EXHIBIT 4.21
FORM OF
PURCHASE CONTRACT AGREEMENT
PROVIDIAN FINANCIAL CORPORATION
AND
[PURCHASE CONTRACT AGENT]
DATED AS OF ____________
TABLE OF CONTENTS
-----------------
PAGE
----
1. Definitions and Other Provisions of General Application..............................................1
1.1 Definitions.................................................................................1
1.2 Compliance Certificates and Opinions........................................................5
1.3 Form of Documents Delivered to Agent........................................................5
1.4 Acts of Holders; Record Dates...............................................................6
1.5 Notices, etc., to Agent and the Company.....................................................7
1.6 Notice to Holders; Waiver...................................................................7
1.7 Effect of Headings and Table of Contents....................................................7
1.8 Successors and Assigns......................................................................7
1.9 Separability Clause.........................................................................7
1.10 Benefits of Agreement.......................................................................7
1.11 Governing Law...............................................................................8
1.12 Legal Holidays..............................................................................8
1.13 Counterparts................................................................................8
1.14 Inspection of Agreement.....................................................................8
2. Security Certificate Forms...........................................................................8
2.1 Forms of Security Certificates Generally....................................................8
2.2 Form of Agent's Certificate of Authentication...............................................8
3. The Securities.......................................................................................9
3.1 Title and Terms; Denominations..............................................................9
3.2 Rights and Obligations Evidenced by the Security Certificates...............................9
3.3 Execution, Authentication, Delivery and Dating..............................................9
3.4 Temporary Security Certificates........................................................... 10
3.5 Registration; Registration of Transfer and Exchange....................................... 10
3.6 Mutilated, Destroyed, Lost and Stolen Security Certificates............................... 11
3.7 Persons Deemed Owners..................................................................... 12
3.8 Cancellation.............................................................................. 12
3.9 Securities Not Separable.................................................................. 12
4. The Pledged Securities............................................................................. 13
4.1 Payment of Distributions; Rights to Distributions Preserved............................... 13
4.2 Transfer of Pledged Securities Upon Occurrence of Termination Event....................... 13
5. The Purchase Contracts............................................................................. 14
5.1 Purchase of Shares of Common Stock........................................................ 14
5.2 Contract Fees............................................................................. 14
5.3 Deferral of Payment Dates For Contract Fee................................................ 15
5.4 Payment of Purchase Price................................................................. 15
5.5 Issuance of Shares of Common Stock........................................................ 15
5.6 Adjustment of Settlement Rate............................................................. 16
5.7 Notice of Adjustments and Certain Other Events............................................ 20
5.8 Termination Event; Notice................................................................. 20
5.9 Early Settlement.......................................................................... 20
5.10 No Fractional Shares...................................................................... 21
5.11 Charges and Taxes......................................................................... 21
6. Remedies........................................................................................... 22
6.1 Unconditional Right of Holders to Receive Contract Fee.................................... 22
-i-
6.2 Restoration of Rights and Remedies........................................................ 22
6.3 Rights and Remedies Cumulative............................................................ 22
6.4 Delay or Omission Not Waiver.............................................................. 22
6.5 Undertaking for Costs..................................................................... 22
6.6 Waiver of Stay or Extension Laws.......................................................... 22
7. The Agent.......................................................................................... 23
7.1 Certain Duties and Responsibilities....................................................... 23
7.2 Notice of Default......................................................................... 23
7.3 Certain Rights of Agent................................................................... 23
7.4 Not Responsible for Recitals or Issuance of Securities.................................... 24
7.5 May Hold Securities....................................................................... 24
7.6 Money Held in Trust....................................................................... 24
7.7 Compensation and Reimbursement............................................................ 24
7.8 Corporate Agent Required; Eligibility..................................................... 24
7.9 Resignation and Removal; Appointment of Successor......................................... 25
7.10 Corporate Agent Required; Eligibility..................................................... 25
7.11 Resignation and Removal; Appointment of Successor......................................... 26
7.12 Acceptance of Appointment by Successor.................................................... 26
7.13 Merger, Conversion, Consolidation or Succession to Business............................... 27
7.14 Preservation of Information; Communications to Holders.................................... 27
7.15 No Obligations of Agent................................................................... 27
7.16 Tax Compliance............................................................................ 27
8. Supplemental Agreements............................................................................ 28
8.1 Supplemental Agreements Without Consent of Holders........................................ 28
8.2 Supplemental Agreements with Consent of Holders........................................... 28
8.3 Execution of Supplemental Agreements...................................................... 29
8.4 Effect of Supplemental Agreements......................................................... 29
8.5 Reference to Supplemental Agreements...................................................... 29
9. Consolidation, Merger, Sale or Conveyance.......................................................... 29
9.1 Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under Certain
Conditions................................................................................ 29
9.2 Rights and Duties of Successor Corporation................................................ 29
9.3 Opinion of Counsel to Agent............................................................... 30
10. Covenants.......................................................................................... 30
10.1 Performance Under Purchase Contracts...................................................... 30
10.2 Maintenance of Office or Agency........................................................... 30
10.3 Company to Reserve Common Stock........................................................... 30
10.4 Covenants as to Common Stock.............................................................. 30
10.5 Statements of Officers of the Company as to Default....................................... 30
TESTIMONIUM
SIGNATURES
EXHIBIT A Form of Security Certificate
-ii-
PURCHASE CONTRACT AGREEMENT
THIS PURCHASE CONTRACT AGREEMENT, dated as of ____________, 199__, is
made between PROVIDIAN FINANCIAL CORPORATION, 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.
NOW, THEREFORE, for and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually agreed as
follows:
1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.
1.1 DEFINITIONS. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular; and
(b) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" 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
"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.
-1-
"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 __________ percent (___%) per annum of the Stated
Amount, accruing from __________, 199_, computed on the basis of the actual
number of days elapsed in a year of three hundred sixty-five (365) or three
hundred sixty-six (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).
"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.
-2-
"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
(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____
-3-
"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 attorney-in-fact 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 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 sixty (60) days prior to the Final
Settlement Date, such decree or order shall have continued undischarged and
unstayed for a period of sixty (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
-4-
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 sixty (60) days prior
to the Final Settlement Date, such decree or order shall have continued
undischarged and unstayed for a period of sixty (60) days, or (iii) at any time
on or prior to the Final Settlement Date the Company shall institute proceedings
to be adjudicated a bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
reorganization under the United States Bankruptcy Code or any other similar
applicable Federal or State law, or shall consent to the filing of any such
petition, or shall consent to the appointment of a receiver or liquidator or
trustee or 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."
1.2 COMPLIANCE CERTIFICATES AND OPINIONS. Except as otherwise expressly
provided by this Agreement, upon any application or request by the Company to
the Agent to take any action under any provision of this Agreement, the Company
shall furnish to the Agent 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:
(a) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(b) 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;
(c) 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
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
1.3 FORM OF DOCUMENTS DELIVERED TO AGENT. In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
-5-
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 of fleer 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.
1.4 ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Agent and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Agreement and (subject to Section 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.
(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
-6-
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 pare
graph. Notwithstanding the foregoing, no Expiration Date shall be later than the
180th day after the applicable record date.
1.5 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,
(a) 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
(b) the Company by the Agent or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed in writing and personally delivered or mailed, first
class postage prepaid, to the Company at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: _______________, or at any other
address previously furnished in writing to the Agent by the Company.
1.6 NOTICE TO HOLDERS; WAIVER. Where this Agreement provides for notice
to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first class
postage prepaid, to each Holder affected by such event, at 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.
1.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
1.8 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by the Company shall bind its successors and assigns, whether so
expressed or not.
1.9 SEPARABILITY CLAUSE. In case any provision in this Agreement or in
the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions hereof and thereof shall
not in any way be affected or impaired thereby.
1.10 BENEFITS OF AGREEMENT. Nothing in this Agreement or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefits or any legal
-7-
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.
1.11 GOVERNING LAW. This Agreement and the Securities shall be governed
by and construed in accordance with the laws of the State of New York.
1.12 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.
1.13 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.
1.14 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.
2. SECURITY CERTIFICATE FORMS.
2.1 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:
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.
2.2 FORM OF AGENT'S CERTIFICATE OF AUTHENTICATION. The form of the
Agent's certificate of authentication of the Securities shall be in
substantially the form set forth on the form of the Security Certificates.
-8-
3. THE SECURITIES.
3.1 TITLE AND TERMS; DENOMINATIONS. The aggregate number of Securities
evidenced by Security Certificates authenticated, executed on behalf of the
Holders and delivered hereunder is limited to _________(subject to increase up
to a maximum of _______________ to the extent the 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.
3.2 RIGHTS AND OBLIGATIONS EVIDENCED BY THE SECURITY CERTIFICATES. Each
Security Certificate shall evidence the number of Securities specified therein,
with each such Security representing the ownership by the Holder thereof of
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.
3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. Upon the execution
and delivery of this Agreement, and at any time and from time to time
thereafter, the Company may deliver Security Certificates executed by the
Company to the Agent for authentication, execution on behalf of the Holders and
delivery, together with its Issuer Order for authentication of such Security
Certificates, and the Agent in accordance with such Issuer Order shall
authenticate, execute on behalf of the Holder and deliver such Security
Certificates.
The Security Certificates shall be executed on behalf of the Company by
its 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 of flees prior to the authentication and delivery of such Security
Certificates or did not hold such of rices 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.
-9-
3.4 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 entry herewith, be determined by the officers of the
Company executing such Security Certificates, as evidenced by their execution of
the Security Certificates.
If temporary Security Certificates are issued, the Company will cause
definitive Security Certificates to be prepared without unreasonable delay.
After the preparation of definitive Security Certificates, the temporary
Security Certificates shall be exchangeable for definitive Security Certificates
upon surrender of the temporary Security Certificates at the Corporate Trust
Office, at the expense of the Company and without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Security Certificates,
the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
one or more definitive Security Certificates of authorized denominations and
evidencing a like number of Securities as the temporary Security Certificate or
Security Certificates so surrendered. Until so exchanged, the temporary Security
Certificates shall in all respects evidence the same benefits and the same
obligations with respect to the Securities evidenced thereby as definitive
Security Certificates.
3.5 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The Agent shall
keep at the Corporate Trust Office a register (the register maintained in such
office being herein referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Agent shall provide for the
registration of Security Certificates and of transfers of Security Certificates
(the Agent, in such capacity, the "Security Registrar").
Upon surrender for registration of transfer of any Security Certificate
at the Corporate Trust Office, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the designated
transferee or transferees, and deliver, in the name of the designated transferee
or transferees, one or more new 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
-10-
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
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:
(a) 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.
(b) 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.
(c) Subject to Clause (b) 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.
(d) 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.
3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITY CERTIFICATES. If any
mutilated Security Certificate is surrendered to the Agent, the Company shall
execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holder, and deliver in exchange therefor, a new Security
Certificate, evidencing the same number of Securities and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i) evidence to
their satisfaction of the destruction, loss or theft of any Security
Certificate, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of any of them harmless, then, in the absence of
notice to the Company or the Agent that such Security Certificate has been
acquired by a bona fide purchaser, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or stolen Security
Certificate, a new Security Certificate, evidencing the same number of
Securities and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder, and deliver to the Holder, a
Security Certificate on or after the Final Settlement Date or the Termination
Date. In lieu of delivery of a new Security Certificate, upon satisfaction of
the applicable conditions specified above in this Section and receipt of
appropriate registration or transfer instructions from such Holder, the Agent
shall (i) if the Final Settlement Date has occurred, deliver the shares of
Common Stock issuable in respect of the Purchase Contracts forming a part of the
Securities evidenced by such Security Certificate, or (ii) if a Termination
Event shall have occurred prior to the Final Settlement Date, transfer the
principal amount of the Pledged Securities evidenced thereby, in each case
subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
-11-
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.
3.7 PERSONS DEEMED OWNERS. Prior to due presentment of a Security
Certificate for registration of transfer, the Company and the Agent, and any
agent of the Company or the Agent, may treat the Person in whose name such
Security Certificate is registered as the owner of the Securities evidenced
thereby, for the purpose of receiving payments of 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
Certificate, the operation of customary practices governing the exercise of
rights of such Depositary (or its nominee) as Holder of such Global Security
Certificate.
3.8 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.
3.9 SECURITIES NOT SEPARABLE. Notwithstanding anything contained herein
or in the Security Certificates to the contrary, for so long as the Purchase
Contract underlying a Security remains in effect such Security shall not be
separable into its constituent parts, and the rights and obligations of the
Holder of such Security in respect of the 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.
-12-
4. THE PLEDGED SECURITIES.
4.1 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.
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.
4.2 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 transferable 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.
-13-
5. THE PURCHASE CONTRACTS.
5.1 PURCHASE OF SHARES OF COMMON STOCK. Each Purchase Contract shall
obligate the Holder of the related Security to purchase, and the Company to
sell, on the Final Settlement Date at a price equal to the Stated Amount, a
number of shares of Common Stock equal to the Settlement Rate, unless, on or
prior to the Final Settlement Date, there shall have occurred a Termination
Event or an Early Settlement with respect to the Security of which such Purchase
Contract is a part. The "Settlement Rate" is equal to (a) if the Applicable
Market Value (as defined below) is greater than $__________ (the "Threshold
Appreciation Price"), _____________ of a share of Common Stock per Purchase
Contract, (b) if the Applicable Market Value is less than or equal to the
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 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.
5.2 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
-14-
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.
5.3 DEFERRAL OF PAYMENT DATES FOR CONTRACT FEE. The Company shall have
the right, at any time prior to the Final Settlement Date, to defer the payment
of any or all of the Contract Fees otherwise payable on any Payment Date, but
only if the Company shall give the Holders and the Agent written notice of its
election to defer such payment (specifying the amount to be deferred) at least
ten (10) 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 (2) 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 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.
5.4 PAYMENT OF PURCHASE PRICE. The purchase price for the shares of
Common Stock purchased pursuant to a Purchase Contract shall be paid by
application of payments received by the Company on the Final Settlement Date
from the Collateral Agent pursuant to the Pledge Agreement in respect of the
principal 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.
5.5 ISSUANCE OF SHARES OF COMMON STOCK. Unless a Termination Event shall
have occurred on or prior to the Final Settlement Date, on the Final Settlement
Date, upon its receipt of payment in full of the purchase price for the shares
of Common Stock purchased by the Holders pursuant to the foregoing provisions of
this Article, and subject to Section 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
-15-
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.
5.6 ADJUSTMENT OF SETTLEMENT RATE.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on any class of Common Stock of the Company in Common
Stock, the Settlement Rate in effect at the opening of business on the
day following the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution shall be
increased by dividing such Settlement Rate by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
increase to become effective immediately after the opening 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 forty-five (45) days after the record date for the
determination of stockholders entitled to receive such rights, options
or warrants, to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price per share of the
Common Stock on the date fixed for the determination of stockholders
entitled to receive such rights, options or warrants (other than
pursuant to a dividend reinvestment plan), the Settlement Rate in effect
at the opening of business on the day following the date fixed for such
determination shall be increased by dividing such Settlement Rate by a
fraction of which the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common
Stock so offered for subscription or purchase would purchase at such
Current Market Price and the denominator shall be the number of shares
of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock so
offered for subscription or purchase, such increase to become effective
immediately after the opening of business on the day following the date
fixed for such determination. For the purposes of this paragraph (2),
the number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company shall not issue any
such rights, options or warrants in respect of shares of Common Stock
held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Settlement Rate in effect at the opening of business on
-16-
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 twelve (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 twelve (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 ten percent (10%) of the product of the Current Market
Price per share of the Common Stock on the date for the determination of
holders of shares of Common Stock entitled to receive such distribution
times the number of shares of Common Stock outstanding on such date,
then, and in each such case, immediately after the close of business on
such date for determination, the Settlement Rate shall be increased so
that the same shall equal the rate determined by dividing the Settlement
Rate in effect immediately prior to the close of business on the date
fixed for determination of the stockholders 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 ten percent (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
-17-
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 twelve (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 twelve (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 ten percent (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 Com mon Stock outstanding
(including any tendered shares) on the Expiration Time less (B) the
amount of cash plus the fair market value (determined as aforesaid) of
the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or
exchange offer) of Purchased Shares, and (ii) the denominator of which
shall be equal to the product of (A) the Current Market Price per share
of the Common Stock as of the Expiration Time and (B) the number of
shares of Common Stock 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 re classification shall be deemed to be "the day
upon which such subdivision be comes 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 five (5)
consecutive Trading Days selected by the Company commencing not more
than twenty (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.
-18-
(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 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
agree merit shall provide for adjustments which, for events subsequent to the
effective date of such supplemental agreement, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section. The above
provisions of this Section shall similarly apply to successive Reorganization
Events.
-19-
5.7 NOTICE OF ADJUSTMENTS AND CERTAIN OTHER EVENTS.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the adjusted Settlement Rate in accordance
with Section 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 ten (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.
5.8 TERMINATION EVENT; NOTICE. The Purchase Contracts and the
obligations and rights of the Company and the Holders thereunder, including,
without limitation, the rights of the Holders to receive and the obligation of
the Company to pay any Contract Fee, shall immediately and automatically
terminate, without the necessity of any notice or action by any Holder, the
Agent or the Company, if, on or prior to the Final Settlement Date, a
Termination Event shall have occurred. Upon the occurrence of a Termination
Event, the Company shall give written notice to the Agent, the Collateral Agent
and to the Holders, at their addresses as they appear in the Security Register.
Upon and after the occurrence of a Termination Event, the Securities shall
thereafter represent the right to receive the Pledged Securities forming a part
of such Securities in accordance with the provisions of Section 402 and the
Pledge Agreement.
5.9 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 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 Of flee 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
-20-
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 Of flee 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.
(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.
5.10 NO FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares of Common Stock shall be issued or delivered upon settlement
on the Final Settlement Date or upon Early Settlement of any Purchase Contracts.
If Security Certificates evidencing more than one Purchase Contract shall be
surrendered for settlement at one time by the same Holder, the number of full
shares of Common Stock which shall be delivered upon settlement shall be
computed on the basis of the aggregate number of Purchase Contracts evidenced by
the Security Certificates so surrendered. Instead of any fractional share of
Common Stock which would otherwise be deliverable upon settlement of any
Purchase Contracts on the Final Settlement Date or upon Early Settlement, the
Company, through the Agent, shall make a cash payment in respect of such
fractional interest in an amount equal to the value of such fractional shares at
the Closing Price per share on the Trading Day immediately preceding the Final
Settlement Date or the related Early Settlement Date, respectively. The Company
shall provide the Agent from time to time with sufficient funds to permit the
Agent to make all cash payments required by this Section 510 in a timely manner.
5.11 CHARGES AND TAXES. The Company will pay all stock transfer and
similar taxes attributable to the initial issuance and delivery of the shares of
Common Stock pursuant to the Purchase Contracts; provided, however, that the
Company shall not be required to pay any such tax or taxes 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
-21-
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.
6. REMEDIES.
6.1 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE CONTRACT FEE.
Notwithstanding any other provision in this Agreement, the Holder of any
Security shall have the right, which is absolute and unconditional (subject to
the right of the Company to defer payment thereof pursuant to Section 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.
6.2 RESTORATION OF RIGHTS AND REMEDIES. If any Holder of Securities has
instituted any proceeding to enforce any right or remedy under this Agreement
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company and such Holder shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of such Holder shall continue as though no
such proceeding had been instituted.
6.3 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided with
respect to the replacement of mutilated, destroyed, lost or stolen Security
Certificates in the last paragraph of Section 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.
6.4 DELAY OR OMISSION NOT WAIVER. No delay or omission of any Holder to
exercise any right or remedy shall impair any such right or remedy or constitute
a waiver of any such right. Every right and remedy given by this Article or by
law to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by such Holders.
6.5 UNDERTAKING FOR COSTS. All parties to this Agreement agree, and each
Holder of any Security by his acceptance of the Security Certificate evidencing
such Security shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Agreement, or in any suit against the Agent for any action taken, suffered
or omitted by it as Agent, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided that
the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Agent, to any suit instituted by any
Holder of Securities, or group of Holders, holding in the aggregate more than
ten percent (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.
6.6 WAIVER OF STAY OR EXTENSION LAWS. The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Agreement; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the
-22-
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.
7. THE AGENT.
7.1 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 willful misconduct, except that
(i) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(ii) 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
(iii) no provision of this Agreement shall require the Agent
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of\ any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of this
Section.
7.2 NOTICE OF DEFAULT. Within ninety (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.
7.3 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
-23-
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 for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
7.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The recitals
contained herein and in the Security Certificates shall be taken as the
statements of the Company and the Agent assumes no responsibility for their
correctness. The Agent makes no representations as to the validity or
sufficiency of this Agreement or of the Securities. The Agent shall not be
accountable for the use or application by the Company of the proceeds in re
specs of the Purchase Contracts.
7.5 MAY HOLD SECURITIES. Any Security Registrar or any other agent of
the Company, or the Agent, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with the Company with
the same rights it would have if it were not Security Registrar or such other
agent, or the Agent.
7.6 MONEY HELD IN TRUST. Money held by the Agent in trust hereunder need
not be segregated from the other funds except to the extent required by law. The
Agent shall be under no obligation to invest or pay interest on any money
received by it hereunder except as otherwise agreed with the Company.
7.7 COMPENSATION AND REIMBURSEMENT. The Company agrees:
(i) to pay to the Agent from time to time reasonable
compensation for all services rendered by it hereunder;
(ii) 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
(iii) 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.
7.8 CORPORATE AGENT REQUIRED; ELIGIBILITY. There shall at all times be
an Agent hereunder which shall be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $100,000,000, subject
to supervision or examination by Federal or State authority and having its
-24-
Corporate Trust Office in the Borough of Manhattan, The City of New York, if
there be such a corporation in the Borough of Manhattan, The City of New York
qualified and eligible under this Article and willing to act on reasonable
terms. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Agent shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
7.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 710.
(b) The Agent may resign at any time by giving written notice thereof to
the Company sixty (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 thirty (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:
(i) 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
(6) months, or
(ii) 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
(iii) 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
(6) 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.
7.10 CORPORATE AGENT REQUIRED; ELIGIBILITY. There shall at all times be
an Agent hereunder which shall be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $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 willing to act on reasonable
terms. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Agent shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
-25-
7.11 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 sixty (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 thirty (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:
(i) 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
(6) months, or
(ii) 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
(iii) 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
(6) 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 bona fide Holder of a
Security for at least six (6) months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to give,
notice of each resignation and each removal of the Agent and each appointment of
a successor Agent by mailing written notice of such event by first class mail,
postage prepaid, to all Holders of Securities as their names and addresses
appear in the Security Register. Each notice shall include the name of the
successor Agent and the address of its Corporate Trust Of rice.
7.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Agent, every
such successor Agent so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Agent shall become
effective and such successor Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers, agencies and duties of the
retiring Agent; but, on the request of the Company or the successor Agent, such
retiring Agent shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Agent all the rights, powers and
trusts of the retiring Agent and shall duly assign, transfer and deliver to such
successor Agent all property and money held by such retiring Agent hereunder.
-26-
(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.
7.13 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 of rice, 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.
7.14 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Agent in its
capacity as Security Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Agent, and furnish to the Agent reasonable proof that each
such applicant has owned a Security for a period of at least six (6) 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 (5) 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.
7.15 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.
7.16 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.
-27-
(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.
8. SUPPLEMENTAL AGREEMENTS.
8.1 SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF HOLDERS. Without the
consent of any Holders, the Company and the Agent, at any time and from time to
time, may enter into one or more agreements supplemental hereto, in form
satisfactory to the Company and the Agent, for any of the following purposes:
(i) 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
(ii) 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
(iii) to evidence and provide for the acceptance of
appointment hereunder by a successor Agent; or
(iv) to make provision with respect to the rights of Holders
pursuant to the requirements of Section 506(b); or
(v) 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.
8.2 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 Agreement or the rights of the Holders in respect of the
Securities, provided, however, that no such supplemental agreement shall,
without the consent of the Holder of Each Outstanding Security affected thereby,
(i) change any Payment Date;
(ii) 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;
(iii) reduce any Contract Fee or change any place where, or
the coin or currency in which, any Contract Fee is payable;
(iv) impair the right to institute suit for the enforcement of
any Purchase Contract;
(v) 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
-28-
(vi) 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
ap prove the particular form of any proposed supplemental agreement, but it
shall be sufficient if such Act shall approve the substance thereof.
8.3 EXECUTION OF SUPPLEMENTAL AGREEMENTS. In executing, or accepting the
additional agencies created by, any supple mental 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.
8.4 EFFECT OF SUPPLEMENTAL AGREEMENTS. Upon the execution of any
supplemental agreement under this Article, this Agreement shall be modified in
accordance therewith, and such supplemental agreement shall form a part of this
Agreement for all purposes; and every Holder of Security Certificates
theretofore or thereafter authenticated, executed on behalf of the Holders and
delivered hereunder shall be bound thereby.
8.5 REFERENCE TO SUPPLEMENTAL AGREEMENTS. Security Certificates
authenticated, executed on behalf of the Holders and delivered after the
execution of any supplemental agreement pursuant to this Article may, and shall
if required by the Agent, bear a notation in form ap proved by the Agent as to
any matter provided for in such supplemental agree meet. 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.
9. CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
9.1 COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY PROPERTY EXCEPT
UNDER CERTAIN CONDITIONS. The Company covenants that it will not merge or
consolidate with any other Person or sell or convey all or substantially all of
its assets to any Person, except that the Company may merge or consolidate with,
or sell or convey all or substantially all of its assets to, any other Person,
provided that (i) the Company shall be the continuing corporation, or the
successor (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof and
such corporation shall assume the obligations of the Company under the Purchase
Contracts, this Agreement and the Pledge Agreement by one or more supplemental
agreements in form satisfactory to the Agent and the Collateral Agent, executed
and delivered to the Agent and the Collateral Agent by such corporation, and
(ii) the Company or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any covenant or condition hereunder, under any
of the Securities or under the Pledge Agreement.
9.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any such
consolidation, merger, sale or conveyance and upon any such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the Company. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of Providian Financial
Corporation, any or all of the Security Certificates evidencing Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Agent; and, upon the order of such successor corporation,
instead of the Company, and subject to all the terms, conditions and limitations
in this Agreement prescribed, the Agent shall authenticate and execute on behalf
of the Holders and deliver any Security Certificates which previously shall have
been signed and delivered by the officers of the Company to the Agent for
authentication and execution, and any Security Certificate evidencing Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Agent for that purpose. All the Security Certificates so issued
shall in all respects have the same legal rank and benefit under this Agreement
as the Security Certificates theretofore or thereafter issued in accordance with
the terms of this Agreement as though all of such Security Certificates had been
issued at the date of the execution hereof.
-29-
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.
9.3 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.
10. COVENANTS.
10.1 PERFORMANCE UNDER PURCHASE CONTRACTS. The Company covenants and
agrees for the benefit of the Holders from time to time of the Securities that
it will duly and punctually perform its oblige lions under the Purchase
Contracts in accordance with the terms of the Purchase Contracts and this
Agreement.
10.2 MAINTENANCE OF OFFICE OR AGENCY. The Company will maintain in the
Borough of Manhattan, The City of New York an office or agency where Security
Certificates may be presented or surrendered for acquisition of shares of Common
Stock upon settlement or Early Settlement 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 of rice or
agency. The Company hereby designates as the place of payment for the Securities
the Corporate Trust Of rice and appoints the Agent at its Corporate Trust Office
as paying agent in such city.
10.3 COMPANY TO RESERVE COMMON STOCK. The Company shall at all times
prior to the Final Settlement Date reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock the full
number of shares of Common Stock issuable against tender of payment in respect
of all Purchase Contracts constituting a part of the Securities evidenced by
Outstanding Security Certificates.
10.4 COVENANTS AS TO COMMON STOCK. The Company covenants that all shares
of Common Stock which may be issued against tender of payment in respect of any
Purchase Contract constituting a part of the Outstanding Securities will, upon
issuance, be duly authorized, validly issued, fully paid and nonassessable.
10.5 STATEMENTS OF OFFICERS OF THE COMPANY AS TO DEFAULT. The Company
will deliver to the Agent, within one hundred twenty (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 best knowledge of the signers thereof
the Company is in default
-30-
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.
PROVIDIAN FINANCIAL CORPORATION
By
--------------------------------
Title
-----------------------------
-31-
EXHIBIT A
PROVIDIAN FINANCIAL CORPORATION
______% _____________ 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 __________ percent (___% )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 Providian Financial Corporation, 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 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,
____________199_ (a "Payment Date"), shall, subject to receipt thereof by the
Agent from the Collateral Agent, be paid to the Person in whose name this
Security Certificate (or a Predecessor Security Certificate) is registered at
the close of business on the Record Date next preceding such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Security Certificate to purchase, and the Company to sell, on ____________, (the
"Final Settlement Date"), at a price equal to $____ (the "Stated Amount"), a
number of shares of Common Stock, par value $.01 per share ("Common Stock"), of
the Company, equal to the Settlement Rate, unless on or prior to the Final
Settlement Date there shall have occurred a Termination Event or Early
Settlement with respect to the Security of which such Purchase Contract is a
part, all as provided in the Purchase Contract Agreement and more fully
described on the reverse hereof. The purchase price for the shares of Common
Stock purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Final Settlement Date by application of payment
received in respect of the principal of the 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 __________ percent (___%) per annum of the Stated
Amount, from ___________, computed on the basis of the actual number of days
elapsed in a year of three hundred sixty-five (365) or three hundred sixty-six
(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
A-1
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.
PROVIDIAN FINANCIAL CORPORATION
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:
A-2
Form of Reverse of Security Certificate
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of __________, 1998 (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 (20) 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 mar Let 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 Stock in re
specs 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 cheek 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
-1-
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 three hundred sixty-five (365) or three hundred
sixty-six (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 Of rice 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 Con tracts
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 Con tracts 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
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.
-2-
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.
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
Purchase Contracts underlying the number of Securities evidenced by this
Security Certificate be registered in the name of, and delivered, together with
a check in payment for any fractional share, to the undersigned at the address
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
-3-
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 Tax payer 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 under
lying the number of Securities evidenced by this Security Certificate specified
below. The option to effect Early Settlement may be exercised only with respect
to Purchase Contracts underlying Securities with an aggregate Stated Amount
equal to $___________ or an integral multiple thereof. The undersigned Holder
directs that a certificate for shares of Common Stock deliverable upon such
Early Settlement be registered in the name of, and delivered, together with a
check in payment for any fractional share and any Security Certificate
representing any Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is not effected, to the undersigned at the address
indicated below unless a different name and address have been indicated below.
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 Tax payer Identification Number, if any
-4-