EXHIBIT 4-h
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FIRST SUPPLEMENTAL AGREEMENT
AMONG
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCE PLC,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
DISCOVER & CO.,
THE CHASE MANHATTAN BANK,
as Agent, as Book-Entry Unit Depositary
and as Trustee under the Indenture referred to
in the Capital Unit Agreement
AND
THE HOLDERS FROM TIME TO TIME
OF THE CAPITAL UNITS DESCRIBED IN THE CAPITAL UNIT
AGREEMENT
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Dated as of June 1, 1997
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SUPPLEMENTAL TO CAPITAL UNIT AGREEMENT
DATED AS OF [ ]
AMONG ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCE PLC,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ GROUP INC.,
THE CHASE MANHATTAN BANK
(FORMERLY KNOWN AS CHEMICAL BANK)
AND THE HOLDERS FROM TIME TO TIME
OF THE CAPITAL UNITS DESCRIBED IN THE CAPITAL UNIT
AGREEMENT
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FIRST SUPPLEMENTAL AGREEMENT, dated as of June 1, 1997 among
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCE PLC, a company incorporated under the laws of
England and Wales ("MS plc"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, DISCOVER & CO.,
a Delaware corporation (the "Successor Corporation" and hereinafter the
"Corporation"), THE CHASE MANHATTAN BANK (formerly known as Chemical Bank),
as Agent and Book-Entry Unit Depositary (in its capacity as capital unit
agent, the "Agent," and, in its capacity as book-entry unit depositary, the
"Book-Entry Unit Depositary") and THE HOLDERS FROM TIME TO TIME OF THE
CAPITAL UNITS DESCRIBED IN THE CAPITAL UNIT AGREEMENT (the "Holders").
W I T N E S S E T H :
WHEREAS, MS plc, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group Inc. ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"),
the Agent and Book-Entry Unit Depositary and the Holders are parties to that
certain Capital Unit Agreement dated as of [ ];
WHEREAS, as of May 31, 1997, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ merged with and
into ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co., which continued as the successor corporation
and changed its name to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co. (the
"Merger");
WHEREAS, Section 801 of the Capital Unit Agreement requires the
Successor Corporation to expressly assume the obligations of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
under the Capital Unit Agreement in a supplemental agreement satisfactory to
the Agent and Book-Entry Unit Depositary;
WHEREAS, pursuant to and in compliance with Section 802 of the
Capital Unit Agreement, the Successor Corporation shall succeed to and be
substituted for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ under the Capital Unit Agreement as the
"Corporation," with the same effect as if it had been named therein;
WHEREAS, Section 406 of the Capital Unit Agreement requires the
Successor Corporation to execute and deliver to the Agent an amendment of the
Capital Unit Agreement to provide that each Holder shall have the right and
obligation to purchase on the Purchase Date the number of shares, property or
other assets which a holder of the number of shares of Preferred Stock to
which a Purchase Contract related was entitled to receive in connection with
the Merger;
WHEREAS, Section 701 of the Capital Unit Agreement provides
that, without the consent of the Holders, each of MS plc and the Corporation,
when authorized by a resolution of its Board of Directors, and the Agent and
Book-Entry Unit Depositary may enter into agreements supplemental to the
Capital Unit Agreement for the purpose of evidencing the succession of another
Person to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the assumption by such successor of the covenants
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and supplementing or amending any provisions with respect
to matters arising under the Capital Unit Agreement, subject to the
conditions set forth therein;
WHEREAS, the Corporation desires to modify certain provisions
of the Capital Unit Agreement to reflect a modification of the officers of the
Corporation who are authorized to execute certain documents in connection with
the issuance of Capital Units;
WHEREAS, the entry into this First Supplemental Agreement by
the parties hereto is in all respects authorized by the provisions of the
Capital Unit Agreement; and
WHEREAS, all things necessary to make this First Supplemental
Agreement a valid agreement according to its terms have been done;
NOW, THEREFORE, for and in consideration of the premises, MS
plc, the Corporation, the Agent and the Book-Entry Unit Depositary mutually
covenant and agree for the equal and proportionate benefit of the respective
Holders as follows:
ARTICLE 1
Section 1.1. Assumption of Obligations by Successor
Corporation. Pursuant to Section 801 of the Capital Unit Agreement, the
Successor Corporation does hereby: (i) expressly assume the due and
punctual performance and observance of all of the covenants and conditions
of the Capital Unit Agreement to be performed or observed by ▇▇▇▇▇▇
▇▇▇▇▇▇▇; (ii) agrees to succeed to and be substituted for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
under the Capital Unit Agreement, with the same effect as if it had been
named therein; and (iii) represent that it is not in default in the
performance of any such covenant and condition.
Section 1.2. Amendment of Section 101. Section 101 of the
Capital Unit Agreement is hereby amended by
(a) deleting the definition of "Issuer Order" or "Issuer Request"
and inserting in lieu thereof the following:
"'Issuer Order' or 'Issuer Request,' with respect to MS plc means a
written order or request signed in the name of MS plc by the Chairman
or Vice Chairman of the Board of Directors, the President, General
Counsel, Chief Financial Officer, Treasurer, Secretary, Assistant
Secretary or any Managing Director of MS plc and delivered to the
Agent. 'Issuer Order' or 'Issuer Request' with respect to the
Corporation means a written order or request signed in the name of the
Corporation by any one of the following: the Chairman of the Board,
the President, the Chief Financial Officer, the Chief Strategic and
Administrative Officer, the Chief Legal Officer, the Treasurer, any
Assistant Treasurer or any such other person specifically designated
by the Board of Directors of the Corporation to execute any such
written order or request and delivered to the Agent.";
(b) deleting the definition of "Officer's Certificate" and
inserting in lieu thereof the following:
"'Officer's Certificate' when used with respect to MS plc means a
certificate signed by the Chairman or Vice Chairman of the Board of
Directors, the President, General Counsel, Chief Financial Officer,
Treasurer, Secretary, Assistant Secretary or any Managing Director of
MS plc and delivered to the Agent. 'Officer's Certificate' when used
with respect to the Corporation means a certificate signed by any one
of the following: the Chairman of the Board, the President, the Chief
Financial Officer, the Chief Strategic and Administrative Officer, the
Chief Legal Officer, the Treasurer, any Assistant Treasurer or any
such other person specifically designated by the Board of Directors of
the Corporation to execute any such certificate and delivered to the
Agent.";
(c) deleting the definition of "Preferred Stock" and inserting
in lieu thereof the following:
"'Preferred Stock' means the [ ]% Cumulative Preferred Stock,
par value $0.01 per share, stated value $200.00 per share, of the
Corporation issuable pursuant to the Purchase Contracts."
Section 1.3. Amendment of Section 401. Section 401 of the
Capital Unit Agreement shall be amended by deleting the second sentence of
the first paragraph and inserting in lieu thereof the following:
"The Purchase Contracts shall be executed on behalf of the Corporation
by any one of the following: the Chairman of the Board, the President,
the Chief Financial Officer, the Chief Strategic and Administrative
Officer, the Chief Legal Officer, the Treasurer, any Assistant
Treasurer or any such other person specifically designated by the
Board of Directors of the Corporation to execute Purchase Contracts
and such Purchase Contracts may, but need not, be attested."
ARTICLE 2
Section 2.1. Rights and Obligations of the Holders as a Result
of the Merger. Pursuant to Section 406 of the Capital Unit Agreement, the
Successor Corporation does hereby agree that the Holder of each Outstanding
Capital Unit shall have the right and obligation on the Purchase Date to
purchase the number of shares of Preferred Stock which a holder of such number
of shares of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ [ ]% Cumulative Preferred Stock, without par
value, stated value $200 per share, to which a Purchase Contract related
was entitled to receive in connection with the Merger, to wit: [ ] share[s]
of Preferred Stock.
ARTICLE 3
Miscellaneous
Section 3.1. Further Assurances. The Corporation will,
upon request by the Agent and Book-Entry Unit Depositary, execute and
deliver such further instruments and do such further acts as may reasonably
be necessary or proper to carry out more effectively the purposes of this
First Supplemental Agreement.
Section 3.2. Other Terms of Capital Unit Agreement. Except
insofar as herein otherwise expressly provided, all the provisions, terms and
conditions of the Capital Unit Agreement are in all respects ratified and
confirmed and shall remain in full force and effect.
Section 3.3. Terms Defined. All terms defined elsewhere in the
Capital Unit Agreement shall have the same meanings when used herein.
Section 3.4. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF
NEW YORK SHALL GOVERN THIS FIRST SUPPLEMENTAL AGREEMENT.
Section 3.5. Multiple Counterparts. This First Supplemental
Agreement may be executed in any number of counterparts, each of which shall
be deemed to be an original for all purposes, but such counterparts shall
together be deemed to constitute but one and the same instrument.
Section 3.6. Responsibility of Agent and Book-Entry Unit
Depositary. The recitals contained herein shall be taken as the statements of
MS Plc and the Corporation, and the Agent and Book-Entry Unit Depositary
assume no responsibility for the correctness of the same. The Agent and
Book-Entry Unit Depositary make no representations as to the validity or
sufficiency of this First Supplemental Agreement.
Section 3.7. Agency Appointments. The Corporation hereby
confirms and agrees to all agency appointments made by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ under or
with respect to the Capital Unit Agreement or the Capital Units and hereby
expressly assumes the due and punctual performance and observance of all the
covenants and conditions to have been performed or observed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
contained in any agency agreement entered into by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ under or with
respect to the Capital Unit Agreement or the Capital Units.
* * * * * * * * * * * * * *
IN WITNESS WHEREOF, this First Supplemental Agreement has been
duly executed by MS plc, the Corporation and the Agent and Book-Entry Unit
Depositary as of the day and year first written above.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCE PLC
By:______________________________
Title:
Attest:
By: ____________________
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
DISCOVER & CO.
By:______________________________
Title:
Attest:
By: ___________________
Assistant Secretary
THE CHASE MANHATTAN BANK,
as Agent
By:______________________________
Title:
Attest:
By: ____________________
Title:
THE CHASE MANHATTAN BANK,
as Book-Entry Unit Depositary
By:______________________________
Title:
Attest:
By: ____________________
Title: