referred to in paragraph (1) of this
Section), the Settlement Rate shall be adjusted so that
the same shall equal the rate determined by dividing the
Settlement Rate in effect immediately prior to the close
of business on the date fixed for the determination of
stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the Current
Market Price per share of the Common Stock on the date
fixed for such determination less the then fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution filed with the Agent) of the portion of
the assets or evidences of indebtedness so distributed
applicable to one share of Common Stock and the
denominator shall all be such Current Market Price per
share of the Common Stock, such adjustment to become
effective immediately prior to the opening of business
on the day following the date fixed for the
determination of stockholders entitled to receive such
distribution. In any case in which this paragraph (4)
is applicable, paragraph (2) of this Section shall not
be applicable.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash
(excluding any cash that is distributed in a
Reorganization Event to which Section 506(b) applies or
as part of a distribution referred to in paragraph (4)
of this Section) in an aggregate amount that, combined
together with (I) the aggregate amount of any other
distributions to all holders of its Common Stock made
exclusively in cash within the 12 months preceding the
date of payment of such distribution and in respect of
which no adjustment pursuant to this paragraph (5) or
paragraph (6) of this Section has been made and (II) the
aggregate of any cash plus the fair market value (as
determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution) of consideration payable in respect of
any tender or exchange offer by the Company or any of
its subsidiaries for all or any portion of the Common
Stock concluded within the 12 months preceding the date
of payment of such distribution and in respect of which
no adjustment pursuant to this paragraph (5) or
paragraph (6) of this Section has been made, exceeds 10%
of the
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product of the Current Market Price per share of the
Common Stock on the date for the determination of
holders of shares of Common Stock entitled to receive
such distribution times the number of shares of Common
Stock outstanding on such date, then, and in each such
case, immediately after the close of business on such
date for determination, the Settlement Rate shall be
increased so that the same shall equal the rate
determined by dividing the Settlement Rate in effect
immediately prior to the close of business on the date
fixed for determination of the stockholders en titled to
receive such distribution by a fraction (i) the
numerator of which shall be equal to the Current Market
Price per share of the Common Stock on the date fixed
for such determination less an amount equal to the
quotient of (x) the excess of such combined amount over
such 10% and (y) the number of shares of Common Stock
outstanding on such date for determination and (ii) the
denominator of which shall be equal to the Current
Market Price per share of the Common Stock on such date
for determination.
(6) In case a tender or exchange offer made by the Company
or any subsidiary of the Company for all or any portion
of the Common Stock shall expire and such tender or
exchange offer (as amended upon the expiration thereof)
shall require the payment to stockholders (based on the
acceptance (up to any maximum specified in the terms of
the tender or exchange offer) of Purchased Shares) of an
aggregate consideration having a fair market value (as
determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution) that combined together with (I) the
aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution), as of the expiration of such tender
or exchange offer, of consideration payable in respect
of any other tender or exchange offer, by the Company or
any subsidiary of the Company for all or any portion of
the Common Stock expiring within the 12 months preceding
the expiration of such tender or exchange offer and in
respect of which no adjustment pursuant to paragraph (5)
of this Section or this paragraph (6) has been made and
(II) the aggregate amount of any distributions to all
holders of the Company's Common Stock made exclusively
in cash within 12 months preceding the expiration of
such tender or exchange offer and in respect of which no
adjustment pursuant to paragraph (5) of this Section or
this paragraph (6) has been made, exceeds 10% of the
product of the Current Market Price per share of the
Common Stock as of the last time (the "Expiration Time")
tenders could have been made pursuant to such tender or
exchange offer (as it may be amended) times the number
of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time, then, and in
each such case, immediately prior to the opening of
business on the day after the date of the Expiration
Time, the Settlement Rate shall be adjusted so that the
same shall equal the rate determined by dividing the
Settlement Rate immediately prior to close of business
on the date of the Expiration Time by a fraction (i) the
numerator of which shall be equal to (A) the product of
(I) the Current Market Price per share of the Common
Stock on the date of the Expiration Time and (II) the
number of shares of Common Stock outstanding (including
any tendered shares) on the Expiration Time less (B) the
amount of cash plus the fair market value (determined as
aforesaid) of
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the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of Purchased
Shares, and (ii) the denominator of which shall be equal
to the product of (A) the Current Market Price per share
of the Common Stock as of the Expiration Time and (B)
the number of shares of Common Stock out standing
(including any tendered shares) as of the Expiration
Time less the number of all shares validly tendered and
not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities
including securities other than Common Stock (other than
any reclassification upon a Reorganization Event to
which Section 506(b) applies) shall be deemed to involve
(a) a distribution of such securities other than Common
Stock to all holders of Common Stock (and the effective
date of such reclassification shall be deemed to be "the
date fixed for the determination of stockholders
entitled to receive such distribution" and the "date
fixed for such determination" within the meaning of
paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of shares
of Common Stock outstanding immediately prior to such
reclassification into the number of shares of Common
Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed
to be "the day upon which such subdivision becomes
effective" or "the day upon which such combination
becomes effective", as the case may be, and "the day
upon which such subdivision or combination becomes
effective" within the meaning of paragraph (3) of this
Section).
(8) The "Current Market Price" per share of Common Stock on
any day means the average of the daily Closing Prices
for the 5 consecutive Trading Days selected by the
Company commencing not more than 20 Trading Days before,
and ending not later than, the earlier of the day in
question and the day before the "ex" date with respect
to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term
"'ex' date", when used with respect to any issuance or
distribution, shall mean the first date on which the
Common Stock trades regular way on such exchange or in
such market without the right to receive such issuance
or distribution.
(9) All adjustments to the Settlement Rate shall be
calculated to the nearest 1/10,000th of a share of
Common Stock (or if there is not a nearest 1/10,000th of
a share to the next lower 1/10,000th of a share). No
adjustment in the Settlement Rate shall be required
unless such adjustment would require an increase or
decrease of at least one percent therein; provided,
however, that any adjustments which by reason of this
subparagraph are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. If an adjustment is made to the Settlement
Rate pursuant to paragraph (1), (2), (3), (4), (5), (6),
(7) or (10) of this Section 506(a), an adjustment shall
also be made to the Applicable Market Value solely to
determine which of clauses (a), (b) or (c) of the
definition of Settlement Rate in Section 501 will apply
on the Final Settlement Date. Such adjustment shall be
made by multiplying the Applicable Market Value by a
fraction of
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which the numerator shall be the Settlement Rate in
clause (c) of the Settlement Rate definition in Section
501 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 in clause (c) of the Settlement Rate
definition in Section 501 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 of
Common Stock resulting from any dividend or distribution
of stock or issuance of rights or warrants to purchase
or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event.
In the event of (i) any consolidation or merger of the Company, with
or into another Person (other than a merger or consolidation in which
the Company is the continuing corporation and in which the Common
Stock outstanding immediately prior to the merger or consolidation is
not exchanged for cash, securities or other property of the Company or
another corporation), (ii) any sale, transfer, lease or conveyance to
another Person of the property of the Company as an entirety or
substantially as an entirety, (iii) any statutory exchange of
securities of the Company with another Person (other than in
connection with a merger or acquisition) or (iv) any liquidation,
dissolution or winding up of the Company (any such event, a
"Reorganization Event"), the Settlement Rate will be adjusted to
provide that each Holder of Securities will receive on the Final
Settlement Date with respect to each Purchase Contract forming a part
thereof, the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by a Holder of the number of
shares of Common Stock issuable on account of each Purchase Contract
if the Final Settlement Date had occurred immediately prior to such
Reorganization Event, assuming such Holder of Common Stock is not a
Person with which the Company consolidated or into which the Company
merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("constituent Person"), or an
Affiliate of a constituent Person, and failed to exercise his rights
of election, if any, as to the kind or amount of securities, cash and
other property receivable upon such Reorganization Event (provided
that if the kind or amount of securities, cash and other property
receivable upon such Reorganization Event is not the same for each
share of Common Stock held immediately prior to such Reorganization
Event by other than a constituent Person or an Affiliate thereof and
in respect of which such rights of election shall not have been
exercised ("nonelecting 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 nonelecting share shall be
deemed to be the kind and amount so receivable per share by a
plurality of the nonelecting shares). In the event of such a
Reorganization Event, the Person formed by such consolidation, merger
or exchange or the Person which acquires the assets of the Company or,
in the event of a liquidation or dissolution of the Company, the
Company or a liquidating trust created in connection therewith, shall
execute and deliver to the Agent an agreement supplemental hereto
providing that the Holders of each Outstanding Security shall have the
rights provided by this Section 506. Such supplemental agreement
shall provide for adjustments which, for events subsequent to the
effective date of such supplemental
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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 Agent an Officer's Certificate setting forth the
Settlement Rate, the method of calculation thereof in
reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based; and
(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 Securities of the
occurrence of such event and a statement in reasonable
detail setting forth the method by which the adjustment
to the Settlement Rate was determined and setting forth
the adjusted Settlement Rate.
(b) The Agent shall not at any time be under any duty or
responsibility to any holder of Securities to determine whether
any facts exist which may require any adjustment of the Settlement
Rate, or with respect to the nature or extent or calculation of
any such adjustment when made, or with respect to the method
employed in making the same. The Agent shall not be accountable
with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property,
which may at the time be issued or delivered with respect to any
Purchase Contract; and the Agent makes no representation with
respect thereto. The Agent shall not be responsible for any
failure of the Company to issue, transfer or deliver any shares of
Common Stock pursuant to a Purchase Contract or to comply with any
of the duties, responsibilities or covenants of the Company
contained in this Article.
Section 508. Termination Event; Notice.
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Contract Fee,
shall immediately and automatically terminate, without the necessity of any
notice or action by any Holder, the Agent or the Company, if, on or prior to
the Final Settlement Date, a Termination Event shall have occurred. Upon the
occurrence of a Termination Event, the Company shall give written notice to the
Agent, the Collateral Agent and to the Holders, at their addresses as they
appear in the Security Register. Upon and after the occurrence of a
Termination Event, the Securities shall thereafter represent the right to
receive the Pledged Securities forming a part of such Securities in accordance
with the provisions of Section 402 and the Pledge Agreement.
Section 509. Early Settlement.
(a) Subject to and upon compliance with the provisions of this Section
509 at the option of the Holder thereof, any Purchase Contracts
underlying Securities having an
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aggregate Stated Amount equal to $_________________ or an integral
multiple thereof may be settled early ("Early Settlement") as
provided herein. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts, the Holder of
the Security Certificate evidencing such Purchase Contracts shall
deliver such Security Certificate to the Agent at the Corporate
Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early on the reverse thereof
duly completed and accompanied by payment in the form of a
certified or cashier's check payable to the order of the Company
in immediately available funds in an amount (the "Early Settlement
Amount") equal to (i) the product of (A) the Stated Amount times
(B) the number of Purchase Contracts with respect to which the
Holder has elected to effect Early Settlement minus (ii) the
aggregate amount of Contract Fees, if any, otherwise payable on or
prior to the immediately preceding Payment Date deferred at the
option of the Company pursuant to Section 503 and remaining unpaid
as of such immediately preceding Payment Date plus (iii) if such
delivery is made with respect to any Purchase Contracts during the
period from the close of business on any Record Date next
preceding any Payment Date to the opening of business on such
Payment Date, an amount equal to the sum of (x) the Contract Fees
payable on such Payment Date with respect to such Purchase
Contracts plus (y) the distributions on the related Pledged
Securities payable on such Payment Date. Except as provided in
the immediately preceding sentence and subject to the last
paragraph of Section 502, no payment or adjustment shall be made
upon Early Settlement of any Purchase Contract on account of any
Contract Fees accrued on such Purchase Contract or on account of
any dividends on the Common Stock issued upon such Early
Settlement. If the foregoing requirements are first satisfied
with respect to Purchase Contracts underlying any Securities at or
prior to 5:00 p.m., New York City time, on a Business Day, such
day shall be the "Early Settlement Date" with respect to such
Securities and if such requirements are first satisfied after 5:00
p.m., New York City time, on a Business Day or on a day that is
not a Business Day, the "Early Settlement Date" with respect to
such Securities shall be the next succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Company shall issue, and the Holder shall
be entitled to receive, a number of shares of Common Stock on
account of each Purchase Contract as to which Early Settlement is
effected equal to the Early Settlement Rate. The Early Settlement
Rate shall initially be equal to _____________________ and shall
be adjusted in the same manner and at the same time as the
Settlement Rate is adjusted. As promptly as practicable after
Early Settlement of Purchase Contracts in accordance with the
provisions of this Section 509, the Company shall issue and shall
deliver to the Agent at the Corporate Trust Office a certificate
or certificates for the full number of shares of Common Stock
issuable upon such Early Settlement together with payment in lieu
of any fraction of a share, as provided in Section 510.
(c) The Company shall cause the shares of Common Stock issuable, and
Pledged Securities deliverable, upon Early Settlement of Purchase
Contracts to be issued and delivered, in the case of such shares
of Common Stock, and released from the Pledge by the Collateral
Agent and transferred, in the case of such Pledged Securities, to
the Agent, for delivery to the Holder thereof or its designee, no
later than the third Business Day after the applicable Early
Settlement Date.
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(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt thereof from the Company or the Collateral Agent, as
applicable, the Agent shall, in accordance with the instructions
provided by the Holder thereof on the applicable form of Election
to Settle Early on the reverse of the Security Certificate
evidencing the related Securities, (i) transfer the Pledged
Securities forming a part of such Securities and (ii) deliver a
certificate or certificates for the full number of shares of
Common Stock issuable upon such Early Settlement together with
payment in lieu of any fraction of a share, as provided in Section
510.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities
evidenced by a Security Certificate, upon such Early Settlement
the Company shall execute and the Agent shall authenticate,
countersign and deliver to the Holder thereof, at the expense of
the Company, a Security Certificate evidencing the Securities as
to which Early Settlement was not effected.
Section 510. No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Final Settlement Date
or upon Early Settlement of any Purchase Contracts. If Security Certificates
evidencing more than one Purchase Contract shall be surrendered for settlement
at one time by the same Holder, the number of full shares of Common Stock which
shall be delivered upon settlement shall be computed on the basis of the
aggregate number of Purchase Contracts evidenced by the Security Certificates
so surrendered. Instead of any fractional share of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the Final
Settlement Date or upon Early Settlement, the Company, through the Agent, shall
make a cash payment in respect of such fractional interest in an amount equal
to the value of such fractional shares at the Closing Price per share on the
Trading Day immediately preceding the Final Settlement Date or the related
Early Settlement Date, respectively. The Company shall provide the Agent from
time to time with sufficient funds to permit the Agent to make all cash
payments required by this Section 510 in a timely manner.
Section 511. Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable
to the initial issuance and delivery of the shares of Common Stock pursuant to
the Purchase Contracts; provided, however, that the Company shall not be
required to pay any such tax or taxes which may be payable in respect of any
exchange of or substitution for a Security Certificate evidencing a Purchase
Contract or any issuance of a share of Common Stock in a name other than that
of the registered Holder of a Security Certificate surrendered in respect of
the Purchase Contracts evidenced thereby, other than in the name of the Agent,
as custodian for such Holder, and the Company shall not be required to issue or
deliver such share certificates or Security Certificates unless or until the
Person or Persons requesting the transfer or issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
ARTICLE SIX
REMEDIES
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Section 601. Unconditional Right of Holders to Receive Contract Fee.
Notwithstanding any other provision in this Agreement, the Holder of
any Security shall have the right, which is absolute and unconditional (subject
to the right of the Company to defer payment thereof pursuant to Section 503),
to receive payment of each installment of the Contract Fee with respect to the
Purchase Contract constituting a part of such Security on the respective
Payment Date for such Security and to purchase Common Stock pursuant to such
Purchase Contract and, in each such case, to institute suit for the enforcement
of any such payment and right to purchase Common Stock, and such rights shall
not be impaired without the consent of such Holder.
Section 602. Restoration of Rights and Remedies.
If any Holder of Securities has instituted any proceeding to enforce
any right or remedy under this Agreement and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of such Holder shall continue as though no such proceeding had been
instituted.
Section 603. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement of
mutilated, destroyed, lost or stolen Security Certificates in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Holders of Securities 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 Security
by his acceptance of the Security Certificate evidencing such Security shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Agreement, or in any
suit against the Agent for any action taken, suffered or omitted by it as
Agent, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; provided that the provisions of
this Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Agent, to any suit instituted by any Holder of Securities,
or group of Holders, holding in the aggregate more than
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10% of the Out standing Securities, or to any suit instituted by any Holder for
the enforcement of the payment of the distributions on any Pledged Security or
the Contract Fee on any Purchase Contract on or after the respective Payment
Date therefor constituting a part of the Securities held by such Holder, or for
enforcement of the right to purchase shares of Common Stock under the Purchase
Contracts constituting a part of the Securities held by such Holder.
Section 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 Agent or the Holders, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SEVEN
THE AGENT
Section 701. Certain Duties and Responsibilities.
(a) The Agent undertakes to perform, with respect to the Securities,
such duties and only such duties as are specifically set forth in
this Agreement, and no implied covenants or obligations shall be
read into this Agreement against the Agent; and in the absence of
bad faith or negligence on its part, the Agent may, with respect
to the Securities, conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Agent and
conforming to the requirements of this Agreement, but in the case
of any certificates or opinions which by any provision hereof are
specifically required to be furnished to the Agent, the Agent
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except
that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it
shall be proved that the Agent was negligent in
ascertaining the pertinent facts; and
(3) no provision of this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any
financial liability in the per formance 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
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funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability
of or affording protection to the Agent shall be subject to the
provisions of this Section.
Section 702. Notice of Default.
Within 90 days after the occurrence of any default by the Company
hereunder, of which a Responsible Officer of the Agent has actual knowledge,
the Agent shall transmit by mail to all Holders of Securities, as their names
and addresses appear in the Security Register, notice of such default
hereunder, unless such default shall have been cured or waived.
Section 703. Certain Rights of Agent.
Subject to the provisions of Section 701:
(a) the Agent may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officer's Certificate, Issuer Order or
Issuer Request, and any resolution of the Board of Directors of the
Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent shall deem
it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Agent (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate of the Company;
(d) the Agent may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Agent, in its discretion, may make
reasonable further inquiry or investigation into such facts or
matters related to the issuance of the Securities and the execution,
delivery and performance of the Purchase Contracts as it may see fit,
and, if the Agent shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
promises of the Company, personally or by agent or attorney; and
(f) the Agent may execute any of its powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys
and the Agent shall not be responsible
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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 Securities.
The recitals contained herein and in the Security Certificates shall
be taken as the statements of the Company and the Agent assumes no
responsibility for their correctness. The Agent makes no representations as to
the validity or sufficiency of this Agreement or of the Securities. The Agent
shall not be accountable for the use or application by the Company of the
proceeds in re spect of the Purchase Contracts.
Section 705. May Hold Securities.
Any Security Registrar or any other agent of the Company, or the
Agent, in its individual or any other capacity, may become the owner or pledgee
of Secu rities and may otherwise deal with the Company with the same rights it
would have if it were not Security Registrar or such other agent, or the Agent.
Section 706. Money Held in Trust.
Money held by the Agent in trust hereunder need not be segregated from
the other funds except to the extent required by law. The Agent shall be under
no obligation to invest or pay interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 707. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Agent from time to time reasonable compensation for
all services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to reimburse the
Agent upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Agent in accordance with any
provision of this Agreement (including the reasonable compensation
and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Agent and any predecessor Agent for, and to hold
each of them harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of its
duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
Section 708. Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined
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capital and surplus of at least $100,000,000, subject to supervision or
examination by Federal or State authority and having its Corporate Trust Office
in the Borough of Manhattan, The City of New York, if there be such a
corporation in the Borough of Manhattan, The City of New York qualified and
eligible under this Article and will ing to act on reasonable terms. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Agent shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 709. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until
the acceptance of appointment by the successor Agent in accordance
with the applicable requirements of Section 710.
(b) The Agent may resign at any time by giving written notice thereof to
the Company 60 days prior to the effective date of such resignation.
If the instrument of acceptance by a successor Agent required by
Section 710 shall not have been delivered to the Agent within 30 days
after the giving of such notice of resignation, the resigning Agent
may petition any court of competent jurisdiction for the appointment
of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Securities delivered to the
Agent and the Company.
(d) If at any time
(1) the Agent fails to comply with Section 310(b) of the TIA, as if
the Agent were an indenture trustee under an indenture qualified
under the TIA, after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Agent shall cease to be eligible under Section 708 and shall
fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Agent shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Agent or of its
property shall be appointed or any public officer shall take
charge or control of the Agent or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then,
in any such case, (i) the Company by a Board Resolution may remove
the Agent, or (ii) any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the removal of the Agent and the appointment of a
successor Agent.
(e) If the Agent shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Agent for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor
Agent and shall comply with the applicable requirements of Section
710. If no successor Agent shall have been so appointed by the
Company and accepted appointment in the manner required by Section
710, any Holder who has been a
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bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to give,
no tice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such
event by first class mail, postage prepaid, to all Holders of
Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Agent
and the address of its Corporate Trust Office.
Section 710. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Agent, every such
successor Agent so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Agent an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Agent shall become effective and such successor Agent, without any
further act, deed or convey ance, shall become vested with all the
rights, powers, agencies and duties of the retiring Agent; but, on the
request of the Company or the successor Agent, such retiring Agent
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Agent all the rights, powers and trusts
of the retiring Agent and shall duly assign, transfer and deliver to
such successor Agent all property and money held by such retiring
Agent hereunder.
(b) Upon request of any such successor Agent, the Company shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and
agencies referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the time of
such acceptance such successor Agent shall be qualified and eligible
under this Article.
Section 711. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Agent, shall be the successor of the Agent hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Security Certificates shall have been
authenticated and executed on behalf of the Holders, but not delivered, by the
Agent then in office, any successor by merger, conversion or consolidation to
such Agent may adopt such authentication and execution and deliver the Security
Certificates so authenticated and executed with the same effect as if such
successor Agent had itself authenticated and executed such Securities.
Section 712. Preservation of Information; Communications to Holders.
(a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the
Agent in its capacity as Security Registrar.
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(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Agent, and furnish to the Agent reasonable proof that
each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the
Agent shall, within five Business Days after the receipt of such
application, afford such applicants access to the information
preserved at the time by the Agent in accordance with Section 712(a).
(c) Every Holder of Securities, by receiving and holding the Security
Certificates evidencing the same, agrees with the Company and the
Agent that none of the Company, the Agent nor any agent of any of them
shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance
with Section 712(b), regardless of the source from which such
information was derived.
Section 713. No Obligations of Agent.
Except to the extent otherwise provided in this Agreement, the Agent
assumes no obligations and shall not be subject to any liability under this
Agreement or any Purchase Contract in respect of the obligations of the Holder
of any Security thereunder. The Company agrees, and each Holder of a Security
Certificate, by his acceptance thereof, shall be deemed to have agreed, that
the Agent's execution of the Security Certificates on behalf of the Holders
shall be solely as agent and attorney-in-fact for the Holders, and that the
Agent shall have no obligation to perform such Purchase Contracts on behalf of
the Holders, except to the extent expressly provided in Article Five hereof.
Section 714. Tax Compliance.
(a) The Agent, on its own behalf and on behalf of the Company, will comply
with all applicable certification, information reporting and
withholding (including "backup" withholding) requirements imposed by
applicable tax laws, regulations or administrative practice with
respect to (i) any payments made with respect to the Securities or
(ii) the issuance, delivery, holding, transfer, redemption or exercise
of rights under the Securities. Such compliance shall include,
without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld
to the appropriate taxing authority or its designated agent.
(b) The Agent shall comply with any direction received from the Company
with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for
purposes of this Agreement rely on any such direction in accordance
with the provisions of Section 701(a)(2) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records
available on request to the Company or to its authorized
representative.
ARTICLE EIGHT
SUPPLEMENTAL AGREEMENTS
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Section 801. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Agent, at any
time and from time to time, may enter into one or more agreements supplemental
hereto, in form satisfactory to the Company and the Agent, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company
herein and in the Security Certificates; or
(2) to add to the covenants of the Company for the benefit of the Holders,
or to surrender any right or power herein conferred upon the Company;
or
(3) to evidence and provide for the acceptance of appointment hereunder by
a successor Agent; or
(4) to make provision with respect to the rights of Holders pursuant to
the requirements of Section 506(b); or
(5) to cure any ambiguity, to correct or supplement any provisions herein
which may be inconsistent with any other provisions herein, or to make
any other provisions with respect to such matters or questions arising
under this Agreement, provided such action shall not adversely affect
the interests of the Holders.
Section 802. Supplemental Agreements with Consent of Holders. With the
consent of the Holders of not less than a majority of the Outstanding
Securities delivered to the Company and the Agent, the Company when authorized
by a Board Resolution, and the Agent may enter into an agreement or agreements
supplemental hereto for the purpose of modifying in the manner the terms of the
Securities, or the provisions of this Agrement or the rights of the Holders in
respect of the Securities, provided, however, that no such supplemental
agreement shall, without the consent of the Holder of Each Outstanding
Security affected thereby,
(1) change any Payment Date;
(2) change the amount or type of Pledged Securities underlying a Security,
impair the right of the Holder of any Security to receive distribution
payments on the underlying Pledged Securities or otherwise adversely
affect the Holder's rights in or to such Pledged Securities;
(3) reduce any Contract Fee or change any place where, or the coin or
currency in which, any Contract Fee is payable;
(4) impair the right to institute suit for the enforcement of any Purchase
Contract;
(5) reduce the number of shares of Common Stock to be purchased pursuant
to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the
Final Settlement Date or otherwise adversely affect the Holder's
rights under any Purchase Contract; or
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(6) reduce the percentage of the Outstanding Securities the consent of
whose Holders is required for any such supplemental agreement.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 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 this Agreement, the 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 Agent may, but shall not be
obligated to, enter into any such supplemental agreement which affects the
Agent's own rights, duties or immunities under this Agreement or otherwise.
Section 804. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every
Holder of Security Certificates theretofore or thereafter authenticated,
executed on behalf of the Holders and delivered hereunder shall be bound
thereby.
Section 805. Reference to Supplemental Agreements.
Security Certificates authenticated, executed on behalf of the Holders
and delivered after the execution of any supplemental agreement pursuant to
this Article may, and shall if required by the Agent, bear a notation in form
approved by the Agent as to any matter provided for in such supplemental
agreement. If the Company shall so determine, new Security Certificates so
modified as to conform, in the opinion of the Agent and the Company, to any such
supplemental agreement may be prepared and executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Agent in
exchange for Outstanding Security Certificates.
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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 or convey all or substantially all of its assets to any
Person, except that the Company may merge or consolidate with, or sell or
convey all or substantially all of its assets to, any other Person, provided
that (i) the Company shall be the continuing corporation, or the successor (if
other than the Company) shall be a corporation organized and existing under the
laws of the United States of America or a State thereof and such corporation
shall assume the obligations of the Company under the Purchase Contracts, this
Agreement and the Pledge Agreement by one or more supplemental agreements in
form satisfactory to the Agent and the Collateral Agent, executed and delivered
to the Agent and the Collateral Agent by such corporation, and (ii) the Company
or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the
performance of any covenant or condition hereunder, under any of the Securities
or under the Pledge Agreement.
Section 902. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale or conveyance and upon
any such assumption by the successor corporation, such successor corporation
shall succeed to and be substituted for the Company with the same effect as if
it had been named herein as the Company. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the name of
AirTouch Communications, Inc., any or all of the Security Certificates evi-
dencing Securities issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Agent; and, upon the order of such
successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Agent shall au-
thenticate and execute on behalf of the Holders and deliver any Security
Certificates which previously shall have been signed and delivered by the offi-
cers of the Company to the Agent for authentication and execution, and any
Security Certificate evidencing Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Agent for that
purpose. All the Security Certificates so issued shall in all respects have
the same legal rank and benefit under this Agreement as the Security
Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Security Certificates had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
change in phraseology and form (but not in substance) may be made in the
Security Certificates evidencing Securities thereafter to be issued as may be
appropriate.
Section 903. Opinion of Counsel to Agent.
The Agent, subject to Sections 701 and 703, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article.
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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 Securities that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York an office or agency where Security Certificates may be presented or
surrendered for acquisition of shares of Common Stock upon settlement or Early
Settlement and for transfer of Pledged Securities upon occurrence of a
Termination Event, where Security Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Agreement may be served. The
Company will give prompt written notice to the Agent of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Agent with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and
the Company hereby appoints the Agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where Security Certificates may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, the City of New York for such purposes.
The Company will give prompt written notice to the Agent of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby designates as the place of payment for
the Securities the Corporate Trust Office and appoints the Agent at its
Corporate Trust Office as paying agent in such city.
Section 1003. Company to Reserve Common Stock.
The Company shall at all times prior to the Final Settlement Date
reserve and keep available, free from preemptive rights, out of its authorized
but unissued Common Stock the full number of shares of Common Stock issuable
against tender of payment in respect of all Purchase Contracts constituting a
part of the Securities evidenced by Outstanding Security Certificates.
Section 1004. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be
issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
Section 1005. Statements of Officers of the Company as to Default.
The Company will deliver to the Agent, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officer's
Certificate, stating whether or not to the
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best knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions
hereof, and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
AIRTOUCH COMMUNICATIONS, INC. [AGENT] Agent
By: By:
Attested by Attested by
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EXHIBIT A
AIRTOUCH COMMUNICATIONS, INC.
___% _______________SECURITIES
(STATED AMOUNT $___ PER SECURITY)
No. Securities
This Security Certificate certifies that is the registered Holder of
the number of Securities set forth above. Each Security represents ownership
by the Holder of ___% United States Pledged Securities due _________ ("Pledged
Securities") with a principal amount equal to the Stated Amount, subject to the
Pledge of such Pledged Securities by such Holder pursuant to the Pledge
Agreement, and the rights and obligations of the Holder under one Purchase
Contract with AirTouch Communications, Inc., a Delaware corporation (the
"Company").
Pursuant to the Pledge Agreement, the Pledged Securities constituting
part of each Security evidenced hereby have been pledged to the Collateral
Agent to secure the obligations of the Holder under the Purchase Contract
constituting part of such Security.
The Pledge Agreement provides that all payments of principal of, or
distributions on, any Pledged Securities constituting part of the Securities
received by the Collateral Agent shall be paid by the Collateral Agent by wire
transfer in same day funds no later than , New York City time, on the Business
Day such payment is received by the Collateral Agent (provided that in the
event such payment is received by the Collateral Agent on a day that is not a
Business Day or after , New York City time, on a Business Day, then such
payment shall be made no later than , New York City time, on the next
succeeding Business Day) (i) in the case of (A) distributions payments and (B)
any principal payments with respect to any Pledged Securities that have been
released from the Pledge pursuant to the Pledge Agreement, to the Agent to the
account designated by it for such purpose and (ii) in the case of principal
payments on any Pledged Pledged Securities (as defined in the Pledge
Agreement), to the Company, in full satisfaction of the respective obligations
of the Holders of the Securities of which such Pledged Treasury Securities are
a part under the Purchase Contracts forming a part of such Securities.
Distributions on any Pledged Security forming part of a Security evidenced
hereby which is paid on any or, commencing, 1995 (a "Payment Date"), shall,
subject to receipt thereof by the Agent from the Collateral Agent, be paid to
the Person in whose name this Security Certificate (or a Predecessor Security
Certificate) is registered at the close of business on the Record Date next
preceding such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Security Certificate to purchase, and the Company to sell, on _______, (the
"Final Settlement Date"), at a price equal to $____ (the "Stated Amount"), a
number of shares of Common Stock, par value $.01 per share ("Common Stock"), of
the Company, equal to the Settlement Rate, unless on or prior to the Final
Settlement Date there shall have occurred a Termination Event or Early
Settlement with respect to the Security of which such Purchase Contract is a
part, all as provided in the Purchase Contract Agreement and more fully
described on the reverse hereof. The purchase price for the shares of Common
Stock purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Final Settlement Date by application of payment
received in respect
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of the principal of the Pledged Securities pledged to secure the obligations
under such Purchase Contract of the Holder of the Security of which such
Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of a Security evidenced hereby a fee (the
"Contract Fee") equal to ___% per annum of the Stated Amount, from ________,
computed on the basis of the actual number of days elapsed in a year of 365 or
366 days, as the case may be, subject to deferral at the option of the Company
as provided in the Purchase Contract Agreement and more fully described on the
reverse hereof. Such Contract Fee shall be payable to the Person in whose name
this Security Certificate (or a Predecessor Security Certificate) is registered
at the close of business on the Record Date next preceding such Payment Date.
Distributions on the Pledged Securities and the Contract Fee will be
payable at the office of the Agent in The City of New York or, at the option of
the Company, by check mailed to the address of the Person entitled thereto as
such address appears on the Security Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Security Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Purchase Contract Agreement or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
AIRTOUCH COMMUNICATIONS, INC.
By:
Attest:
HOLDER SPECIFIED ABOVE (as to obligations of such
Holder under the Purchase Contracts evidenced
hereby)
By:
as Attorney-in-Fact of such Holder
By:
Dated:
This is one of the Security Certificates referred to in the within
mentioned Purchase Contract Agreement
_________________________________________,
as Agent
By:
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Form of Reverse of Security Certificate
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of ___________(the "Purchase Contract Agreement"),
between the Company and_________________, as Agent (herein called the "Agent"),
to which Purchase Contract Agreement and supplemental agreements thereto
reference is hereby made for a description of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Agent, the Company, and the Holders and of the terms upon which the Security
Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Security Certificate to purchase, and the Company to sell, on the Final
Settlement Date at a price equal to the Stated Amount, a number of shares of
Common Stock of the Company equal to the Settlement Rate, unless, on or prior
to the Final Settlement Date, there shall have occurred a Termination Event or
an Early Settlement with respect to the Security of which such Purchase
Contract is a part. The "Settlement Rate" is equal to (a) if the Applicable
Market Value (as defined below) is greater than $ ________ (the "Threshold
Appreciation Price"), of a share of Common Stock per Purchase Contract, (b) if
the Applicable Market Value is less than or equal to the Threshold Appreciation
Price but is greater than the Stated Amount, a fractional share of Common Stock
per Purchase Contract equal to the Stated Amount divided by the Applicable
Market Value and (c) if the Applicable Market Amount is less than or equal to
the Stated Amount, one share of Common Stock per Purchase Contract, in each
case subject to adjustment as provided in the Purchase Contract. No fractional
shares of Common Stock will be issued upon settlement of Purchase Contracts, as
provided in the Purchase Contract Agreement.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the twenty consecutive Trading Days ending
on the last Trading Day immediately preceding the Final Settlement Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The Nasdaq Stock Market, or, if the Common Stock is
not so reported, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company. A "Trading
Day" means a day on which the Common Stock (A) is not suspended from trading on
any national or regional securities exchange or association or over-the-counter
market at the close of business and (B) has traded at least once on the
national or regional securities exchange or association or over-the-counter
market that is the primary market for the trading of the Common Stock.
The purchase price for the shares of Common Stock purchased pursuant
to each Purchase Contract shall be paid by application of payments received by
the Company on the Final Settlement Date from the Collateral Agent pursuant to
the Pledge Agreement in respect of the principal of the Pledged Securities
Pledged to secure the obligations of the relevant Holder under such Purchase
Contract. The Company shall not be obligated to issue any shares of Common
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Stock in respect of a Purchase Contract or deliver any certificates therefor
to the Holder unless it shall have received payment in full of the aggregate
purchase price for the shares of Common Stock to be purchased thereunder in the
manner herein set forth.
Subject to the next succeeding paragraph, the Company shall pay, on
each Payment Date, the Contract Fee payable in respect of each Purchase
Contract to the Person in whose name the Security Certificate evidencing such
Purchase Contract is registered at the close of business on the Record Date
next pre ceding such Payment Date. Contract Fees will be payable at the office
of the Agent in The City of New York or, at the option of the Company, by check
mailed to the address of the Person entitled thereto at such address as it ap
pears on the Security Register.
The Company shall have the right, at any time prior to the Final
Settlement Date, to defer the payment of any or all of the Contract Fees
otherwise pay able on any Payment Date, but only if the Company shall give the
Holders and the Agent written notice of its election to defer such payment
(specifying the amount to be deferred) as provided in the Purchase Contract
Agreement. Any Contract Fees so deferred shall bear additional Contract Fees
thereon at the rate of per annum (computed on the basis of the actual number of
days elapsed in a year of 365 or 366 days, as the case may be), compounding on
each succeeding Payment Date, until paid in full. Deferred Contract Fees (and
additional Contract Fees accrued thereon) shall be due on the next succeeding
Payment Date except to the extent that payment is deferred pursuant to the
Purchase Contract Agreement. No Contract Fees may be deferred to a date that
is after the Final Settlement Date.
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Contract Fee,
shall immediately and automatically terminate, without the necessity of any
notice or action by any Holder, the Agent or the Company, if, on or prior to
the Final Settlement Date, a Termination Event shall have occurred. Upon the
occurrence of a Termination Event, the Company shall give written notice to
the Agent and to the Holders, at their addresses as they appear in the Security
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Pledged Securities from the Pledge. The Securities
shall thereafter represent the right to receive the Pledged Securities forming
a part of such Securities in accordance with the provisions of the Purchase
Contract Agreement and the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement at the option of the Holder thereof, Purchase Contracts
underlying Securities having an aggregate Stated Amount equal to $ _______ or
an integral multiple thereof may be settled early ("Early Settlement") as
provided in the Purchase Contract Agreement. In order to exercise the right to
effect Early Settlement with respect to any Purchase Contracts evidenced by
this Security Certificate, the Holder of this Security Certificate shall
deliver this Security Certificate to the Agent at the Corporate Trust Office
duly endorsed for transfer to the Company or in blank with the form of Election
to Settle Early set forth below duly completed and accompanied by payment in
the form of a certified or cashier's check payable to the order of the Company
in immediately available funds in an amount (the "Early Settlement Amount")
equal to (i) the product of (A) the Stated Amount times (B) the number of
Purchase Contracts with respect to which the Holder has elected to effect
Early Settlement minus (ii) the aggregate amount of Contract Fees, if any,
otherwise payable on or prior to the immediately preceding Payment Date
deferred at the option of the Company pursuant to the Purchase Contract
Agreement and remaining unpaid as of such immediately preceding Payment Date
plus (iii) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date next
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preceding any Payment Date to the opening of business on such Payment Date, an
amount equal to the sum of (x) the Contract Fees payable on such Payment Date
with respect to such Purchase Contracts plus (y) the distributions with respect
to the related Pledged Securities payable on such Payment Date. Upon Early
Settlement of Purchase Contracts by a Holder of the related Securities, the
Pledged Securities underlying such Securities shall be released from the Pledge
as provided in the Pledge Agreement and the Holder shall be entitled to
receive, a number of shares of Common Stock on account of each Purchase
Contract forming part of a Security as to which Early Settlement is effected
equal to the Early Settlement Rate. The Early Settlement Rate shall initially
be equal to and shall be adjusted in the same manner and at the same time as
the Settlement Rate is adjusted as provided in the Purchase Contract Agreement.
The Security Certificates are issuable only in registered form and
only in denominations of a single Security and any integral multiple thereof.
The transfer of any Security Certificate will be registered and Security
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The Security Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Purchase
Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. For so long as the Purchase Contract
underlying a Security remains in effect, such Security shall not be separable
into its constituent parts, and the rights and obligations of the Holder of
such Security in respect of the Pledged Securities and Purchase Contract
constituting such Security may be transferred and exchanged only as a Security.
Upon registration of transfer of this Security Certificate, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract
Agreement and the Purchase Contracts evidenced hereby and the transferor shall
be released from the obligations under the Purchase Contracts evidenced by this
Security Certificate. The Company covenants and agrees, and the Holder, by his
acceptance hereof, likewise covenants and agrees, to be bound by the
provisions of this paragraph.
The Holder of this Security Certificate, by his acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Securities evidenced hereby on his behalf as his
attorney-in-fact, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, authorizes the
Agent to enter into and perform the Pledge Agreement on his behalf as his
attorney-in-fact, and consents to the Pledge of the Pledged Securities
underlying this Security Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect of principal of the Pledged
Securities on the Final Settlement Date shall be paid by the Collateral Agent
to the Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of at least a majority
of the Outstanding Securities.
All terms used herein which are defined in the Purchase Contract
Agreement have the meanings set forth therein.
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The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Agent and any agent of the Company or the Agent may
treat the Person in whose name this Security Certificate is registered as the
owner of the Securities evidenced hereby for the purpose of receiving payments
of distributions on the Pledged Securities, receiving payments of Contract
Fees, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not any payments in respect thereof be overdue and
notwithstanding any notice to the contrary, and neither the Company, the Agent
nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Agent.
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Final Settlement Date of the
Pur chase Contracts underlying the number of Securities evidenced by this
Security Certificate be registered in the name of, and delivered, together with
a check in payment for any fractional share, to the undersigned at the address
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 under
signed, the undersigned will pay any transfer tax payable incident thereto.
Dated:
Signature
If shares are to be registered in the name of and delivered to
REGISTERED HOLDER a Person other than the Holder, please print such Person's
name and address: Please print name and address of Registered Holder:
Name
Address
Social Security or other Taxpayer Identification Number, if any
ELECTION TO SETTLE EARLY
The undersigned Holder of this Security Certificate hereby irrevocably
exercises the option to effect Early Settlement in accordance with the terms
of the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Securities evidenced by this Security Certificate
specified below. The option to effect Early Settlement may be exercised only
with respect to Purchase Contracts underlying Securities with an aggregate
Stated Amount equal to $_____ or an integral multiple thereof. The undersigned
Holder directs that a
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certificate for shares of Common Stock deliverable upon such Early Settlement
be registered in the name of, and delivered, together with a check in payment
for any fractional share and any Security Certificate representing any
Securities evidenced hereby as to which Early Settlement of the related
Purchase Contracts is not effected, to the undersigned at the address
indicated below unless a different name and address have been indicated below.
Pledged Securities deliverable upon such Early Settlement will be transferred
in accordance with the transfer instructions set forth below. If shares are to
be registered in the name of a Person other than the undersigned, the
undersigned will pay any transfer tax payable incident thereto.
Dated:
Signature
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected: .
REGISTERED HOLDER
If shares or Security Certificates are to be registered in the name
of and delivered to and Pledged Securities are to be transferred to a Person
other than the Holder, please print such Person's name and address:
Please print name and address of Registered Holder:
Name
Address
Social Security or other Taxpayer Identification Number, if any
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