Exhibit 4.3
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PURCHASE CONTRACT AGREEMENT
BETWEEN
SIERRA PACIFIC RESOURCES
AND
THE BANK OF NEW YORK,
AS PURCHASE CONTRACT AGENT
--------
DATED AS OF NOVEMBER 16, 2001
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TABLE OF CONTENTS
PAGE
ARTICLE I
Definitions and Other Provisions
of General Applications
Section 1.1. Definitions......................................................................1
Section 1.2. Compliance Certificates and Opinions............................................13
Section 1.3. Form of Documents Delivered to Purchase Contract Agent..........................14
Section 1.4. Acts of Holders; Record Dates...................................................14
Section 1.5. Notices.........................................................................16
Section 1.6. Notice to Holders; Waiver.......................................................16
Section 1.7. Effect of Headings and Table of Contents........................................17
Section 1.8. Successors and Assigns..........................................................17
Section 1.9. Severability....................................................................17
Section 1.10. Benefits of Agreement...........................................................17
Section 1.11. Governing Law; Jurisdiction and Venue...........................................17
Section 1.12. Legal Holidays..................................................................18
Section 1.13. Counterparts....................................................................18
Section 1.14. Inspection of Agreement.........................................................18
ARTICLE II
Certificate Forms
Section 2.1. Forms of Certificates Generally.................................................18
Section 2.2. Form of Purchase Contract Agent's Certificate of Authentication.................20
ARTICLE III
The PIES
Section 3.1. Amount; Form and Denominations..................................................20
Section 3.2. Rights and Obligations Evidenced by the Certificates............................20
Section 3.3. Execution, Authentication, Delivery and Dating..................................21
Section 3.4. Temporary Certificates..........................................................22
Section 3.5. Registration; Registration of Transfer and Exchange.............................22
Section 3.6. Book-Entry Interests............................................................24
Section 3.7. Notices to Holders..............................................................24
Section 3.8. Appointment of Successor Depositary.............................................24
Section 3.9. Definitive Certificates.........................................................24
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates..............................25
Section 3.11. Persons Deemed Owners...........................................................26
Section 3.12. Cancellation....................................................................26
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PAGE
Section 3.13. Creation of Treasury PIES by Substitution of Treasury Securities................27
Section 3.14. Recreation of Corporate PIES....................................................28
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event.....................30
Section 3.16. No Consent to Assumption........................................................30
ARTICLE IV
The Senior Notes
Section 4.1. Interest Payments; Rights to Interest Preserved.................................31
Section 4.2. Interest Rate Reset.............................................................32
Section 4.3. Notice and Voting...............................................................32
ARTICLE V
The Purchase Contracts; The Remarketing
Section 5.1. Purchase of Shares of Common Stock..............................................33
Section 5.2. Purchase Contract Adjustment Payments...........................................35
Section 5.3. Payment of Purchase Price; Remarketing..........................................36
Section 5.4. Issuance of Shares of Common Stock..............................................41
Section 5.5. Adjustment of Settlement Rate and Early Settlement Rate.........................42
Section 5.6. Notice of Adjustments and Certain Other Events..................................48
Section 5.7. Termination Event; Notice.......................................................49
Section 5.8. Cash Settlement.................................................................49
Section 5.9. Early Settlement................................................................52
Section 5.10. Early Settlement Upon Merger....................................................54
Section 5.11. Optional Remarketing............................................................55
Section 5.12. No Fractional Shares............................................................56
Section 5.13. Charges and Taxes...............................................................56
ARTICLE VI
Remedies
Section 6.1. Unconditional Right of Holders to Receive Purchase Contract Adjustment
Payments and to Purchase Shares of Common Stock................................57
Section 6.2. Restoration of Rights and Remedies..............................................57
Section 6.3. Rights and Remedies Cumulative..................................................57
Section 6.4. Delay or Omission Not Waiver....................................................57
Section 6.5. Undertaking for Costs...........................................................57
Section 6.6. Waiver of Stay or Extension Laws................................................58
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PAGE
ARTICLE VII
The Purchase Contract Agent
Section 7.1. Certain Duties and Responsibilities.............................................58
Section 7.2. Notice of Default...............................................................59
Section 7.3. Certain Rights of Purchase Contract Agent.......................................59
Section 7.4. Not Responsible for Recitals or Issuance of PIES................................61
Section 7.5. May Hold PIES...................................................................61
Section 7.6. Money Held in Custody...........................................................61
Section 7.7. Compensation and Reimbursement..................................................62
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility.........................62
Section 7.9. Resignation and Removal; Appointment of Successor...............................63
Section 7.10. Acceptance of Appointment by Successor..........................................64
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.....................64
Section 7.12. Preservation of Information; Communications to Holders..........................65
Section 7.13. No Obligations of Purchase Contract Agent.......................................65
Section 7.14. Tax Compliance..................................................................65
ARTICLE VIII
Supplemental Agreements
Section 8.1. Supplemental Agreements Without Consent of Holders..............................66
Section 8.2. Supplemental Agreements With Consent of Holders.................................66
Section 8.3. Execution of Supplemental Agreements............................................67
Section 8.4. Effect of Supplemental Agreements...............................................68
Section 8.5. Reference to Supplemental Agreements............................................68
ARTICLE IX
Merger, Consolidation Sale or Conveyance
Section 9.1. When Company May Merge, Etc.....................................................68
Section 9.2. Successor Corporation Substituted...............................................69
Section 9.3. Limitation......................................................................69
ARTICLE X
Covenants
Section 10.1. Performance Under Purchase Contracts............................................69
Section 10.2. Maintenance of Office or Agency.................................................70
Section 10.3. Company to Reserve Common Stock.................................................70
Section 10.4. Covenants as to Common Stock....................................................70
Section 10.5. Statements of Officers of the Company as to Default.............................71
Section 10.6. ERISA...........................................................................71
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PAGE
EXHIBITS
EXHIBIT A Form of Face of Corporate PIES Certificate..................................A-1
EXHIBIT B Form of Face of Treasury PIES Certificate ..................................B-1
EXHIBIT C Notice from Holder to Purchase Contract Agent
(Election for Creation of Treasury PIES or Recreation of
Corporate PIES).............................................................C-1
EXHIBIT D Instruction From Holder to Purchase Contract Agent
(Creation of Treasury PIES or Recreation of Corporate PIES).................D-1
EXHIBIT E Notice from Purchase Contract Agent to Holders
(Transfer of Collateral upon Occurrence of a Termination Event).............E-1
EXHIBIT F Notice to Settle by Cash....................................................F-1
EXHIBIT G Notice from Purchase Contract Agent to Remarketing Agent,
Collateral Agent, Trustee and the Company
(Initial, Subsequent or Final Remarketing)..................................G-1
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PURCHASE CONTRACT AGREEMENT, dated as of November 16, 2001,
between
SIERRA PACIFIC RESOURCES, a Nevada corporation (the "Company"), and
THE BANK OF
NEW YORK, a
New York banking corporation, acting as purchase
contract agent for the Holders of PIES from time to time (the "Purchase
Contract Agent").
RECITALS
The Company has duly authorized the execution and delivery of
this Agreement and the Certificates evidencing the PIES.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company, authenticated, executed on behalf
of the Holders and delivered by the Purchase Contract Agent, as provided in
this Agreement, the valid obligations of the Company, and to constitute this
Agreement a valid agreement of the Company, in accordance with its terms,
have been done.
For and in consideration of the premises and the purchase of
the PIES by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS
Section 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 nouns and pronouns of the masculine gender include the feminine
and neuter genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States;
(c) 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, Exhibit or other subdivision;
(d) the following terms have the meanings given to them in this
Section 1.1(d):
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.4.
2
"Adjusted Purchase Contract Adjustment Payment Rate" means,
with respect to any Reset Transaction, the rate per annum that is the
arithmetic average of the rates quoted by two Reference Dealers selected by
the Company as the rate at which Purchase Contract Adjustment Payments should
accrue so that the fair closing price, expressed in dollars, of a Corporate
PIES immediately after the later of (i) public announcement of such Reset
Transaction or (ii) public announcement of a change in dividend policy in
connection with such Reset Transaction will equal the average Trading Price
of a Corporate PIES for the 20 Trading Days immediately preceding the date of
public announcement of such Reset Transaction; PROVIDED that the Adjusted
Purchase Contract Adjustment Payment Rate shall not be less than 1.07% per
annum.
"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.
"Affiliated Person" with respect to any specified Person means
any other Person that is an Affiliate of such specified Person.
"Agreement" means this
Purchase Contract Agreement as the same
may be amended, modified or supplemented from time to time in accordance with
the terms hereof.
"Applicable Closing Price" has the meaning set forth in Section
5.1.
"Applicants" has the meaning set forth in Section 7.12(b).
"Authorized Newspaper" means THE WALL STREET JOURNAL, another
daily newspaper in the English language of general circulation in
New York,
New York that is acceptable to the Remarketing Agent or, at the discretion of
the Remarketing Agent after consultation with the Company, a nationally
recognized quotation system that would be an effective medium of publicizing
the event to be publicized.
"Bankruptcy Code" means Title 11 of the United States Code, or
any other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry
Interest, a Person who is the beneficial owner of such Book-Entry Interest as
reflected on the books of the Depositary or on the books of a Person
maintaining an account with such Depositary (directly as a Depositary
Participant or as an indirect participant, in each case in accordance with
the rules of such Depositary).
"Board of Directors" means the board of directors of the
Company or a duly authorized committee of that board.
"Board Resolution" means one or more resolutions or unanimous
written consents of the Board of Directors, a copy each of which has been
certified by the Secretary or an
3
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such
certification and delivered to the Purchase Contract Agent.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Depositary as described in Section 3.6.
"Business Day" means any day other than a Saturday or Sunday or
a day on which banking institutions in The City of
New York are authorized or
required by law or executive order to remain closed.
"Cash Merger" has the meaning set forth in Section 5.10(a).
"Cash Merger Date" has the meaning set forth in Section 5.10(a).
"Cash Settlement" has the meaning set forth in Section
5.8(a)(i).
"Certificate" means a Corporate PIES Certificate or a Treasury
PIES Certificate.
"Closing Price" has the meaning set forth in Section 5.1.
"Code" means the Internal Revenue Code of 1986, as amended, and
the rules and regulations promulgated thereunder.
"Collateral" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Collateral Account" has the meaning set forth in Section 1 of
the Pledge Agreement.
"Collateral Agent" means ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as Collateral Agent under the Pledge Agreement until a successor
Collateral Agent shall have become such pursuant to the applicable provisions
of the Pledge Agreement, and thereafter "Collateral Agent" shall mean the
Person who is then the Collateral Agent thereunder.
"Collateral Substitution" means the substitution of Treasury
Securities, for a Holder's Senior Notes, pursuant to Section 3.13 of this
Agreement and Section 5.2 of the Pledge Agreement, and the substitution of a
Holder's Senior Notes for Treasury Securities, pursuant to Section 3.14 of
this Agreement and Section 5.3 of the Pledge Agreement.
"Common Stock" means the common stock, par value $1.00 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
pursuant to the applicable provision of this Agreement, and thereafter
"Company" shall mean such successor.
"Constituent Person" has the meaning set forth in Section
5.5(b).
4
"Corporate PIES" means the collective rights and obligations of
a Holder of a Corporate PIES Certificate in respect of the Senior Notes or,
if substituted therefore, in respect of the Treasury Portfolio Interest, in
each case, subject to the Pledge thereof, and the related Purchase Contract.
"Corporate PIES Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Corporate PIES
specified on such certificate.
"Corporate PIES Register" and "Corporate PIES Registrar" have
the respective meanings specified in Section 3.5.
"Corporate Trust Office" means the office of the Purchase
Contract Agent at which, at any particular time, its corporate trust business
shall be principally administered, which office at the date hereof is located
at ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Trust Administration.
"Coupon Rate" means the percentage rate per annum at which each
Senior Note will bear interest initially.
"Current Market Price" has the meaning specified in Section
5.5(a)(8).
"Depositary" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the PIES and in whose name, or in the name of a nominee of
that organization, shall be registered a Global Certificate and which shall
undertake to effect book-entry transfers and pledges of the PIES. Initially,
DTC shall be the Depositary.
"Depositary Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the
Depositary effects book-entry transfers and pledges of securities deposited
with the Depositary.
"Dividend Yield" means, with respect to any security for any
period, the dividends paid or proposed to be paid pursuant to an announced
dividend policy on such security for such period divided by, if with respect
to dividends paid on such security, the average Closing Price of such
security during such period and, if with respect to dividends so proposed to
be paid on such security, the Closing Price of such security on the effective
date of the related Reset Transaction.
"DTC" means The Depository Trust Company, the initial
Depositary.
"Early Settlement" has the meaning set forth in Section 5.9(a).
"Early Settlement Amount" has the meaning set forth in Section
5.9(a).
"Early Settlement Date" has the meaning set forth in Section
5.9(a).
"Early Settlement Rate" has the meaning set forth in Section
5.9(b).
5
"Election Date" means the fourth Business Day prior to the
Initial Remarketing Date.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to time, and
the rules and regulations promulgated thereunder.
"Expiration Date" has the meaning set forth in Section 1.4(e).
"Expiration Time" has the meaning set forth in Section
5.5(a)(6).
"Failed Remarketing" has the meaning set forth in Section
5.3(c).
"Final Remarketing" has the meaning set forth in the
Remarketing Agreement.
"Final Remarketing Date" has the meaning set forth in the
Remarketing Agreement.
"Global Certificate" means a Certificate that is issued in
global form, evidencing all or part of the PIES, and is registered in the
name of a Depositary or a nominee thereof.
"Holder" means, with respect to a PIES, the Person in whose
name the PIES evidenced by a Corporate PIES Certificate and/or a Treasury
PIES Certificate is registered in the related Corporate PIES Register and/or
the Treasury PIES Register, as the case may be; PROVIDED, HOWEVER, that in
determining whether the Holders of the requisite number of Corporate PIES
and/or Treasury PIES have Acted on any matter, then for the purpose of such
determination only (and not for any other purpose hereunder), if the PIES
remains in the form of one or more Global Certificates and if the Depositary
which is the registered holder of such Global Certificate has sent an omnibus
proxy assigning voting rights to the Depositary Participants to whose
accounts the PIES are credited on the applicable record date, the term
"Holder" shall mean such Depositary Participant acting at the direction of
the Beneficial Owners.
"Indenture" means the Indenture, dated as of May 1, 2000,
between the Company and the Trustee (the "Original Indenture") and the
Officers' Certificate, dated as of November 16, 2001 establishing the terms
and other provisions of the Senior Notes pursuant to the Original Indenture
(the "Indenture Officers' Certificate" and together with the Original
Indenture, the "Indenture"), as the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof.
"Initial Remarketing" has the meaning set forth in the
Remarketing Agreement. "Initial Remarketing Date" has the meaning set forth
in Remarketing Agreement.
"Issuer Order" or "Issuer Request" means a written request
or order signed in the name of the Company by (i) either its Chief Executive
Officer, its President or one of its Vice
6
Presidents and (ii) either its Corporate Secretary or one of its Assistant
Corporate Secretaries or its Treasurer or one of its Assistant Treasurers,
and delivered to the Purchase Contract Agent.
"Merger Early Settlement" has the meaning set forth in Section
5.10.
"Merger Early Settlement Amount" has the meaning set forth in
Section 5.10(b).
"Merger Early Settlement Date" has the meaning set forth in
Section 5.10(a)(i).
"non-electing share" has the meaning set forth in Section
5.5(b).
"NYSE" means the
New York Stock Exchange, Inc.
"Officers' Certificate" means a certificate signed by (i)
either the Chief Executive Officer, the President or one of the Vice
Presidents and (ii) either the Corporate Secretary or one of the Assistant
Corporate Secretaries or the Treasurer or one of the Assistant Treasurers, of
the Company, and delivered to the Purchase Contract Agent.
"Opinion of Counsel" means a written opinion of counsel, which
may be counsel for the Company (and who may be an employee of the Company),
and which shall be reasonably acceptable to the Purchase Contract Agent.
"Outstanding PIES" means, with respect to any Corporate PIES or
Treasury PIES and as of the date of determination, all Corporate PIES or
Treasury PIES evidenced by Certificates theretofore authenticated, executed
and delivered under this Agreement, EXCEPT:
(1) If a Termination Event has occurred, Corporate PIES and
Treasury PIES for which the related Senior Notes, the Treasury Portfolio
or Treasury Securities, as the case may be, have been theretofore
deposited with the Purchase Contract Agent in trust for the Holders of
such Corporate PIES or Treasury PIES, as the case may be;
(2) Corporate PIES and Treasury PIES evidenced by Certificates
theretofore cancelled by the Purchase Contract Agent or delivered to the
Purchase Contract Agent for cancellation or deemed cancelled pursuant to
the provisions of this Agreement; and
(3) Corporate PIES and Treasury PIES evidenced by Certificates
in exchange for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered pursuant
to this Agreement, other than any such Certificate in respect of which
there shall have been presented to the Purchase Contract Agent proof
satisfactory to it that such Certificate is held by a BONA FIDE
purchaser in whose hands the Corporate PIES or Treasury PIES evidenced
by such Certificate are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
number of the Corporate PIES or Treasury PIES have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Corporate PIES
or Treasury PIES owned by the Company or any Affiliate of the Company shall
be disregarded and deemed not to be Outstanding PIES, except that, in
determining whether the Purchase Contract Agent shall be protected in relying
7
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Corporate PIES or Treasury PIES which a Responsible Officer of
the Purchase Contract Agent knows to be so owned shall be so disregarded.
Corporate PIES or Treasury PIES so owned which have been pledged in good
faith may be regarded as Outstanding PIES if the pledgee establishes to the
satisfaction of the Purchase Contract Agent the pledgee's right so to act
with respect to such Corporate PIES or Treasury PIES and that the pledgee is
not the Company or any Affiliate of the Company.
"Payment Date" means each February 15, May 15, August 15 and
November 15, commencing February 15, 2002.
"Permitted Investments" has the meaning set forth in Section 1
of the Pledge Agreement.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof or any other entity
of whatever nature.
"PIES" means a Corporate PIES, a Treasury PIES, or the
collective reference to the Corporate PIES and the Treasury PIES, as the case
may be.
"Plan" means an employee benefit plan that is subject to ERISA,
a plan or individual retirement account that is subject to Section 4975 of
the Code or any entity whose assets are considered assets of any such plan.
"Pledge" means the pledge under the Pledge Agreement of the
Senior Notes, any Treasury Portfolio or any Treasury Securities, in each
case, constituting a part of the PIES.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, by and among the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact for the Holders from time to time of the PIES, as the same
may be amended, modified or supplemented from time to time in accordance with
the terms thereof.
"Pledged Senior Notes" has the meaning set forth in Section 1
of the Pledge Agreement.
"Pledged Treasury Portfolio Interest" has the meaning set forth
in Section 1 of the Pledge Agreement.
"Pledged Treasury Securities" has the meaning set forth in
Section 1 of the Pledge Agreement.
"Predecessor Certificate" means a Predecessor Corporate PIES
Certificate or a Predecessor Treasury PIES Certificate.
8
"Predecessor Corporate PIES Certificate" of any particular
Corporate PIES Certificate means every previous Corporate PIES Certificate
evidencing all or a portion of the rights and obligations of the Company and
the Holder under the Corporate PIES evidenced thereby; and, for the purposes
of this definition, any Corporate PIES Certificate authenticated and
delivered under Section 3.10 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Corporate PIES Certificate shall be deemed to
evidence the same rights and obligations of the Company and the Holder as the
mutilated, destroyed, lost or stolen Corporate PIES Certificate.
"Predecessor Treasury PIES Certificate" of any particular
Treasury PIES Certificate means every previous Treasury PIES Certificate
evidencing all or a portion of the rights and obligations of the Company and
the Holder under the Treasury PIES evidenced thereby; and, for the purposes
of this definition, any Treasury PIES Certificate authenticated and delivered
under Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost
or stolen Treasury PIES Certificate shall be deemed to evidence the same
rights and obligations of the Company and the Holder as the mutilated,
destroyed, lost or stolen Treasury PIES Certificate.
"Proceeds" has the meaning set forth in Section 1 of the Pledge
Agreement.
"Purchase Contract" means, with respect to any PIES, the
contract contained in this Agreement and forming a part of such PIES and
obligating (i) the Company to sell, and the Holder of such PIES to purchase,
shares of Common Stock and (ii) the Company to pay to the Holder Purchase
Contract Adjustment Payments, in each case, on the terms and subject to the
conditions set forth in Article Five.
"Purchase Contract Adjustment Payments" means the payments
payable by the Company on the Payment Dates in respect of each Purchase
Contract, equal to (a) if a Reset Transaction has not occurred, 1.07% per
annum of the Stated Amount or (b) following the occurrence of a Reset
Transaction, the Adjusted Purchase Contract Adjustment Payment Rate related
to such Reset Transaction until any succeeding Reset Transaction shall occur,
in either case computed (i) for any full quarterly period on the basis of a
360-day year of twelve 30-day months, (ii) for any period shorter than a full
quarterly period for which such payments are calculated, on the basis of a
30-day month and (iii) for periods of less than a month, the actual number of
days elapsed per 30-day month.
"Purchase Contract Agent" means the Person named as the
"Purchase Contract Agent" in the first paragraph of this Agreement until a
successor Purchase Contract Agent shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Purchase Contract
Agent" shall mean such Person.
"Purchase Contract Settlement Date" means November 15, 2005.
"Purchase Contract Settlement Fund" has the meaning set forth
in Section 5.4.
"Purchase Price" has the meaning set forth in Section 5.1.
"Purchased Shares" has the meaning set forth in Section
5.5(a)(6).
9
"Record Date" for the Purchase Contract Adjustment Payments
payable on any Payment Date means the fifteenth Business Day prior to such
Payment Date.
"Reference Dealer" means a dealer engaged in the trading of
convertible securities.
"Reference Price" has the meaning set forth in Section 5.1.
"Register" means the Corporate PIES Register and the Treasury
PIES Register.
"Registrar" means the Corporate PIES Registrar and the Treasury
PIES Registrar.
"Remarketing" means the remarketing of the Remarketing Senior
Notes pursuant to the Remarketing Procedures.
"Remarketing Agent" has the meaning set forth in Section 5.3(b).
"Remarketing Agreement" means the Remarketing Agreement, dated
as of the date hereof, between the Company and the Remarketing Agent, as the
same may be amended, modified or supplemented from time to time in accordance
with the terms thereof.
"Remarketing Date" means the date of any Successful Remarketing.
"Remarketing Fee" has the meaning set forth in Section 5.3(b).
"Remarketing Procedures" means, collectively, the procedures
and requirements relating to the Remarketing and the determination of the
Reset Rate as set forth in the Indenture, this Agreement, the Pledge
Agreement and the Remarketing Agreement.
"Remarketing Senior Notes" has the meaning set forth in Section
5.3(b).
"Remarketing Settlement Date" means the date of the settlement
of any Successful Remarketing, which will be three Business Days after such
Remarketing.
"Remarketing Value" means the sum of
(1) Unless the Remarketing occurs on the Final Remarketing
Date, the value on the Remarketing Date of U.S. Treasury securities that
will mature or pay, on or prior to the Payment Date falling on the
Purchase Contract Settlement Date, an amount of cash equal to the
aggregate interest that is scheduled to be payable on that Payment Date,
on (i) the Senior Notes that are included in Corporate PIES and (ii) the
Separated Senior Notes, in each case, which are participating in the
Remarketing, assuming for that purpose that the interest rate on the
Senior Notes is equal to the Coupon Rate;
(2) the value on the Remarketing Date of U.S. Treasury
securities that will pay, on or prior to the Purchase Contract
Settlement Date, an amount of cash equal to the Stated Amount of (i)
such Senior Notes that are included in Corporate PIES and (ii) the
Separated Senior Notes, in each case, which are participating in the
Remarketing; and
10
(3) the Remarketing Fee;
PROVIDED that, for purposes of each of clauses (1) through (3) above,
the Remarketing Value shall be calculated on the assumptions that (i)
the U.S. Treasury securities are highly liquid securities and mature on
or within 35 days prior to the Purchase Contract Settlement Date, as
determined in good faith by the Remarketing Agent in a manner intended
to minimize the Remarketing Value, and (ii) the U.S. Treasury securities
are valued based on the ask-side price of the Treasury securities at a
time between 9:00 a.m. and 11:00 a.m. (
New York City time), selected by
the Remarketing Agent, on the Remarketing Date as determined on a
third-day settlement basis by a reasonably and customary means selected
in good faith by the Remarketing Agent, plus accrued interest to that
date; and PROVIDED FURTHER that, the Remarketing Agent shall, in its
sole discretion, select the U.S. Treasury securities in connection with
a Remarketing in open market transactions, at a U.S. Treasury auction
and/or from its own account.
"Reorganization Event" has the meaning set forth in Section
5.5(b).
"Reset Rate" has the meaning set forth in the Indenture
Officers' Certificate.
"Reset Transaction" means a merger, consolidation or statutory
share exchange to which the Person that is the issuer of the shares of Common
Stock for which the Purchase Contracts are then to be settled is a party, a
sale of all or substantially all assets of such Person, a recapitalization of
such Common Stock or a distribution described in Section 5.5(a)(4) by such
Person and after the effective date of such transaction the Purchase
Contracts are then to be settled for shares of common stock of a Person (i)
which had a Dividend Yield for the four fiscal quarters immediately preceding
the public announcement thereof which was, or (ii) that announces a dividend
policy prior to the effective date thereof which policy, if implemented,
would result in a Dividend Yield on such shares of Common Stock for the next
four fiscal quarters which would be, more than 250 basis points higher than
the Dividend Yield on the shares of Common Stock for which the Purchase
Contracts are to be settled prior to such effective date for the four fiscal
quarters immediately preceding such public announcement.
"Responsible Officer," means, when used with respect to the
Agent, any officer within the Corporate Trust Administration unit of the
Purchase Contract Agent (or any successor unit or department of the Agent)
located at the Corporate Trust Office of the Purchase Contract Agent who has
direct responsibility for the administration of this Agreement.
"Securities Intermediary" means ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, as Securities Intermediary under the Pledge Agreement
until a successor Securities Intermediary shall have become such pursuant to
the applicable provisions of the Pledge Agreement, and thereafter "Securities
Intermediary" shall mean such successor.
"Senior Notes" means the 7.93% Senior Notes due 2007 to be
issued by the Company under the Indenture, each having a minimum denomination
of $50 and bearing interest, payable on the Payment Dates, initially at the
Coupon Rate to, but excluding, the Remarketing Settlement Date or the
Purchase Contract Settlement Date, as applicable, and, thereafter, at the
Reset Rate, in each case pursuant to the Indenture. Any reference herein to
11
"one Senior Note," "a Senior Note" or "the Senior Note" or any phrase herein
having a similar meaning shall be a reference to a Senior Note in the
principal amount of $50.
"Separated Senior Notes" has the meaning set forth in the
Pledge Agreement.
"Settlement Rate" has the meaning specified in Section 5.1.
"Stated Amount" means, with respect to any one PIES, $50 in
cash.
"Stated Maturity" means, with respect to the Senior Notes,
November 15, 2007.
"Subsequent Remarketing" has the meaning specified in the
Remarketing Agreement.
"Subsequent Remarketing Date" has the meaning specified in the
Remarketing Agreement.
"Successful Final Remarketing" has the meaning specified in the
Pledge Agreement.
"Successful Initial Remarketing" has the meaning specified in
the Pledge Agreement.
"Successful Remarketing" has the meaning specified in the
Remarketing Agreement.
"Successful Subsequent Remarketing" has the meaning specified
in the Pledge Agreement.
"Termination Date" means the date, if any, on which a
Termination Event occurs.
"Termination Event" means the occurrence of any of the
following events:
(1) at any time on or prior to the Purchase Contract Settlement
Date, a judgment, decree or court order shall have been entered granting
relief with respect to the Company under the Bankruptcy Code or any
other similar applicable Federal or state law, adjudicating the Company
to be insolvent, or approving as properly filed a petition seeking
reorganization or liquidation of the Company, and, unless such judgment,
decree or order shall have been entered within 60 days prior to the
Purchase Contract Settlement Date, such decree or order shall have
continued undischarged and unstayed for a period of 60 days;
(2) a judgment, decree or court order for the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company or of its property, or for the winding up or
liquidation of its affairs, shall have been entered, and, unless such
judgment, decree or order shall have been entered within 60 days prior
to the Purchase Contract Settlement Date, such judgment, decree or order
shall have continued undischarged and unstayed for a period of 60 days;
or
12
(3) at any time on or prior to the Purchase Contract
Settlement Date, the Company shall file a petition for relief under the
Bankruptcy Code, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization or liquidation of the Company under the
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 its creditors, or shall admit in writing
its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning set forth in
Section 5.1.
"TIA" means the Trust Indenture Act of 1939, as amended from
time to time, or any successor legislation, and the rules and regulations
promulgated thereunder.
"Trading Day" has the meaning set forth in Section 5.1.
"Trading Price" of a security on any date of determination
means:
(1) the closing sale price (or, if no closing price is
reported, the last reported sale price) of a security (regular way) on
the NYSE on such date;
(2) if such security is not listed for trading on the NYSE on
any such date, the closing sale price as reported in the composite
transactions for the principal United States securities exchange on
which such security is so listed;
(3) if such security is not so listed on a United States
national or regional securities exchange, the closing sale price as
reported by the NASDAQ Stock Market;
(4) if such security is not so reported, the price quoted by
Interactive Data Corporation for such security or, if Interactive Data
Corporation is not quoting such price, a similar quotation service
selected by the Company;
(5) if such security is not so quoted, the average of the
mid-point of the last bid and ask prices for such security from at least
two dealers recognized as market-makers for such security; or
(6) if such security is not so quoted, the average of the last
bid and ask prices for such security from a Reference Dealer.
"Transfer" has the meaning specified in the Pledge Agreement.
"Treasury PIES" means, following the substitution of Treasury
Securities for Senior Notes as collateral to secure a Holder's obligations
under a Purchase Contract, the collective rights and obligations of a Holder
of a Treasury PIES Certificate in respect of such Treasury Securities,
subject to the Pledge thereof, and the related Purchase Contract.
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"Treasury PIES Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Treasury PIES
specified on such certificate.
"Treasury PIES Register" and "Treasury PIES Registrar" have the
respective meanings set forth in Section 3.5.
"Treasury Portfolio" has the meaning specified in Section
5.3(b).
"Treasury Portfolio Interest" has the meaning specified in
Section 5.3(b).
"Treasury Portfolio Return" has the meaning specified in
Section 4.1.
"Treasury Security" means a zero-coupon U.S. Treasury Security
that has a principal amount at maturity of $1,000 and which matures on or
prior to the Business Day prior to the Purchase Contract Settlement Date.
"Trustee" means The Bank of
New York, a
New York corporation,
as trustee under the Indenture, or any successor thereto.
"Underwriters" means ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇, Sachs & Co. and First Union
Securities, Inc., as underwriters under the Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement dated
November 12, 2001 between the Company and the Underwriters relating to the
offer, issuance and sale of the Corporate PIES, as the same may be amended,
modified or supplemented from time to time in accordance with the terms
thereof.
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon
any application or request by the Company to the Purchase Contract Agent to
take any action in accordance with any provision of this Agreement, the
Company shall furnish to the Purchase Contract Agent an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Agreement
relating to the proposed action have been complied with and, if requested by
the Purchase Contract Agent, 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 (other than pursuant to
Section 10.5) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
14
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Purchase Contract Agent.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be
consolidated and form one instrument.
Section 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 an
agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Purchase Contract Agent and, where it is
hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be
15
sufficient for any purpose of this Agreement and (subject to Section 7.1)
conclusive in favor of the Purchase Contract Agent and the Company, if made
in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner which the Purchase
Contract Agent deems sufficient.
(c) The ownership of PIES shall be proved by the Corporate PIES
Register or the Treasury PIES Register, as the case may be.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Certificate shall bind
every future Holder of the same Certificate and the Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered
to be done by the Purchase Contract Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Certificate.
(e) The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding PIES 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 PIES. If any record date is set pursuant to this
paragraph, the Holders of the Outstanding Corporate PIES and the Outstanding
Treasury PIES, as the case may be, on such record date, and no other Holders,
shall be entitled to take the relevant action with respect to the Corporate
PIES or the Treasury PIES, as the case may be, 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 PIES on such record
date. Nothing contained 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 be of no effect), and nothing contained in this paragraph shall
be construed to render ineffective any action taken by Holders of the
requisite number of Outstanding PIES on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to
the Purchase Contract Agent in writing and to each Holder of PIES in the
manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section,
the Company may designate any date as the "Expiration Date" and from time to
time may change the Expiration Date to any earlier or later day; PROVIDED
that no such change shall be effective unless notice of the proposed new
Expiration Date is given to the Purchase Contract Agent in writing, and to
each Holder of PIES in the manner set forth in Section 1.6, on or prior to
the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the Company shall be
deemed to have initially designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. Notwithstanding the foregoing,
no Expiration Date shall be later than the 180th day after the applicable
record date.
16
Section 1.5. Notices.
Any notice or communication is duly given if in writing and
delivered in Person or mailed by first-class mail (registered or certified,
return receipt requested), telecopier (with receipt confirmed) or overnight
air courier guaranteeing next day delivery, to the others' address; provided
that notice shall be deemed given to the Purchase Contract Agent and the
Trustee, as the case may be, only upon receipt thereof:
If to the Company:
Sierra Pacific Resources
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
If to the Purchase Contract Agent:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
If to the Collateral Agent and Securities Intermediary:
▇▇▇▇▇ Fargo Bank Minnesota, National Association
Sixth and Marquette
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
If to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Section 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 its address as it appears in the
applicable Register, not later than the latest date, and not earlier than the
earliest date,
17
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Agreement provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Purchase Contract Agent, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Purchase Contract Agent shall constitute a sufficient notification for every
purpose hereunder.
Section 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.
Section 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.
Section 1.9. Severability.
If any provision in this Agreement is invalid or unenforceable
in any jurisdiction, then, to the fullest extent permitted by law, (i) the
other provisions of this Agreement shall remain in full force and effect in
such jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision of this Agreement in any
jurisdiction shall not in any way affect the validity or enforceability of
such provision in any other jurisdiction.
Section 1.10. Benefits of Agreement.
Nothing contained in this Agreement or in the PIES, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and, to the extent provided hereby, the Holders, any
benefits or any legal or equitable right, remedy or claim under this
Agreement. The Holders from time to time shall be beneficiaries of this
Agreement and shall be bound by all of the terms and conditions hereof and of
the PIES evidenced by their Certificates by their acceptance of delivery of
such Certificates.
Section 1.11. Governing Law; Jurisdiction and Venue.
THIS AGREEMENT AND THE PIES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
18
The Company, the Purchase Contract Agent and the Holders from
time to time of the PIES, acting through the Purchase Contract Agent as their
attorney-in-fact, hereby submit to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Company and the Holders from time to time of the
PIES, acting through the Purchase Contract Agent as their attorney-in-fact,
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
Section 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business Day,
then (notwithstanding any other provision of this Agreement, the Corporate
PIES Certificates or the Treasury PIES Certificates) payments by or owed from
the Company contemplated by this Agreement shall not be made on such date,
but shall be made on the next succeeding Business Day with the same force and
effect as if made on such Payment Date, 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, except that, if such next succeeding Business
Day is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day with the same force and effect as if
made on such Payment Date.
In any case where any Purchase Contract Settlement Date shall
not be a Business Day, notwithstanding any other provision of this Agreement,
the Corporate PIES Certificates or the Treasury PIES Certificates, Purchase
Contracts shall not be settled on such date, but the Purchase Contracts shall
be settled on the immediately following Business Day with the same force and
effect as if performed on the Purchase Contract Settlement Date.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts by
the parties hereto on separate counterparts, each of which, when so executed
and delivered, shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable
times during normal business hours at the Corporate Trust Office for
inspection by any Holder or Beneficial Owner.
ARTICLE II
CERTIFICATE FORMS
Section 2.1. Forms of Certificates Generally.
The Corporate PIES Certificates (including the form of Purchase
Contract forming part of the Corporate PIES evidenced thereby) shall be in
substantially the form set forth
19
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 Corporate PIES are listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of
the Company executing such Corporate PIES Certificates, as evidenced by their
execution of the Corporate PIES Certificates.
The definitive Corporate PIES 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
Corporate PIES evidenced by such Corporate PIES Certificates, consistent with
the provisions of this Agreement, as evidenced by their execution thereof.
The Treasury PIES Certificates (including the form of Purchase
Contracts forming part of the Treasury PIES evidenced thereby) shall be in
substantially the form set forth in Exhibit B 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 Treasury PIES may be listed
or any depositary therefor, or as may, consistently herewith, be determined
by the officers of the Company executing such Treasury PIES Certificates, as
evidenced by their execution of the Treasury PIES Certificates.
The definitive Treasury PIES 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
Treasury PIES evidenced by such Treasury PIES Certificates, consistent with
the provisions of this Agreement, as evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of
the Holders and delivered hereunder shall bear a legend in substantially the
following form:
"This Certificate is a Global Certificate within the meaning of
the
Purchase Contract Agreement hereinafter referred to and is
registered in the name of The Depository Trust Company, a New York
corporation (the "Depositary"), or a nominee of the Depositary. This
Certificate is exchangeable for certificates registered in the name of a
person other than the Depositary or its nominee only in the limited
circumstances described in the
Purchase Contract Agreement and no
transfer of this Certificate (other than a transfer of this Certificate
as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Certificate is presented by an authorized
representative of the Depositary to
Sierra Pacific Resources or its
agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other
name as is requested by an authorized representative of the Depositary
(and any payment hereon is made to Cede & Co. or to such other entity as
is requested by an authorized representative of the Depositary), ANY
TRANSFER, PLEDGE OR OTHER
20
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein."
Section 2.2. Form of Purchase Contract Agent's Certificate of Authentication.
The form of the Purchase Contract Agent's certificate of
authentication of the Corporate PIES shall be in substantially the form set
forth on the form of the Corporate PIES Certificates.
The form of the Purchase Contract Agent's certificate of
authentication of the Treasury PIES shall be in substantially the form set
forth on the form of the Treasury PIES Certificates.
ARTICLE III
THE PIES
Section 3.1. Amount; Form and Denominations.
The aggregate number of PIES evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to 6,000,000 (or up to 6,900,000 if the Underwriters' over-allotment
option pursuant to the Underwriting Agreement is exercised in full), except
for Certificates authenticated, executed and delivered upon registration of
transfer of, in exchange for, or in lieu of, other Certificates pursuant to
Sections 3.4, 3.5, 3.10, 3.13, 3.14, 5.9 or 5.10.
The Certificates shall be issuable only in registered form and
only in denominations of a single Corporate PIES or Treasury PIES and any
integral multiple thereof.
Section 3.2. Rights and Obligations Evidenced by the Certificates.
Each Corporate PIES Certificate shall evidence the number of
Corporate PIES specified therein, with each such Corporate PIES representing
(1) the ownership by the Holder thereof of a beneficial interest in one
Senior Note or, if substituted therefor, the Pledged Treasury Portfolio
Interest, in either case, subject to the Pledge of such Senior Note or such
Pledged Treasury Portfolio Interest, as the case may be, by such Holder
pursuant to the Pledge Agreement, and (2) the rights and obligations of the
Holder thereof and the Company under one Purchase Contract. The Purchase
Contract Agent as attorney-in-fact for, and on behalf of, the Holder of each
Corporate PIES shall pledge, pursuant to the Pledge Agreement, the Senior
Note or, if substituted therefor, the Treasury Portfolio Interest, forming a
part of such Corporate PIES, to the Collateral Agent and grant to the
Collateral Agent a security interest in the right, title and interest of such
Holder in such Senior Note or such Treasury Portfolio Interest, as the case
may be, for the benefit of the Company, to secure the obligation of the
Holder under each Purchase Contract to purchase shares of Common Stock
pursuant to the Purchase Contract.
Upon the formation of Treasury PIES pursuant to Section
3.13, each Treasury PIES Certificate shall evidence the number of Treasury
PIES specified therein, with each such Treasury PIES representing (1) the
ownership by the Holder thereof of a 1/20 undivided
21
beneficial interest in a Treasury Security with a principal amount equal to
$1,000, subject to the Pledge of such Treasury Security by such Holder
pursuant to the Pledge Agreement, and (2) the rights and obligations of the
Holder thereof and the Company under one Purchase Contract. The Purchase
Contract Agent as attorney-in-fact for, and on behalf of, the Holder of each
Treasury PIES shall pledge, pursuant to the Pledge Agreement, the Treasury
Security or Treasury Securities forming a part of such Treasury PIES, to the
Collateral Agent and grant to the Collateral Agent a security interest in the
right, title and interest of such Holder in such Treasury Security or
Treasury Securities for the benefit of the Company, to secure the obligation
of the Holder under each Purchase Contract to purchase shares of Common Stock
pursuant to this Agreement and the related Purchase Contract.
Prior to the purchase of shares of Common Stock under each
Purchase Contract, such Purchase Contract shall not entitle the Holder of a
Corporate PIES Certificate or a Treasury PIES Certificate 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 a shareholder in respect of the meetings of shareholders
or for the election of directors of the Company or for any other matter, or
any other rights whatsoever as a shareholder of the Company.
Section 3.3. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Sections 3.1, 3.13 and 3.14
hereof, upon the execution and delivery of this Agreement, and at any time
and from time to time thereafter, the Company may deliver Certificates
executed by the Company to the Purchase Contract Agent for authentication,
execution on behalf of the Holders and delivery, together with its Issuer
Order for authentication of such Certificates, and the Purchase Contract
Agent in accordance with such Issuer Order shall authenticate, execute on
behalf of the Holders and deliver such Certificates.
The Certificates shall be executed on behalf of the Company by
its Chairman of the Board, President, one of its Vice Presidents, Corporate
Secretary or Treasurer. The signature of any of these officers on the
Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of an
individual who was at any time the proper officer of the Company shall bind
the Company, notwithstanding that such individual has ceased to hold such
office prior to the authentication and delivery of such Certificates or did
not hold such office at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid
until such Certificate has been executed on behalf of the Holder by the
manual signature of an authorized officer of the Purchase Contract Agent, as
such Holder's attorney-in-fact. Such signature by an authorized officer of
the Purchase Contract Agent shall be conclusive evidence that the Holder of
such Certificate has entered into the Purchase Contract or Purchase Contracts
evidenced by such Certificate.
Each Certificate shall be dated the date of its
authentication.
No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on
such Certificate a certificate of authentication
22
substantially in the form provided for herein executed by an authorized
officer of the Purchase Contract Agent by manual signature, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder.
Section 3.4. Temporary Certificates.
Pending the preparation of definitive Certificates, the Company
shall execute and deliver to the Purchase Contract Agent, and the Purchase
Contract Agent shall authenticate, execute on behalf of the Holders, and
deliver, in lieu of such definitive Certificates, temporary Certificates
which are in substantially the form set forth in Exhibit A or Exhibit B
hereto, as the case may be, 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 Corporate PIES or Treasury PIES are or may
be listed, or as may, consistently herewith, be determined by the officers of
the Company executing such Certificates, as evidenced by their execution of
the Certificates.
If temporary Certificates are issued, the Company will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
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 Certificates, the Company shall execute and deliver to the
Purchase Contract Agent, and the Purchase Contract Agent shall authenticate,
execute on behalf of the Holder, and deliver in exchange therefor, one or
more definitive Certificates of like tenor and denominations and evidencing a
like aggregate number of Corporate PIES or Treasury PIES, as the case may be,
as the temporary Certificate or Certificates so surrendered. Until so
exchanged, the temporary Certificates shall in all respects evidence the same
benefits and the same obligations with respect to the Corporate PIES or
Treasury PIES, as the case may be, evidenced thereby as definitive
Certificates.
Section 3.5. Registration; Registration of Transfer and Exchange.
The Purchase Contract Agent shall keep at the Corporate Trust
Office a register (the "Corporate PIES Register") in which, subject to such
reasonable regulations as it may prescribe, the Purchase Contract Agent shall
provide for the registration of Corporate PIES Certificates and of transfers
of Corporate PIES Certificates (the Purchase Contract Agent, in such
capacity, the "Corporate PIES Registrar") and a register (the "Treasury PIES
Register") in which, subject to such reasonable regulations as it may
prescribe, the Purchase Contract Agent shall provide for the registration of
the Treasury PIES Certificates and transfers of Treasury PIES Certificates
(the Purchase Contract Agent, in such capacity, the "Treasury PIES
Registrar").
Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office, the Company shall execute and deliver to the
Purchase Contract Agent, and the Purchase Contract Agent shall authenticate,
execute on behalf of the designated transferee or transferees, and deliver,
in the name of the designated transferee or transferees, one or more new
23
Certificates of any authorized denominations, like tenor, and evidencing a
like aggregate number of Corporate PIES or Treasury PIES, as the case may be.
At the option of the Holder, Certificates may be exchanged for
other Certificates, of any authorized denominations and evidencing a like
number of Corporate PIES or Treasury PIES, as the case may be, upon surrender
of the Certificates to be exchanged at the Corporate Trust Office. Whenever
any Certificates are so surrendered for exchange, the Company shall execute
and deliver to the Purchase Contract Agent, and the Purchase Contract Agent
shall authenticate, execute on behalf of the Holder, and deliver the
Certificates which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same aggregate
number of Corporate PIES or Treasury PIES, as the case may be, and be
entitled to the same benefits and subject to the same obligations, under this
Agreement as the Corporate PIES or Treasury PIES, as the case may be,
evidenced by the Certificate surrendered upon such registration of transfer
or exchange.
Every Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Purchase Contract
Agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Purchase Contract Agent
duly executed, by the Holder thereof or its attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or exchange of a Certificate, but the Company and the Purchase
Contract Agent may require payment from the Holder of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Certificates, other than any
exchanges pursuant to Sections 3.4, 3.6 and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall not be obligated to authenticate, execute on
behalf of the Holder and deliver any Certificate in exchange for any other
Certificate presented or surrendered for registration of transfer or for
exchange on or after the Business Day immediately preceding the earlier of
the Purchase Contract Settlement Date or the Termination Date. In lieu of
delivery of a new Certificate, upon satisfaction of the applicable conditions
specified above in this Section and receipt of appropriate registration or
transfer instructions from such Holder, the Purchase Contract Agent shall:
(1) if the Purchase Contract Settlement Date has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the PIES evidenced by such other
Certificate; or
(2) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Senior Notes, the
Treasury Portfolio or the Treasury Securities, as the case may be,
evidenced thereby,
in each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
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Section 3.6. Book-Entry Interests.
The Certificates, on original issuance, will be issued in the
form of one or more fully registered Global Certificates, to be delivered to
the Depositary or its custodian by, or on behalf of, the Company. Such Global
Certificate shall initially be registered on the books and records of the
Company in the name of Cede & Co., the nominee of the Depositary, and no
Beneficial Owner will receive a definitive Certificate representing such
Beneficial Owner's interest in such Global Certificate, except as provided in
Section 3.9. The Purchase Contract Agent shall enter into an agreement with
the Depositary if so requested by the Company. Unless and until definitive,
fully registered Certificates have been issued to Beneficial Owners pursuant
to Section 3.9:
(1) the provisions of this Section 3.6 shall be in full force
and effect;
(2) the Company shall be entitled to deal with the Depositary
for all purposes of this Agreement (including making Purchase Contract
Adjustment Payments and receiving approvals, votes or consents
hereunder) as the Holder of the PIES and the sole holder of the Global
Certificates and shall have no obligation to the Beneficial Owners;
(3) to the extent that the provisions of this Section 3.6
conflict with any other provisions of this Agreement, the provisions of
this Section 3.6 shall control; and
(4) the rights of the Beneficial Owners shall be exercised only
through the Depositary and shall be limited to those established by law
and agreements between such Beneficial Owners and the Depositary and/or
the Depositary Participants.
Section 3.7. Notices to Holders.
Whenever a notice or other communication to the Holders is
required to be given under this Agreement, the Company or the Company's agent
shall give such notices and communications to the Holders and, with respect
to any PIES registered in the name of a Depositary or the nominee of a
Depositary, the Company or the Company's agent shall, except as set forth
herein, have no obligations to the Beneficial Owners.
Section 3.8. Appointment of Successor Depositary.
If any Depositary elects to discontinue its services as
securities depositary with respect to the PIES or ceases to be eligible as a
"depositary" under the Exchange Act, the Company may, in its sole discretion,
appoint a successor Depositary with respect to the PIES.
Section 3.9. Definitive Certificates.
If (a) the Depositary is at any time unwilling, unable or
ineligible to continue as a "clearing agency" registered under the Exchange
Act and a successor Depositary is not appointed by the Company pursuant to
Section 3.8 within 90 days of the date the Company and the Purchase Contract
Agent is so informed in writing thereof, (b) the Company executes and
delivers to the Purchase Contract Agent a Company Order (as defined in the
Indenture) to the effect that the Global Certificates shall be exchangeable
for Definitive Certificates or (c) a
25
default by the Company in respect of its obligations under one or more
Purchase Contracts has occurred and is continuing, then upon surrender of the
Global Certificates representing the PIES by the Depositary, accompanied by
registration instructions, the Company shall cause definitive Certificates to
be delivered to Beneficial Owners in accordance with the instructions of the
Depositary. The Company and the Purchase Contract Agent shall not be liable
for any delay in delivery of such instructions and may conclusively rely on
and shall be protected in relying on, such instructions.
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Purchase
Contract Agent, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent shall authenticate, execute
on behalf of the Holder, and deliver in exchange therefor, a new Certificate,
evidencing the same number of Corporate PIES or Treasury PIES, as the case
may be, and bearing a Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Purchase
Contract Agent (i) evidence to their satisfaction of the destruction, loss or
theft of any Certificate, and (ii) such security or indemnity as may be
required by them to hold each of them and any agent of any of them harmless,
then, in the absence of notice to the Company or to a Responsible Officer of
the Purchase Contract Agent that such Certificate has been acquired by a bona
fide purchaser, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent shall authenticate, execute
on behalf of the Holder, and deliver to the Holder, in lieu of any such
destroyed, lost or stolen Certificate, a new Certificate, evidencing the same
number of Corporate PIES or Treasury PIES, as the case may be, and bearing a
Certificate number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall not be obligated to authenticate, execute on
behalf of the Holder, and deliver to the Holder, a Certificate on or after
the Business Day immediately preceding the earlier of the Purchase Contract
Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above
in this Section and receipt of appropriate registration or transfer
instructions from such Holder, the Purchase Contract Agent shall:
(1) if the Purchase Contract Settlement Date has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the PIES evidenced by such Certificate; or
(2) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Senior Notes, the
Treasury Portfolio or the Treasury Securities, as the case may be,
evidenced thereby,
in each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
Upon the issuance of any new Certificate under this
Section, the Company and the Purchase Contract Agent may require the payment
by the Holder of a sum sufficient to cover any
26
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Purchase Contract
Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu
of any destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder in respect
of the PIES evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the PIES evidenced thereby) 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 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 payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.11. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of
transfer, the Company and the Purchase Contract Agent, and any agent of the
Company or the Purchase Contract Agent, may treat the Person in whose name
such Certificate is registered as the owner of the Corporate PIES or Treasury
PIES evidenced thereby, for the purpose of receiving interest payments on the
Senior Notes, receiving Purchase Contract Adjustment Payments, performance of
the Purchase Contracts and for all other purposes whatsoever, whether or not
any interest payments on the Senior Notes or the Purchase Contract Adjustment
Payments payable in respect of the Purchase Contracts constituting a part of
the Corporate PIES or Treasury PIES evidenced thereby shall be overdue and
notwithstanding any notice to the contrary, and neither the Company nor the
Purchase Contract Agent, nor any agent of the Company or the Purchase
Contract Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Certificate, nothing contained herein shall prevent the Company, the Purchase
Contract Agent or any agent of the Company or the Purchase Contract Agent,
from giving effect to any written certification, proxy or other authorization
furnished by any Depositary (or its nominee), as a Holder, with respect to
such Global Certificate or impair, as between such Depositary and owners of
beneficial interests in such Global Certificate, the operation of customary
practices governing the exercise of rights of such Depositary (or its
nominee) as Holder of such Global Certificate.
Section 3.12. Cancellation.
All Certificates surrendered for delivery of shares of Common
Stock on or after the Purchase Contract Settlement Date, upon the transfer of
Senior Notes, the Treasury Portfolio or Treasury Securities, as the case may
be, after the occurrence of a Termination Event or pursuant to an Early
Settlement, or a Collateral Substitution or the recreation of Corporate PIES
or upon the registration of a transfer or exchange of a PIES, shall, if
surrendered to any Person other than the Purchase Contract Agent, be
delivered to the Purchase Contract Agent and, if not already cancelled, shall
be promptly cancelled by it. The Company may at any time deliver to the
Purchase Contract Agent for cancellation any Certificates previously
authenticated, executed and delivered hereunder which the Company may have
acquired in any manner whatsoever, and
27
all Certificates so delivered shall, upon Issuer Order, be promptly cancelled
by the Purchase Contract Agent. No Certificates shall be authenticated,
executed on behalf of the Holder and delivered in lieu of or in exchange for
any Certificates cancelled as provided in this Section, except as expressly
permitted by this Agreement. All cancelled Certificates held by the Purchase
Contract Agent shall be disposed of by the Purchase Contract Agent in
accordance with its customary procedures.
If the Company or any Affiliate of the Company shall acquire
any Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Purchase
Contract Agent cancelled or for cancellation.
Section 3.13. Creation of Treasury PIES by Substitution of Treasury
Securities.
A Holder may separate the Senior Notes from the related
Purchase Contracts in respect of such Holder's Corporate PIES by substituting
for such Senior Notes Treasury Securities or security entitlements thereto,
pursuant to the Pledge Agreement, in an aggregate principal amount equal to
the aggregate principal amount of such Senior Notes, at any time from and
after the date of this Agreement until 5:00 p.m. (New York City time) on the
Election Date by:
(1) providing notice to the Purchase Contract Agent,
substantially in the form of Exhibit C hereto, of such Holder's
intention to create Treasury PIES;
(2) for each group of 20 Corporate PIES from which such Holder
wishes to create Treasury PIES, transferring a Treasury Security to the
Securities Intermediary which shall then (y) deposit the Treasury
Security with the Collateral Agent in the Collateral Account under the
Pledge Agreement and instruct the Collateral Agent to hold such Treasury
Security as Collateral under the Pledge Agreement and (z) instruct the
Collateral Agent to release to the Purchase Contract Agent, on behalf of
such Holder, $1,000 principal amount of Senior Notes formerly subject to
the Pledge;
(3) transferring the related Corporate PIES to the Purchase
Contract Agent accompanied by a notice to the Purchase Contract Agent,
substantially in the form of Exhibit D hereto, stating that the Holder
has transferred the relevant amount of Treasury Securities to the
Securities Intermediary and requesting that the Purchase Contract Agent
instruct the Collateral Agent to release the Senior Notes relating to
such Corporate PIES, whereupon the Purchase Contract Agent shall
promptly give such instruction to the Collateral Agent, substantially in
the form of Exhibit A to the Pledge Agreement; and
(4) paying to the Collateral Agent any fees or expenses
incurred in connection with the Collateral Substitution;
PROVIDED that, Holders may make Collateral Substitutions only in integral
multiples of 20 Corporate PIES. Under no circumstances may a Holder of
Corporate PIES create Treasury PIES after the Election Date.
The Holders' right to create Treasury PIES as set forth in this
Section and the limit of the preceding sentence shall in no way limit the
ability of the Purchase Contract Agent,
28
the Collateral Agent, the Securities Intermediary or the Remarketing Agent to
substitute the Treasury Portfolio for the Senior Notes then comprising a part
of the Corporate PIES upon a Successful Remarketing (other than the Senior
Notes of Holders of Corporate PIES that have elected not to participate in
the Remarketing).
Upon receipt of the Treasury Securities described in clause (2)
above and the instruction described in clause (1) above, in accordance with
the terms of the Pledge Agreement, the Collateral Agent shall, under the
Pledge Agreement, cause the Securities Intermediary to effect the release of
such Senior Notes from the Pledge to the Purchase Contract Agent, free and
clear of the Company's security interest therein, and the transfer of such
Senior Notes to the Purchase Contract Agent on behalf of the Holder thereof.
Upon receipt thereof, the Purchase Contract Agent shall promptly:
(i) cancel the related Corporate PIES;
(ii) transfer the applicable aggregate principal amount of
Senior Notes to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a Treasury PIES Certificate executed by the Company in accordance
with Section 3.3 evidencing the same number of Purchase Contracts as were
evidenced by the cancelled Corporate PIES.
Holders who elect to separate the Senior Notes from the related
Purchase Contracts and to substitute Treasury Securities for such Senior
Notes shall be responsible for any fees or expenses payable to the Collateral
Agent for its services as Collateral Agent in respect of the substitution,
and the Company shall not be responsible for any such fees or expenses.
In the event a Holder making a Collateral Substitution pursuant
to this Section 3.13 fails to effect a book-entry transfer of the Corporate
PIES or fails to deliver Corporate PIES Certificates to the Purchase Contract
Agent after depositing Treasury Securities with the Collateral Agent, then
the Senior Notes or Treasury Portfolio Interest, as the case may be,
constituting a part of such Corporate PIES, and any interest payments on such
Senior Notes or the Treasury Portfolio Interest, as the case may be, shall be
held in the name of the Purchase Contract Agent or its nominee in trust for
the benefit of such Holder, until such Corporate PIES are so transferred or
the Corporate PIES Certificates are so delivered, as the case may be, or,
with respect to the Corporate PIES Certificates, such Holder provides
evidence satisfactory to the Company and the Purchase Contract Agent that
such Corporate PIES Certificates have been destroyed, lost or stolen,
together with any indemnity that may be required by the Purchase Contract
Agent and the Company.
Except as described in this Sections 3.13 and 5.3, for so long
as the Purchase Contract relating to a Corporate PIES remains in effect, such
Corporate PIES shall not be separable into its constituent parts, and the
rights and obligations of the Holder in respect of the Senior Note or the
Treasury Portfolio Interest, as the case may be, and the Purchase Contract
comprising such Corporate PIES may be acquired, and may be transferred and
exchanged, only as a Corporate PIES.
Section 3.14. Recreation of Corporate PIES.
29
A Holder of a Treasury PIES may recreate Corporate PIES at any
time until 5:00 p.m. (New York City time) on the Election Date by:
(1) providing notice to the Purchase Contract Agent,
substantially in the form of Exhibit C hereto, of such Holder's
intention to create Corporate PIES;
(2) for each Treasury PIES such Holder wishes to substitute,
transferring 20 Senior Notes to the Securities Intermediary which shall
then (y) deposit such Senior Notes in the Collateral Account under the
Pledge Agreement and instruct the Collateral Agent to hold such Senior
Notes as Collateral and (z) instruct the Collateral Agent to release to
such Holder the Treasury Security formerly subject to the Pledge;
(3) transferring the related Treasury PIES to the Purchase
Contract Agent accompanied by a notice to the Purchase Contract Agent,
substantially in the form of Exhibit D hereto, (i) stating that the
Holder has transferred the relevant amount of Senior Notes to the
Securities Intermediary and (ii) requesting that the Purchase Contract
Agent instruct the Collateral Agent to release the Treasury Securities
relating to such Treasury PIES, whereupon the Purchase Contract Agent
shall promptly give such instruction to the Collateral Agent,
substantially in the form of Exhibit C to the Pledge Agreement; and
(4) paying to the Collateral Agent any fees or expenses
incurred in connection with the recreation of Corporate PIES;
PROVIDED that, Holders of Treasury PIES may recreate Corporate PIES in
integral multiples of 20 Treasury PIES for 20 Corporate PIES. Under no
circumstance may a Holder of Treasury PIES recreate Corporate PIES after the
Election Date.
Upon receipt of the Senior Notes described in clause (1) above
and the instruction described in clause (2) above, in accordance with the
terms of the Pledge Agreement, the Collateral Agent shall cause the
Securities Intermediary to effect the release of such Treasury Securities
from the Pledge, free and clear of the Company's security interest therein,
and the transfer of such Treasury Securities to the Holder thereof. Upon
receipt thereof, the Purchase Contract Agent shall promptly:
(i) cancel the related Treasury PIES; and
(ii) authenticate, execute on behalf of such Holder and
deliver a Corporate PIES Certificate executed by the Company in accordance
with Section 3.3 evidencing the same number of Purchase Contracts as were
evidenced by the cancelled Treasury PIES.
Holders who elect to recreate Corporate PIES shall be
responsible for any fees or expenses payable to the Collateral Agent for its
services as Collateral Agent in respect of the substitution, and the Company
shall not be responsible for any such fees or expenses.
Except as provided in this Section 3.14, for so long as the
Purchase Contract relating to a Treasury PIES remains in effect, such
Treasury PIES shall not be separable into its constituent parts and the
rights and obligations of the Holder of such Treasury PIES in respect of
30
the 1/20 of a Treasury Security and the Purchase Contract comprising such
Treasury PIES may be acquired, and may be transferred and exchanged, only as
a Treasury PIES.
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event.
Upon the occurrence of a Termination Event and the transfer to
the Purchase Contract Agent of Senior Notes, Treasury Portfolio or Treasury
Securities, as the case may be, relating to the Corporate PIES and the
Treasury PIES, as the case may be, pursuant to the terms of the Pledge
Agreement, the Purchase Contract Agent shall request transfer instructions
with respect to such Senior Notes, Treasury Portfolio Interest or Treasury
Securities, as the case may be, from each Holder by written request,
substantially in the form of Exhibit E hereto, mailed to such Holder at its
address as it appears in the Corporate PIES Register or the Treasury PIES
Register, as the case may be.
Upon book-entry transfer of the Corporate PIES or Treasury PIES
or delivery of a Corporate PIES Certificate or Treasury PIES Certificate to
the Purchase Contract Agent with such transfer instructions, the Purchase
Contract Agent shall transfer such Senior Notes, Treasury Portfolio Interest
or Treasury Securities, as the case may be, relating to such Corporate PIES
or Treasury PIES, as the case may be, to such Holder by book-entry transfer,
or other appropriate procedures, in accordance with such instructions. In the
event a Holder of Corporate PIES or Treasury PIES fails to effect such
transfer or delivery, such Senior Notes, Treasury Portfolio Interest or
Treasury Securities, as the case may be, relating to such Corporate PIES or
Treasury PIES, as the case may be, and any interest thereon, shall be held in
the name of the Purchase Contract Agent or its nominee in trust for the
benefit of such Holder, until the earlier of:
(1) such Corporate PIES or Treasury PIES are transferred or the
Corporate PIES Certificate or Treasury PIES Certificate is surrendered
or such Holder provides satisfactory evidence that such Corporate PIES
Certificate or Treasury PIES Certificate has been destroyed, lost or
stolen, together with any indemnity that may be required by the Purchase
Contract Agent and the Company; and
(2) the expiration of the time period specified in the
abandoned property laws of the relevant State.
Section 3.16. No Consent to Assumption.
Each Holder of a PIES, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365 of
the Bankruptcy Code or otherwise, of the Purchase Contract by the Company or
its trustee, receiver, liquidator or a person or entity performing similar
functions in the event that the Company becomes the debtor under the
Bankruptcy Code or subject to other similar state or federal law providing
for reorganization or liquidation.
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ARTICLE IV
THE SENIOR NOTES
Section 4.1. Interest Payments; Rights to Interest Preserved.
Each Corporate PIES issued hereunder shall consist of the
beneficial ownership by the Holder of one Senior Note issued pursuant to the
Indenture or, if the Corporate PIES shall have been remarketed by the
Remarketing Agent pursuant to the Remarketing Agreement, the Treasury
Portfolio Interest, in each case, subject to the Pledge thereof by such
Holder under the Pledge Agreement.
An interest payment on any Senior Note which is paid on any
Payment Date or the portion of the proceeds of a Treasury Portfolio Interest
equal to the interest payable on a Senior Note on the Purchase Contract
Settlement Date (such portion the "Treasury Portfolio Return"), as the case
may be, subject to receipt thereof by the Purchase Contract Agent from the
Collateral Agent as provided by the terms of the Pledge Agreement, shall
promptly be paid to the Person in whose name the Corporate PIES Certificate
(or one or more Predecessor Corporate PIES Certificates) of which such Senior
Note or the Treasury Portfolio Interest, as the case may be, is a part is
registered at the close of business on the Record Date for such Payment Date
or Purchase Contract Settlement Date, as applicable.
Each Corporate PIES Certificate evidencing, in part, the Senior
Note or the Treasury Portfolio Interest delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any other
Corporate PIES Certificate shall carry the right to accrued and unpaid
interest, and the right to accrue interest (and accreted and accreting
principal in the case of non-interest bearing components of the Treasury
Portfolio Interest), which rights were carried by the Senior Note or the
Treasury Portfolio Interest, as the case may be, relating to such other
Corporate PIES Certificate.
In the case of any Corporate PIES with respect to which (1)
Cash Settlement of the related Purchase Contract is effected on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, (2)
Early Settlement of the related Purchase Contract is effected on an Early
Settlement Date, (3) Merger Early Settlement of the related Purchase Contract
is effected on a Merger Early Settlement Date or (4) a Collateral
Substitution is effected, in each case, on a date that is after any Record
Date and on or prior to the next succeeding Payment Date, the interest
payment on the Senior Note or the Treasury Portfolio Return, as the case may
be, relating to such Corporate PIES otherwise payable on such Payment Date
shall be payable on such Payment Date notwithstanding such Cash Settlement,
Early Settlement, Merger Early Settlement or Collateral Substitution, as the
case may be, and such payment shall, subject to receipt thereof by the
Purchase Contract Agent, be payable to the Person in whose name the Corporate
PIES Certificate (or one or more Predecessor Corporate PIES Certificates) was
registered at the close of business on the corresponding Record Date. Except
as otherwise expressly provided in the immediately preceding sentence, in the
case of any Corporate PIES with respect to which Cash Settlement, Early
Settlement or Merger Early Settlement of the related Purchase Contract is
effected on the fifth Business Day immediately preceding the Purchase
Contract Settlement Date, on an Early Settlement Date or on a Merger
32
Early Settlement Date, respectively, or with respect to which a Collateral
Substitution has been effected, interest payments on the related Senior Notes
or the Treasury Portfolio Return, as the case may be, that would otherwise be
payable after the fifth Business Day preceding the Purchase Contract
Settlement Date, after the Early Settlement Date, after the Merger Early
Settlement Date, or after the Collateral Substitution, respectively, shall
not be payable hereunder to the Holder of such Corporate PIES; PROVIDED,
HOWEVER, that to the extent that such Holder continues to hold the Separated
Senior Note that formerly comprised a part of such Holder's Corporate PIES,
such Holder shall be entitled to receive the interest payments on such
Separated Senior Note, as provided in the Indenture.
Section 4.2. Interest Rate Reset.
The applicable interest rate borne by the Senior Notes, whether
or not part of Corporate PIES, shall be reset to the Reset Rate, pursuant to
the Indenture, and will be effective with respect to all Senior Notes,
whether or not then constituting a component of Corporate PIES, as of the
Remarketing Settlement Date, in the case of a Successful Remarketing, or, as
of the Purchase Contract Settlement Date, in the event of a Failed
Remarketing or in the event there is no Remarketing pursuant to clause (c) of
the definition of Reset Rate in the Indenture Officers' Certificate.
Section 4.3. Notice and Voting.
The Purchase Contract Agent is entitled to exercise the voting
and any other consensual rights pertaining to the Pledged Senior Notes, but
only to the extent instructed in writing by the Holders as described below.
Upon receipt of notice of any meeting at which holders of Senior Notes are
entitled to vote or upon any solicitation of consents, waivers or proxies of
holders of Senior Notes, the Purchase Contract Agent shall, as soon as
practicable thereafter, mail to the Holders of Corporate PIES a notice:
(1) containing such information as is contained in the notice
or solicitation;
(2) stating that each Holder on the record date set by the
Purchase Contract Agent therefor (which, to the extent possible, shall
be the same date as the record date for determining the holders of
Senior Notes entitled to vote) shall be entitled to instruct the
Purchase Contract Agent as to the exercise of the voting rights
pertaining to such Senior Notes relating to their Corporate PIES; and
(3) stating the manner in which such instructions may be given.
Upon the written request of the Holders of Corporate PIES on
such record date received by the Purchase Contract Agent at least six
calendar days prior to such meeting or by the expiration date of any such
solicitation, the Purchase Contract Agent shall endeavor insofar as
practicable to vote or cause to be voted, in accordance with the instructions
set forth in such requests, the maximum principal amount of Senior Notes as
to which any particular voting instructions are received. In the absence of
specific instructions from the Holder of Corporate PIES, the Purchase
Contract Agent shall abstain from voting the Senior Notes relating such
Corporate PIES. The Company hereby agrees, if applicable, to solicit Holders
of Corporate
33
PIES to timely instruct the Purchase Contract Agent in order to enable the
Purchase Contract Agent to vote such Senior Notes.
ARTICLE V
THE PURCHASE CONTRACTS; THE REMARKETING
Section 5.1. Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless a Termination Event has
occurred as set forth in Section 5.7, an Early Settlement has occurred in
accordance with Section 5.9 or a Merger Early Settlement has occurred in
accordance with Section 5.10, obligate the Holder of the related PIES to
purchase, and the Company to sell, on the Purchase Contract Settlement Date
at a price equal to the Stated Amount (the "Purchase Price"), a number of
newly issued shares of Common Stock equal to the Settlement Rate then in
effect. The "Settlement Rate" is equal to:
(1) if the Applicable Closing Price per share is equal to or
greater than $16.62 (the "Threshold Appreciation Price"), 3.0084 shares
of Common Stock per Purchase Contract;
(2) if the Applicable Closing Price per share is less than the
Threshold Appreciation Price, but greater than $13.85 (the "Reference
Price"), the number of shares of Common Stock determined by dividing the
Stated Amount by the Applicable Closing Price; and
(3) if the Applicable Closing Price per share is less than or
equal to the Reference Price, 3.6101 shares of Common Stock per Purchase
Contract,
in each case subject to adjustment as provided in Section 5.5 (and in each
case rounded upward or downward to the nearest 1/10,000th of a share).
Promptly after the calculation of the Settlement Rate and the
Applicable Closing Price, the Company shall give the Purchase Contract Agent
notice thereof. All calculations and determinations of the Settlement Rate
and the Applicable Closing Price shall be made by the Company or its agent
based on their good faith calculations, and the Purchase Contract Agent shall
have no responsibility with respect thereto.
As provided in Section 5.12, no fractional shares of Common
Stock will be issued upon settlement of Purchase Contracts.
The "Applicable Closing Price" means the average of the Closing
Prices per share of Common Stock on each of the 20 consecutive Trading Days
ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date, or in the case of the exercise of a Merger Early Settlement
right, the Cash Merger Date.
The "Closing Price" per share of the Common Stock on any date
of determination means:
34
(1) the closing sale price (or, if no closing price is
reported, the last reported sale price) per share of the Common Stock on
the NYSE on such date;
(2) if the Common Stock is not listed for trading on the NYSE
on any such date, the closing sale price per share as reported in the
composite transactions for the principal United States securities
exchange on which the Common Stock is so listed;
(3) if the Common Stock is not so listed on a United States
national or regional securities exchange, the closing sale price per
share as reported by The Nasdaq Stock Market;
(4) if the Common Stock is not so reported, the last quoted bid
price per share for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the
mid-point of the last bid and ask prices per share of the Common Stock
on such date from at least three nationally recognized independent
investment banking firms retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) 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 (2) has
traded at least once on the national or regional securities exchange or
association or the over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a Corporate PIES or a Treasury PIES, by its
acceptance thereof:
(1) irrevocably authorizes the Purchase Contract Agent to enter
into and perform the related Purchase Contract on its behalf as its
attorney-in-fact (including the execution of Certificates on behalf of
such Holder as such Holder's attorney-in-fact);
(2) agrees to be bound by the terms and provisions thereof;
(3) covenants and agrees to perform its obligations under such
Purchase Contracts;
(4) consents to the provisions hereof;
(5) irrevocably authorizes the Purchase Contract Agent to enter
into and perform this Agreement and the Pledge Agreement on its behalf
as its attorney-in-fact; and
(6) consents to and agrees to be bound by the Pledge of the
Senior Notes or the Treasury Securities pursuant to the Pledge
Agreement; and
35
(7) agrees to treat itself as the owner of the related Senior
Notes, Treasury Portfolio Interest or Treasury securities, as the case
may be, in each case for U.S. Federal, state and local income and
franchise tax purposes;
PROVIDED that, upon a Termination Event, the rights of the Holder of such
PIES under the Purchase Contract may be enforced without regard to any other
rights or obligations. Each Holder of a Corporate PIES or a Treasury PIES, by
its acceptance thereof, further covenants and agrees, that to the extent and
in the manner provided in Section 5.3 and the Pledge Agreement, but subject
to the terms thereof, proceeds from the Remarketing of the Senior Notes (less
the Remarketing Fee payable to the Remarketing Agent pursuant to the
Remarketing Agreement), the Treasury Portfolio Interest or the Treasury
Securities at maturity, as the case may be, to be paid upon settlement of
such Holder's obligations to purchase Common Stock under the Purchase
Contract, shall be paid on the Purchase Contract Settlement Date 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 Certificate, the
transferee shall be bound (without the necessity of any other action on the
part of such transferee) by the terms of this Agreement, the Purchase
Contracts relating to such Certificate and the Pledge Agreement and the
transferor shall be released from the obligations under this Agreement, the
Purchase Contracts relating to the Certificates so transferred and the Pledge
Agreement. The Company covenants and agrees, and each Holder of a
Certificate, by its acceptance thereof, likewise covenants and agrees, to be
bound by the provisions of this paragraph.
Section 5.2. Purchase Contract Adjustment Payments.
The Company shall pay, on each Payment Date, the Purchase
Contract Adjustment Payments payable in respect of each Purchase Contract to
the Person in whose name a Certificate (or one or more Predecessor
Certificates) is registered at the close of business on the Record Date next
preceding such Payment Date in such coin or currency of the United States as
at the time of payment shall be legal tender for the payment of public and
private debts. The Purchase Contract Adjustment Payments will be payable at
the office of the Purchase Contract Agent in The City of New York maintained
for that purpose or, at the option of the Company, by wire transfer or by
check mailed to the address of the Person entitled thereto at such Person's
address as it appears on the Corporate PIES Register or Treasury PIES
Register.
Upon the occurrence of a Termination Event, the Company's
obligation to pay Purchase Contract Adjustment Payments (including any
accrued Purchase Contract Adjustment Payments) shall cease.
Each Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of (including as a
result of a Collateral Substitution or the recreation of Corporate PIES) any
other Certificate shall carry the right to accrued and unpaid Purchase
Contract Adjustment Payments, and the right to accrue Purchase Contract
Adjustment Payments, which rights were carried by the Purchase Contracts
relating to such other Certificates from the date of issuance to and
excluding, the Purchase Contract Settlement Date, unless such Purchase
Contracts have been settled earlier pursuant to this Agreement.
36
In the case of any PIES with respect to which (1) Cash
Settlement of the related Purchase Contract is effected on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, (2) Early
Settlement of the related Purchase Contract is effected on an Early
Settlement Date or (3) Merger Early Settlement of the related Purchase
Contract is effected on a Merger Early Settlement Date, in each case, on a
date that is after any Record Date and on or prior to the next succeeding
Payment Date, Purchase Contract Adjustment Payments otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Cash
Settlement, Early Settlement or Merger Early Settlement, as the case may be,
and such Purchase Contract Adjustment Payments shall be paid to the Person in
whose name the Certificate evidencing such PIES (or one or more Predecessor
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 PIES with respect to which Cash Settlement, Early
Settlement or Merger Early Settlement of the related Purchase Contract is
effected on the fifth Business Day immediately preceding the Purchase
Contract Settlement Date, an Early Settlement Date or a Merger Early
Settlement Date, respectively, Purchase Contract Adjustment Payments that
would otherwise be payable after the fifth Business Day preceding the
Purchase Contract Settlement Date, after the Early Settlement Date or after
the Merger Early Settlement Date, respectively, with respect to such Purchase
Contract shall not be payable.
Promptly after the calculation of any adjustment to the
Purchase Contract Adjustment Payments arising from a Reset Transaction, the
Company shall give the Purchase Contract Agent notice thereof. All
calculations and determinations of the Adjusted Purchase Contract Adjustment
Payment Rate shall be made by the Company or its agent in good faith and the
Purchase Contract Agent shall have no responsibility with respect thereto.
The Purchase Contract Agent shall not at any time be under any duty or
responsibility to any Holder of PIES to determine whether any facts exist
which may require any adjustment to the Purchase Contract Adjustment
Payments, 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.
Section 5.3. Payment of Purchase Price; Remarketing.
(a) Unless a Termination Event has occurred or a Holder has
settled the related Purchase Contract through a Cash Settlement pursuant to
Section 5.8, an Early Settlement pursuant to Section 5.9 or a Merger Early
Settlement pursuant to Section 5.10, the settlement of the Purchase Contract
relating to a PIES will be made by Remarketing in accordance with this
Section 5.3.
(b) The Company shall engage ▇▇▇▇▇▇ Brothers Inc., or another
nationally recognized investment bank, to act as Remarketing Agent (the
"Remarketing Agent") pursuant to the Remarketing Agreement to remarket (1)
the Pledged Senior Notes comprising part of Corporate PIES, other than those
Pledged Senior Notes of Holders that have elected not to participate in the
Remarketing pursuant to Section 5.3(e) below, and (2) the Separated Senior
Notes of holders of Separated Senior Notes that have elected to participate
in the Remarketing pursuant to paragraph 19(i)(C) of the Indenture Officers'
Certificate and Section 5.7 of the Pledge Agreement (the Senior Notes
described in clauses (1) and (2) collectively being referred to as the
"Remarketing Senior Notes") pursuant to the Remarketing Procedures.
37
On the seventh Business Day prior to the Initial Remarketing
Date, the Company shall give notice of Remarketing in an Authorized
Newspaper, including the specific U.S. Treasury security or securities
(including the CUSIP number and/or the principal terms of such Treasury
security or securities) that must be delivered by Holders of Corporate PIES
that elect not to participate in the Remarketing pursuant to Section 5.3(e)
below, no later than 5:00 p.m. (New York City time) on the Election Date. Not
later than 15 calendar days nor more than 30 calendar days prior to the
Initial Remarketing Date, the Company shall request DTC (or any successor
Depositary), to notify its Beneficial Owners or Depositary Participants
holding Corporate PIES or Separate Senior Notes of the impending Remarketing.
The Purchase Contract Agent shall notify, by 11:00 a.m. (New
York City time), on the Business Day immediately preceding the Initial
Remarketing Date, the Remarketing Agent, the Collateral Agent, the Trustee
and the Company, by use of a notice substantially in the form of Exhibit G
hereto, of the aggregate principal amount of Pledged Senior Notes of
Corporate PIES Holders to be remarketed on the Initial Remarketing Date or
Subsequent Remarketing Date, as applicable, and the Collateral Agent,
pursuant to the Pledge Agreement, having separately notified the Remarketing
Agent, the Trustee and the Company of the aggregate principal amount of
Separated Senior Notes to be included on the Initial Remarketing Date or
Subsequent Remarketing Date, as applicable, by 11:00 a.m. (New York City
time), on the Business Day immediately preceding the Initial Remarketing
Date, shall concurrently therewith, pursuant to the Pledge Agreement, deliver
for Remarketing to the Remarketing Agent all Remarketing Senior Notes. Upon
receipt of such notice from the Purchase Contract Agent and the Collateral
Agent and such Remarketing Senior Notes from the Collateral Agent, the
Remarketing Agent, pursuant to the Remarketing Agreement, will, use its
commercially reasonable efforts to remarket such Remarketing Senior Notes on
such date pursuant to the Remarketing Procedures and the Remarketing
Agreement.
If there has been a Successful Initial Remarketing or a
Successful Subsequent Remarketing, the Remarketing Agent will on the
Remarketing Date of such Remarketing (i) deduct and retain for itself as the
remarketing fee for itself an amount not exceeding 25 basis points (0.25%) of
the principal amount of each remarketed Remarketing Senior Note (the
"Remarketing Fee"), (ii) use the remaining proceeds attributable to the
Pledged Senior Notes from such Successful Remarketing to purchase the
appropriate U.S. Treasury securities (the "Treasury Portfolio" and the
related interest in the Treasury Portfolio applicable to a Corporate PIES,
the "Treasury Portfolio Interest") with the CUSIP numbers, if any, selected
by Remarketing Agent, described in clauses (1)(i) and (2)(i) of the
definition of Remarketing Value related to the Senior Notes of Holders of
Corporate PIES that were remarketed, (iii) if any Separated Senior Notes were
remarketed, remit to the Collateral Agent, along with notification thereof,
for payment to the holders of such Separated Senior Notes sold in the
Remarketing the remaining proceeds from such Successful Remarketing equal to
the amounts described in clauses (1)(ii) and (2)(ii) of the definition of
Remarketing Value and (iv) if there then remains any proceeds from such
Successful Remarketing, after the application of such proceeds as set forth
in clauses (i) through (iii) above of this sentence, then remit, along with
notification thereof, any such remaining proceeds to the Purchase Contract
Agent for the benefit of holders of the remarketed Senior Notes and to the
Collateral Agent for the benefit of the holders of such Separated Senior
Notes, on a pro rata basis, PROVIDED, HOWEVER, that if such Successful
Remarketing is consummated after 4:30 p.m. (New York City time) on such
Remarketing Date
38
and, despite using its commercially reasonable efforts, the Remarketing Agent
cannot cause the applications of the proceeds specified above to occur on
such Remarketing Date, then the Remarketing Agent may make such applications
and remittances on the next succeeding Business Day. Holders of Remarketing
Senior Notes that are so remarketed will not otherwise be responsible for the
payment of any remarketing fee or expenses in connection with the
Remarketing. On the Remarketing Settlement Date, the Remarketing Agent shall
deliver the Treasury Portfolio to the Collateral Agent. The Collateral Agent,
for the benefit of the Company, will thereupon apply such Treasury Portfolio,
in accordance with the Pledge Agreement, to secure such Holders' obligations
under the Purchase Contracts.
In the event that all or any portion of the Pledged Treasury
Portfolio Interest matures before the Purchase Contract Settlement Date, the
Collateral Agent shall invest the proceeds therefrom in Permitted Investments
in accordance with the Pledge Agreement. The Collateral Agent shall cause the
Securities Intermediary to remit, on the Purchase Contract Settlement Date, a
portion of the proceeds of the maturing Pledged Treasury Portfolio Interest
and of the investment earnings from the related investment in Permitted
Investments, in each case, in an amount equal to the Treasury Portfolio
Return to the Purchase Contract Agent for the benefit of the Holders of the
related Corporate PIES when received. Without receiving any instruction from
any such Holder of Corporate PIES, the Collateral Agent shall apply, on the
Purchase Contract Settlement Date, the proceeds of the maturing Pledged
Treasury Portfolio Interest and of the investment earnings from the related
investment in Permitted Investments in an aggregate amount equal to the
aggregate Purchase Price applicable to such Corporate PIES to satisfy in full
such Holder's obligations to pay the Purchase Price to purchase the shares of
Common Stock under the related Purchase Contracts on the Purchase Contract
Settlement Date. In the event the sum of the proceeds from the related
Pledged Treasury Portfolio Interest and the investment earnings from the
related investment in Permitted Investments exceeds the sum of the related
Treasury Portfolio Return and the aggregate Purchase Price of the Purchase
Contracts being settled thereby, the Collateral Agent shall instruct the
Securities Intermediary to distribute such excess, when received, to the
Purchase Contract Agent for distribution to the Holders whose Purchase
Contracts were settled with such proceeds, on a pro rata basis.
If, by 4:00 p.m. (New York City time), on the ninth Business
Day preceding the Purchase Contract Settlement Date, the Remarketing Agent,
despite using its commercially reasonable efforts, has been and is unable to
remarket all of the Remarketing Senior Notes tendered for purchase at a price
equal to at least the Remarketing Value, the Remarketing Agent shall Transfer
to the Collateral Agent, along with notification thereof, by the sixth
Business Day preceding the Purchase Contract Settlement Date, the Pledged
Senior Notes that that were to be remarketed in the Initial or Subsequent
Remarketing, whereupon the Collateral Agent shall, for the benefit of the
Company, apply such Pledged Senior Notes, to secure the obligation of the
related Holders of Corporate PIES to purchase Common Stock under the related
Purchase Contracts.
(c) Unless a Termination Event has occurred or a Holder has
settled the related Purchase Contract through a Cash Settlement, an Early
Settlement or a Merger Early Settlement, or a Successful Initial Remarketing
or a Successful Subsequent Remarketing has occurred, such Holder shall be
deemed to have consented to the Remarketing of such Holder's Pledged Senior
Notes in the Final Remarketing on the Final Remarketing Date. The Purchase
39
Contract Agent, shall by 11:00 a.m. (New York City time), on the Business Day
immediately preceding the Final Remarketing Date, notify the Remarketing
Agent, the Collateral Agent, the Trustee and the Company, by use of a notice
substantially in the form of Exhibit G hereto, of such event and of the
aggregate principal amount of Pledged Senior Notes of Corporate PIES Holders
to be remarketed on the Final Remarketing Date, whereupon the Collateral
Agent, shall concurrently therewith, without any instruction from such Holder
of Corporate PIES with respect to their Pledged Senior Notes, transfer the
Remarketing Senior Notes to the Remarketing Agent for Remarketing. Upon
receiving such Remarketing Senior Notes, the Remarketing Agent, pursuant to
the terms of the Remarketing Agreement, will use its commercially reasonable
efforts to remarket such Remarketing Senior Notes on the Final Remarketing
Date.
If a Successful Final Remarketing shall have occurred, the
Remarketing Agent will on the Remarketing Date (i) deduct and retain for
itself the Remarketing Fee, pursuant to the Remarketing Agreement, (ii) cause
the remaining proceeds of the Remarketing with respect to the Pledged Senior
Notes in an amount equal to the aggregate principal amount of such Senior
Notes to be delivered to the Collateral Agent, on the Remarketing Settlement
Date, (iii) if any Separated Senior Notes were remarketed, remit, along with
notification thereof, to the Collateral Agent for payment to the holders of
such Separated Senior Notes sold in the Remarketing the remaining proceeds
from such Successful Remarketing attributable to the Separated Senior Notes
in an amount equal to the principal amount of such Senior Notes and (iv) if
there remains any proceeds from such Successful Remarketing, after the
application of such proceeds as set forth in clauses (i) through (iv) of this
sentence, then remit, along with notification thereof, such remaining
proceeds to the Purchase Contract Agent for the benefit of the holders of the
Pledged Senior Notes and to the Collateral Agent for the benefit of holders
of Separated Senior Notes, on a pro rata basis, PROVIDED, HOWEVER, that if
such Successful Remarketing is consummated after 4:30 p.m. (New York City
time) on such Remarketing Date and, despite using its commercially reasonable
efforts, the Remarketing Agent cannot cause the applications of the proceeds
specified above to occur on such Remarketing Date, then the Remarketing Agent
may make such applications and remittances on the next succeeding Business
Day. Holders of the Remarketing Senior Notes that are so remarketed will not
otherwise be responsible for the payment of any remarketing fee or expenses
in connection with the Remarketing. The Purchase Contract Agent shall give
written directions to the Collateral Agent, and the Collateral Agent shall
instruct the Securities Intermediary, to apply a portion of the Proceeds with
respect to the Pledged Senior Notes from such Remarketing, on the Purchase
Contract Settlement Date, equal to the aggregate principal amount of such
Pledged Senior Notes to satisfy in full the obligations of such Holders of
Corporate PIES to pay the Purchase Price to purchase the shares of Common
Stock under the related Purchase Contracts.
If, (1) by 4:00 p.m. (New York City time), on the Final
Remarketing Date, despite using its commercially reasonable efforts, the
Remarketing Agent cannot remarket the Senior Notes included in the
Remarketing at a price equal to at least the Remarketing Value, or (2) the
Remarketing Agent has determined that the Remarketing may not be consummated
as contemplated herein and by the Remarketing Procedures under applicable
law, the Remarketing will be deemed to have failed (a "Failed Remarketing").
If a Failed Remarketing occurs, the Remarketing Agent will, pursuant to the
Remarketing Agreement, promptly advise the Trustee,
40
the Purchase Contract Agent, the Collateral Agent, the Company and the
Depositary that a Failed Remarketing has occurred. The Collateral Agent,
under the Pledge Agreement and for the benefit, and on behalf, of the
Company, may exercise its rights as a secured party with respect to such
Pledged Senior Notes, including those actions specified in paragraph (d)
below; PROVIDED that, if upon a Failed Remarketing, the Collateral Agent
exercises such rights for the benefit of the Company with respect to such
Pledged Senior Notes, any accumulated and unpaid interest on such Senior
Notes will become payable by the Company to the Purchase Contract Agent for
payment to the Holders of the Corporate PIES to which such Pledged Senior
Notes relate. Such payment will be made by the Company on or prior to 11:00
a.m. (New York City time), on the Purchase Contract Settlement Date in lawful
money of the United States by certified or cashiers' check or wire transfer
in immediately available funds payable to or upon the order of the Purchase
Contract Agent. The Company will cause a notice of any Failed Remarketing to
be sent to the holders of all Senior Notes and to be published in an
Authorized Newspaper, in each case, no later than on the Business Day
immediately preceding the Purchase Contract Settlement Date.
(d) With respect to any Pledged Senior Notes which are subject
of a Failed Remarketing, the Collateral Agent, for the benefit of the
Company, and upon written direction of the Company as provided in the Pledge
Agreement, reserves all of its rights as a secured party with respect thereto
and, subject to applicable law and paragraph (e) below, may (i) retain such
Senior Notes in full satisfaction of the Holders' obligations under the
related Purchase Contracts or (ii) sell such Senior Notes in one or more
public or private sales.
(e) A Holder of Corporate PIES may elect not to participate in
the Remarketing by creating Treasury PIES by notifying the Purchase Contract
Agent of such election and complying with the procedures for creating
Treasury PIES set forth in Section 3.13 until 5:00 p.m. (New York City time)
on the Election Date. A Holder that does not so create Treasury PIES by
delivering the Treasury Security or Treasury Securities pursuant to this
paragraph and Section 3.13 shall be deemed to have elected to participate in
any Remarketing.
(f) In the event that all or any portion of the Pledged
Treasury Securities of Treasury PIES matures before the Purchase Contract
Settlement Date, the Collateral Agent shall invest the proceeds therefrom in
Permitted Investments in accordance with the Pledge Agreement.
Without receiving any instruction from any such Holder of
Treasury PIES, the Collateral Agent shall apply, on the Purchase Contract
Settlement Date, the proceeds of the maturing Pledged Treasury Securities and
of the investment earnings from the related investment in Permitted
Investments, in each case, in an amount equal to the aggregate Purchase Price
applicable to such Treasury PIES to satisfy in full such Holder's obligations
to pay the Purchase Price to purchase the shares of Common Stock under the
related Purchase Contracts on the Purchase Contract Settlement Date.
In the event the sum of the proceeds from the related Pledged
Treasury Securities and the investment earnings from the related investment
in Permitted Investments exceeds the
41
aggregate Purchase Price of the Purchase Contracts being settled thereby, the
Collateral Agent shall instruct the Securities Intermediary to distribute
such excess, when received, to the Purchase Contract Agent for distribution
to the Holders whose Purchase Contracts were settled with such proceeds, on a
pro rata basis.
(g) Any distributions to Holders of excess funds and interest
described in paragraphs (b), (c) and (f) above shall be payable at the office
of the Purchase Contract Agent in The City of New York maintained for that
purpose or, at the option of the Holder, or the holder of Separated Senior
Notes, as applicable, by check mailed to the address of the Person entitled
thereto at such address as it appears on the Register or by wire transfer to
an account specified by the Holder, or the holder of Separated Senior Notes,
as applicable.
(h) The obligations of each Holder to pay the Purchase Price
are non-recourse obligations and except to the extent paid by Cash
Settlement, Early Settlement or Merger Early Settlement, are payable solely
out of the proceeds of any Collateral pledged to secure the obligations of
the Holders, and in no event shall Holders be liable for any deficiency
between such payments and the Purchase Price.
(i) Notwithstanding anything to the contrary herein, the
Company shall not be obligated to issue any Common Stock in respect of a
Purchase Contract or deliver any certificates therefor to the Holder of the
related PIES unless the Company shall have received payment in full of the
aggregate Purchase Price for the shares of Common Stock to be purchased
thereunder by such Holder in the manner herein set forth, which payment, in
the case of Corporate PIES upon the occurrence of a Failed Remarketing, shall
occur by the resale of Pledged Senior Notes or foreclosure on and retention
of such Pledged Senior Notes.
Section 5.4. Issuance of Shares of Common Stock.
(a) Unless a Termination Event shall have occurred on or prior
to the Purchase Contract Settlement Date, the applicable Early Settlement
Date or the Merger Early Settlement Date, upon its receipt of payment in full
of the Purchase Price for the shares of Common Stock purchased by Holders
pursuant to the provisions of this Article and subject to Section 5.5(b), the
Company shall issue and deposit with the Company's transfer agent and
registrar for its Common Stock (the "Common Stock Transfer Agent"), for the
benefit of the Holders of the Outstanding PIES, one or more certificates
representing the newly issued shares of Common Stock registered in the name
of the Purchase Contract Agent (or its nominee) as custodian for the Holders
(such certificates for shares of Common Stock, together with any dividends or
distributions for which a record date and payment date for such dividend or
distribution has occurred after the applicable Early Settlement Date, the
Merger Early Settlement Date or the Purchase Contract Settlement Date, as the
case may be, being hereinafter referred to as the "Purchase Contract
Settlement Fund") to which the Holders are entitled hereunder. The Company
shall furnish to the Purchase Agent the name and address of the Common Stock
Transfer Agent and any change thereof.
(b) Upon surrender of a Certificate to the Purchase Contract
Agent on or after the applicable Early Settlement Date, the Merger Early
Settlement Date or the Purchase Contract Settlement Date, as the case may be,
together with settlement instructions thereon duly completed and executed,
the Holder of such 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 PIES then held by such
Holder), together with cash in lieu of fractional shares as provided in
Section 5.12 and any dividends or distributions with respect to such shares
42
constituting part of the Purchase Contract Settlement Fund, but without any
interest thereon (or, if such Certificate is not surrendered to the Purchase
Contract Agent; or if no such instructions are given to the Purchase Contract
Agent by the Holder, the Common Stock Agent shall hold such certificate
representing shares of Common Stock, and the Purchase Contract Agent shall
hold such cash in lieu of fractional shares and dividends or distributions,
as applicable, in the name of the Purchase Contract Agent or its nominee in
trust for the benefit of such Holder until the expiration of the time period
specified in the abandoned property laws of the relevant state following
which the Purchase Contract Agent shall cause such cash to be delivered to
such Holders), and the Certificate so surrendered shall forthwith be
cancelled. Such shares shall be registered by the Common Stock Transfer Agent
in the Company's register for its Common Stock and in accordance with its
customary procedures for issuance of such Common Stock, in the name of the
Holder or the Holder's designee as specified in the settlement instructions
provided by the Holder to the Purchase Contract Agent and forwarded by the
Purchase Contract Agent to the Common Stock Transfer Agent. 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 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 Certificate evidencing such Purchase Contract or has
established to the satisfaction of the Company that such tax either has been
paid or is not payable.
Section 5.5. Adjustment of Settlement Rate and Early 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 the Common Stock in Common Stock, the Settlement Rate in
effect or the Early Settlement Rate, as applicable, in effect at the
opening of business on the Business Day following the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be increased by dividing such Settlement Rate by a
fraction of which:
(i) 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
(ii) 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 any shares issuable in respect of any
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 Common Stock (not being available on an equivalent
basis to Holders of the PIES upon settlement of the Purchase Contracts
relating to such PIES) entitling them, for a
43
period expiring within 45 days after the record date for the
determination of shareholders 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 Common
Stock on the date fixed for the determination of shareholders entitled
to receive such rights, options or warrants (other than pursuant to a
dividend reinvestment plan), the Settlement Rate or the Early Settlement
Rate, as applicable, 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 or the Early Settlement Rate, as
applicable, by a fraction of which:
(i) 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
(ii) 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 any shares issuable in respect of any
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 or split into a greater number of shares of Common Stock, the
Settlement Rate or the Early Settlement Rate, as applicable, in effect
at the opening of business on the day following the day upon which such
subdivision or split 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 or the Early Settlement Rate, as applicable, 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, split or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of Common Stock evidences of its indebtedness
or assets (including securities, but excluding any rights, options or
warrants referred to in paragraph (2) of this Section 5.5(a), any
dividend or distribution paid exclusively in cash and any dividend or
distribution referred to in paragraph (1) of this Section 5.5(a)), the
Settlement Rate or the Early Settlement Rate, as applicable, in effect,
shall be adjusted so that the same shall
44
equal the rate determined by dividing the Settlement Rate or the Early
Settlement Rate, as applicable, in effect immediately prior to the close
of business on the date fixed for the determination of shareholders
entitled to receive such distribution by a fraction of which:
(i) the numerator shall be the Current Market Price per
share of 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) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of Common
Stock; and
(ii) the denominator shall be such Current Market Price
per share of 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
shareholders entitled to receive such distribution. In any case in which
this paragraph (4) is applicable, paragraph (2) of this Section 5.5(a)
shall not be applicable.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of Common Stock (I) cash (excluding any cash
that is distributed in a Reorganization Event to which Section 5.5(b)
applies or as part of a distribution referred to in paragraph (4) of
this Section 5.5(a)) in an aggregate amount that, combined together with
the aggregate amount of any other distributions to all holders of Common
Stock made exclusively in cash (other than in connection with a
Reorganization Event) within the 12 months preceding the date of payment
of such distribution and in respect of which no adjustment pursuant to
this paragraph (5) or paragraph (6) of this Section has been made and
(II) the aggregate of any cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of consideration payable
in respect of any tender or exchange offer by the Company or any of its
subsidiaries for all or any portion of Common Stock concluded within the
12 months preceding the date of payment of the distribution described in
Clause (I) above and in respect of which no adjustment pursuant to this
paragraph (5) or paragraph (4) or paragraph (6) of this Section 5.5(a)
has been made, exceeds 15% of the product of the Current Market Price
per share of 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 or Early Settlement Rate, as
applicable, in effect, shall be increased so that the same shall equal
the rate determined by dividing the Settlement Rate or Early Settlement
Rate, as applicable, in effect immediately prior to the close of
business on the date fixed for determination of the shareholders
entitled to receive such distribution by a fraction of which:
(i) the numerator 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
combined amount distributed or payable in the
45
transactions described in clauses (I) and (II) above divided by (y)
the number of shares of Common Stock outstanding on such date for
determination; and
(ii) the denominator shall be equal to the Current Market
Price per share of 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 Common Stock
shall expire and such tender or exchange offer (as amended upon the
expiration thereof) shall require the payment to shareholders (based on
the acceptance (up to any maximum specified in the terms of the tender
or exchange offer) of Purchased Shares) of (I) 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 the aggregate of the cash
plus the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board
Resolution), as of the expiration of such tender or exchange offer, of
consideration payable in respect of any other tender or exchange offer,
by the Company or any subsidiary of the Company for all or any portion
of the Common Stock expiring within the 12 months preceding the
expiration of such tender or exchange offer and in respect of which no
adjustment pursuant to paragraph (5) of this Section 5.5(a) or this
paragraph (6) has been made, and (II) the aggregate amount of any
distributions to all holders of Common Stock made exclusively in cash
within the 12 months preceding the expiration of such tender or exchange
offer and in respect of which no adjustment pursuant to paragraph (5) of
this Section 5.5(a) or this paragraph (6) has been made, exceeds 15% of
the product of the Current Market Price per share of 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 or Early Settlement Rate, as
applicable, in effect, shall be adjusted so that the same shall equal
the rate determined by dividing the Settlement Rate or Early Settlement
Rate, as applicable, in effect immediately prior to the close of
business on the date of the Expiration Time by a fraction of which:
(i) the numerator shall be equal to (A) the product of (1)
the Current Market Price per share of Common Stock on the date of
the Expiration Time and (2) the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time
less (B) the amount of cash plus the fair market value (determined
as aforesaid) of the aggregate consideration payable to
shareholders based on the transactions described in clauses (I) and
(II) above (assuming in the case of clause (I) the acceptance, up
to any maximum specified in the terms of the tender or exchange
offer, of Purchased Shares), and
(ii) the denominator shall be equal to the product of (A)
the Current Market Price per share of Common Stock as of the
Expiration Time and (B) the number of shares of Common Stock
outstanding (including any tendered shares) as of the Expiration
Time less the number of all shares validly tendered and not
46
withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the
"Purchased Shares").
(7) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any
reclassification upon a Reorganization Event to which Section 5.5(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 shareholders entitled to receive such
distribution" and the "date fixed for such determination" within
the meaning of paragraph (4) of this Section 5.5(a)); and
(b) a subdivision, split or combination, as the case may
be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common
Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which
such subdivision or split becomes effective" or "the day upon which
such combination becomes effective", as the case may be, and "the
day upon which such subdivision, split or combination becomes
effective" within the meaning of paragraph (3) of this Section
5.5(a)).
(8) The "Current Market Price" per share of Common Stock on any
day means the average of the daily Closing Prices for the five
consecutive Trading Days selected by the Company commencing not more
than 30 Trading Days before, and ending not later than, the earlier of
the day in question and the day before the "ex date" with respect to the
issuance or distribution requiring such computation. For purposes of
this paragraph, the term "ex date", when used with respect to any
issuance or distribution, shall mean the first date on which the Common
Stock trades regular way on such exchange or in such market without the
right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate or the Early
Settlement Rate, as applicable, 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 or the Early Settlement Rate, as
applicable, shall be required unless such adjustment would require an
increase or decrease of at least one percent thereof; 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 or the Early Settlement Rate, as applicable, pursuant to paragraph
(1), (2), (3), (4), (5), (6), (7) or (10) of this Section 5.5(a), an
adjustment shall also be made to the Applicable Closing Price solely to
determine which of clauses (1), (2) or (3) of the definition of
Settlement Rate or the Early Settlement Rate, as applicable, in Section
5.1 will apply on the Purchase Contract Settlement Date. Such adjustment
shall be made by multiplying the Applicable Closing Price by a fraction
of which the numerator shall be the Settlement Rate or the Early
Settlement Rate, as applicable, in effect immediately after such
adjustment pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
(10) of this Section 5.5(a) and the
47
denominator shall be the Settlement Rate or the Early Settlement Rate,
as applicable, in effect immediately before such adjustment; PROVIDED,
HOWEVER, that if such adjustment to the Settlement Rate or the Early
Settlement Rate, as applicable, in effect, is required to be made
pursuant to the occurrence of any of the events contemplated by
paragraph (1), (2), (3), (4), (5), (7) or (10) of this Section 5.5(a)
during the period taken into consideration for determining the
Applicable Closing Price, appropriate and customary adjustments shall be
made to the Settlement Rate or the Early Settlement Rate, as applicable.
(10) The Company may make such increases in the Settlement Rate
or the Early Settlement Rate, as applicable, in addition to those
required by this Section 5.5(a), 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, options or warrants to purchase or subscribe for
stock or from any event treated as such for income tax purposes or for
any other reason.
(b) Adjustment for Consolidation, Merger or Other
Reorganization Event.
In the event of:
(i) any consolidation or merger of the Company with or
into another Person (other than a merger or consolidation in which
the Company is the continuing corporation and in which the shares
of Common Stock outstanding immediately prior to the merger or
consolidation are 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 other than as a result of or after the occurrence of a
Termination Event (any such event, a "Reorganization Event"),
the Settlement Rate or Early Settlement Rate, as applicable, in effect, will
be adjusted to provide that each Holder of PIES will receive on the Purchase
Contract 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 (without any interest thereon, and
without any right to dividends or distribution thereon which have a record
date that is prior to the Purchase Contract Settlement Date) by a Holder of
the number of shares of Common Stock issuable on account of each Purchase
Contract if the Purchase Contract 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 (any such Person, a "Constituent Person"), or an
Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Stock held by Affiliates of the
Company and non-Affiliates and such Holder failed to exercise his rights of
election, if
48
any, as to the kind or amount of securities, cash and other property
receivable upon such Reorganization Event (PROVIDED that if the kind or
amount of securities, cash and other property receivable upon such
Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of
election shall not have been exercised ("non-electing share"), then for the
purpose of this Section the kind and amount of securities, cash and other
property receivable upon such Reorganization Event by each non-electing share
shall be deemed to be the kind and amount so receivable per share by a
plurality of the non-electing shares).
In the event of such a Reorganization Event, the Person formed
by such consolidation, merger or exchange or the Person which acquires the
assets of the Company or, in the event of a liquidation, dissolution or
winding up of the Company, the Company or a liquidating trust created in
connection therewith, shall execute and deliver to the Purchase Contract
Agent an agreement supplemental hereto providing that the Holders of each
Outstanding PIES shall have the rights provided by this Section 5.5(b). Such
supplemental agreement shall provide for adjustments which, for events
subsequent to the effective date of such supplemental agreement, shall be as
nearly equivalent as may be practicable to the adjustments provided for in
this Section. The above provisions of this Section shall similarly apply to
successive Reorganization Events.
(c) All calculations and determinations pursuant to this
Section 5.5 shall be made by the Company or its agent and the Purchase
Contract Agent shall have no responsibility with respect thereto.
Section 5.6. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate or Early Settlement Rate, as
applicable, and the Applicable Closing Price are adjusted as herein provided,
the Company shall:
(i) forthwith compute the adjusted Settlement Rate or Early
Settlement Rate, as applicable and Applicable Closing Price in accordance
with Section 5.5 and prepare and transmit to the Purchase Contract Agent an
Officers' Certificate setting forth the Settlement Rate or Early Settlement
Rate, as applicable and the Applicable Closing Price, the method of
calculation thereof in reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an
event that requires an adjustment to the Settlement Rate or Early Settlement
Rate, as applicable and the Applicable Closing Price pursuant to Section 5.5
(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 PIES
of the occurrence of such event and a statement in reasonable detail setting
forth the method by which the adjustment to the Settlement Rate then or Early
Settlement Rate, as applicable and the Applicable Closing Price was
determined and setting forth the adjusted Settlement Rate or Early Settlement
Rate, as applicable and Applicable Closing Price.
49
(b) The Purchase Contract Agent shall not at any time be under
any duty or responsibility to any Holder of PIES to determine whether any
facts exist which may require any adjustment of the Settlement Rate or Early
Settlement Rate, as applicable or the Applicable Closing Price, or with
respect to the nature or extent or calculation of any such adjustment when
made, or with respect to the method employed in making the same. The Purchase
Contract Agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any shares 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 Purchase Contract Agent makes no representation
with respect thereto. The Purchase Contract Agent shall not be responsible
for any failure of the Company to issue, transfer or deliver any shares of
Common Stock pursuant to a Purchase Contract or to comply with any of the
duties, responsibilities or covenants of the Company contained in this
Article.
Section 5.7. Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights
of the Holders to receive, and the obligations of the Company to pay,
Purchase Contract Adjustment Payments and the rights and obligations of
Holders to purchase shares of Common Stock, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Purchase Contract Agent or the Company, if, on or prior to the
Purchase Contract Settlement Date, a Termination Event shall have occurred.
Upon and after the occurrence of a Termination Event, the PIES shall
thereafter represent the right to receive the Senior Notes or Treasury
Portfolio Interest forming a part of such PIES in the case of Corporate PIES,
or Treasury Securities in the case of Treasury PIES, in accordance with the
provisions of Section 5.4 of the Pledge Agreement. Upon the occurrence of a
Termination Event, the Company shall promptly, but in no event later than two
Business Days thereafter, give written notice to the Purchase Contract Agent
and the Collateral Agent and shall cause written notice thereof to be given
to the Holders, at their addresses as they appear in the Register.
Section 5.8. Cash Settlement
(a) (i) Unless a Holder has effected an Early Settlement
pursuant to Section 5.9 or a Merger Early Settlement pursuant to Section
5.10, a Termination Event shall have occurred pursuant to Section 5.7 or a
Successful Remarketing shall have occurred, Holders of Corporate PIES may
settle their Purchase Contracts in cash by delivering to the Purchase
Contract Agent a notice in substantially the form of Exhibit F hereto
regarding its intention to pay in cash ("Cash Settlement") the Purchase Price
for the shares of Common Stock to be purchased pursuant to the related
Purchase Contract; PROVIDED that such notice must be given by 11:00 a.m. (New
York City time) on the sixth Business Day immediately preceding the Purchase
Contract Settlement Date.
(ii) A Holder of a Corporate PIES who has so notified the
Purchase Contract Agent of its intention to make a Cash Settlement in
accordance with paragraph (a) (i) above shall pay the Purchase Price to the
Securities Intermediary for deposit in the Collateral Account prior to 11:00
a.m. (New York City time) on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date in lawful money of the United States by
certified or cashiers'
50
check or wire transfer, in each case in immediately available funds payable
to or upon the order of the Securities Intermediary and the Securities
Intermediary shall instruct the Collateral Agent to release to the Purchase
Contract Agent the Pledged Senior Notes, for delivery to the Holders of the
related Corporate PIES who have complied with this Section. Any cash received
by the Collateral Agent shall be invested promptly by the Securities
Intermediary in Permitted Investments and paid to the Company on the Purchase
Contract Settlement Date in settlement of the Purchase Contract in accordance
with the terms of this Agreement and the Pledge Agreement. Any funds received
by the Securities Intermediary in respect of the investment earnings from the
investment in such Permitted Investments shall be distributed to the Purchase
Contract Agent when received for payment, on a pro rata basis based on the
number of Corporate PIES formerly held by such Holder, to the Holders of the
related Corporate PIES on the Purchase Contract Settlement Date.
(iii) If a Holder of a Corporate PIES fails to notify the
Purchase Contract Agent of its intention to make a Cash Settlement in
accordance with paragraph (a)(i) above, or notifies the Purchase Contract
Agent as provided in paragraph (a)(i) above of its intention to pay the
Purchase Price in cash but fails to make such payment as required by
paragraph (a)(ii) above, such Holder shall be deemed to have consented (A) to
the disposition of the Pledged Senior Notes on the third Business Day prior
to the Purchase Contract Settlement Date pursuant to the Final Remarketing as
described in Section 5.3 or, (B) if a Failed Remarketing occurs, to the
Collateral Agent, for the benefit of the Company, and upon written direction
of the Company as provided in the Pledge Agreement, exercising all of its
rights as a secured party with respect to any Pledged Senior Notes under the
Pledge Agreement and, subject to applicable law and Section 5.3(i), by either
(i) retaining such Senior Notes in full satisfaction of such Holder's
obligations under the related Purchase Contracts or (ii) selling such Senior
Notes in one or more public or private sales.
(iv) By 11:00 a.m. (New York City time), on the fourth Business
Day immediately preceding the Purchase Contract Settlement Date, the Purchase
Contract Agent, based on notices received by the Purchase Contract Agent
pursuant to Section 5.8(a)(i) hereof and notice from the Securities
Intermediary regarding cash received by it prior to such time, shall notify
the Remarketing Agent, the Collateral Agent, the Trustee and the Company, by
use of a notice substantially in the form of Exhibit G hereto, of the
aggregate principal amount of Pledged Senior Notes to be remarketed on the
Final Remarketing Date in accordance with the procedures set forth in Section
5.3(c).
(b) (i) Unless a Holder of a Treasury PIES has effected an
Early Settlement of the related Purchase Contract in the manner described in
Section 5.9 or a Merger Early Settlement of the related Purchase Contract in
the manner described in Section 5.10, a Termination Event shall have occurred
pursuant to Section 5.7 or a Successful Remarketing shall have occurred,
Holders of Treasury PIES may settle their Purchase Contracts in cash by
delivering to each Holder of a Treasury PIES who intends to pay in cash to
satisfy such Holder's obligation under the Purchase Contract shall notify the
Purchase Contract Agent by use of a notice in substantially the form of
Exhibit F hereto regarding its intention to pay in cash the Purchase Price
for the shares of Common Stock to be purchased pursuant to the related
Purchase Contract. To settle its Purchase Contracts in cash pursuant to this
Section, such notice must be given prior to 5:00 p.m. (New York City time),
on the second Business Day immediately
51
preceding the Purchase Contract Settlement Date. Prior to 11:00 a.m. (New
York City time), on the next succeeding Business Day, the Purchase Contract
Agent shall notify the Collateral Agent of the receipt of such notices from
such Holders intending to make a Cash Settlement.
(ii) A Holder of a Treasury PIES who has so notified the
Purchase Contract Agent of its intention to make a Cash Settlement in
accordance with paragraph (b)(i) above shall pay the Purchase Price to the
Securities Intermediary for deposit in the Collateral Account prior to 11:00
a.m. (New York City time), on the Business Day immediately preceding the
Purchase Contract Settlement Date in lawful money of the United States by
certified or cashiers' check or wire transfer, in each case, in immediately
available funds payable to or upon the order of the Securities Intermediary
and the Securities Intermediary shall instruct the Collateral Agent to
release to the Purchase Contract Agent the Pledged Treasury Securities for
delivery to the Holders of the related Treasury PIES who have complied with
this Section. Any cash received by the Collateral Agent shall be invested
promptly by the Securities Intermediary in Permitted Investments and paid to
the Company on the Purchase Contract Settlement Date in settlement of the
Purchase Contract in accordance with the terms of this Agreement and the
Pledge Agreement. Any funds received by the Securities Intermediary in
respect of the investment earnings from the investment in such Permitted
Investments shall be distributed to the Purchase Contract Agent when received
for payment to the Holder of the related Treasury PIES on the Purchase
Contract Settlement Date.
(iii) If a Holder of a Treasury PIES fails to notify the
Purchase Contract Agent of its intention to make a Cash Settlement in
accordance with paragraph (b)(i) above, or does notify the Purchase Contract
Agent as provided in paragraph (b)(i) above of its intention to pay the
Purchase Price in cash but fails to make such payment as required by
paragraph (b)(ii) above, then upon the maturity of the Pledged Treasury
Securities held by the Securities Intermediary, the principal amount of the
Treasury Securities received by the Securities Intermediary shall be invested
promptly in Permitted Investments. On the Purchase Contract Settlement Date,
an amount equal to the Purchase Price shall be remitted to the Company as
payment thereof without receiving any instructions from the Holder of the
related Treasury PIES. In the event the sum of the Proceeds from the related
Pledged Treasury Securities and the investment earnings earned from such
investments is in excess of the aggregate Purchase Price of the Purchase
Contracts being settled thereby, the Collateral Agent shall cause the
Securities Intermediary to distribute such excess to the Purchase Contract
Agent for the benefit of the Holder of the related Treasury PIES when
received.
(c) Upon Cash Settlement of any Purchase Contract:
(i) the Collateral Agent will in accordance with the terms of
the Pledge Agreement cause the Pledged Senior Notes or the Pledged Treasury
Securities, as the case may be, relating to the relevant PIES to be released
from the Pledge, free and clear of any security interest of the Company, and
transferred to the Purchase Contract Agent for delivery to the Holder thereof
or its designee as soon as practicable;
(ii) subject to the receipt thereof, the Purchase Contract
Agent shall, by book-entry transfer or other appropriate procedures, in
accordance with written instructions provided by the Holder thereof, transfer
such Senior Notes or such Treasury Securities, as the
52
case may be (or, if no such instructions are given to the Purchase Contract
Agent by the Holder, the Purchase Contract Agent shall hold such Senior Notes
or such Treasury Securities, as the case may be, and any interest payment
thereon, in the name of the Purchase Contract Agent or its nominee in trust
for the benefit of such Holder until the expiration of the time period
specified in the abandoned property laws of the relevant State) and, in
connection with such Senior Notes, the Purchase Contract Agent shall have no
responsibility to vote or take any other consensual action with respect
thereto; and
(iii) the Company shall cause the number of shares of Common
Stock issuable upon Cash Settlement of the related Purchase Contracts
pursuant to Section 5.4, together with any payment in lieu of any fraction of
a share, as provided in Section 5.12, to the Holder which has exercised its
right to Cash Settlement, in accordance with Section 5.4.
Section 5.9. Early Settlement.
(a) Unless a Holder has effected a Merger Early Settlement of
the related Purchase Contract pursuant to Section 5.10 or a Termination Event
shall have occurred pursuant to Section 5.7, subject to and upon compliance
with the provisions of this Section 5.9, at the option of the Holder thereof,
Purchase Contracts relating to PIES may be settled early ("Early Settlement")
on or prior to the Election Date. In order to exercise the right to effect
Early Settlement with respect to any Purchase Contracts, the Holder of the
Certificate evidencing PIES shall deliver such Certificate to the Purchase
Contract Agent at the Corporate Trust Office duly endorsed for transfer to
the Company or in blank with the form of Election to Settle Early on the
reverse thereof duly completed and accompanied by payment (payable to the
Company in immediately available funds) in an amount (the "Early Settlement
Amount") equal to:
(1) 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; PLUS
(2) 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 Purchase Contract Adjustment
Payments payable on such Payment Date with respect to such Purchase
Contracts.
Except as provided in the immediately preceding sentence and subject to the
last paragraph of Section 5.2, no payment shall be made upon Early Settlement
of any Purchase Contract on account of any Purchase Contract Adjustment
Payments 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 relating
to any PIES 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 PIES 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 PIES shall be the next succeeding
Business Day.
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Upon the receipt of such Certificate and Early Settlement
Amount from the Holder, the Purchase Contract Agent shall pay to the Company
such Early Settlement Amount, the receipt of which payment the Company shall
confirm in writing. The Purchase Contract Agent shall then, in accordance
with Section 5.6 of the Pledge Agreement, notify the Collateral Agent that
(A) such Holder has elected to effect an Early Settlement, which notice shall
set forth the number of such Purchase Contracts as to which such Holder has
elected to effect Early Settlement, (B) the Purchase Contract Agent has
received from such Holder, and paid to the Company as confirmed in writing by
the Company, the related Early Settlement Amount and (C) all conditions to
such Early Settlement have been satisfied.
(b) Upon Early Settlement of Purchase Contracts by a Holder of
the related PIES, the Company shall issue, and the Holder shall be entitled
to receive, 3.0084 shares of Common Stock, subject to adjustment in the same
manner and at the same time as the Settlement Rate is adjusted pursuant to
Section 5.5, on account of each Purchase Contract as to which Early
Settlement is effected (the "Early Settlement Rate").
(c) No later than the third Business Day after the applicable
Early Settlement Date, the Company shall cause:
(1) the shares of Common Stock issuable upon Early Settlement
of the related Purchase Contracts to be issued and delivered pursuant to
Section 5.4, together with payment in lieu of any fraction of a share,
as provided in Section 5.12; and
(2) the related Senior Notes, in the case of Corporate PIES, or
the related Treasury Securities, in the case of Treasury PIES, to be
released from the Pledge by the Collateral Agent and transferred, in
each case, to the Purchase Contract Agent for delivery to the Holder
thereof or its designee.
(d) Upon Early Settlement of any Purchase Contracts, and
subject to receipt by the Common Stock Transfer Agent of shares of Common
Stock from the Company and receipt by the Purchase Contract Agent of the
related Senior Notes, or Treasury Securities, as the case may be, from the
Securities Intermediary, as applicable, the Common Stock Transfer 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
Certificate evidencing the related PIES as forwarded by the Purchase
Contract Agent to the Common Stock Transfer Agent, deliver to such Holder a
certificate or certificates for the full number of shares of Common Stock
issuable upon such Early Settlement of the related Purchase Contract,
pursuant to Section 5.4 and the Purchase Contract Agent shall transfer to
such Holder the related Senior Notes or Treasury Securities, as the case may
be, forming a part of such PIES.
(e) In the event that Early Settlement is effected with respect
to Purchase Contracts relating to less than all the PIES evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the
Purchase Contract Agent shall execute on behalf of the Holder, authenticate
and deliver to the Holder thereof, at the expense of the Company, a
Certificate evidencing the PIES as to which Early Settlement was not effected.
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(f) Notwithstanding anything to the contrary contained herein,
Holders may make effect Early Settlement of Treasury PIES only in integral
multiples of 20 Treasury PIES.
Section 5.10. Early Settlement Upon Merger.
(a) In the event of a merger or consolidation of the Company
(which for purposes of this Section 5.10 includes any successor company
pursuant to a Cash Merger (as defined below)) in which the Common Stock
outstanding immediately prior to such merger or consolidation is exchanged
for consideration consisting of at least 30% cash or cash equivalents (any
such event a "Cash Merger" and the date on which the Cash Merger takes place
being referred to as a "Cash Merger Date"), then the Company (or the
successor to the Company hereunder) shall be required to offer the Holder of
each Outstanding PIES the right to settle the Purchase Contract relating to
such PIES prior to the Purchase Contract Settlement Date (such early
settlement, "Merger Early Settlement") as provided herein. On or before the
fifth Business Day after the consummation of a Cash Merger, the Company or,
at the request and expense of the Company, the Purchase Contract Agent, shall
give all Holders notice of the occurrence of the Cash Merger and of the right
of Merger Early Settlement arising as a result thereof. The Company shall
also deliver a copy of such notice to the Purchase Contract Agent and the
Collateral Agent.
Each such notice shall contain:
(i) the date, which shall be not less than 20 Business Days nor
more than 30 Business Days after the date of such notice, on which the Merger
Early Settlement may be effected (the "Merger Early Settlement Date");
(ii) the date, which shall be three Business Days prior to the
Merger Early Settlement Date, by which the Merger Early Settlement right must
be exercised by notice by the Holders to the Purchase Contract Agent and the
Company;
(iii) the Settlement Rate in effect as a result of such Cash
Merger and the kind and amount of securities, cash and other property
receivable by the Holder upon settlement of each Purchase Contract pursuant
to Section 5.5(b);
(iv) a statement to the effect that all or a portion of the
Purchase Price payable by the Holder to settle the Purchase Contract will be
offset against the amount of cash so receivable upon exercise of Merger Early
Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the
Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder must
(i) deliver to the Purchase Contract Agent at the Corporate Trust Office at
least three Business Days before the Merger Settlement Date, at 5:00 p.m.
(New York City time), the Certificate(s) evidencing the PIES with respect to
which the Merger Early Settlement right is being exercised, 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 (ii) make payment (payable to the
Company in immediately available funds in an amount equal to the Early
Settlement Amount less the amount of cash that
55
otherwise would be deliverable by the Company upon settlement of the Purchase
Contract in lieu of Common Stock pursuant to Section 5.5(b) and as described
in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall
cause to be delivered (i) the net cash, securities and other property to be
received by such exercising Holder, equal to the Settlement Rate as adjusted
pursuant to Section 5.5, in respect of the number of Purchase Contracts for
which such Merger Early Settlement right was exercised pursuant to the
applicable instructions contained in Section 5.4(b), (ii) the Company shall
cause the number of shares of Common Stock issuable upon Merger Early
Settlement, if any, of the related Purchase Contracts pursuant to Section
5.4, together with any payment in lieu of any fraction of a share, as
provided in Section 5.12, to the Holder which has exercised its right to Cash
Settlement, in accordance with Section 5.4 and (iii) the related Pledged
Senior Notes, or if substituted therefore, the Pledged Treasury Portfolio
Interest, in the case of Corporate PIES, or Pledged Treasury Securities, in
the case of Treasury PIES, to be released from the Pledge by the Collateral
Agent and transferred, in each case, to the Purchase Contract Agent for
delivery to the Holder thereof or its designee. In the event a Merger Early
Settlement right shall be exercised by a Holder in accordance with the terms
hereof, all references herein to Purchase Contract Settlement Date shall be
deemed to refer to such Merger Early Settlement Date.
(d) Upon Merger Early Settlement of any Purchase Contracts, and
subject to receipt of such net cash, securities or other property from the
Company and the Pledged Senior Notes, Pledged Treasury Portfolio Interest or
Pledged Treasury Securities, as the case may be, from the Collateral Agent,
the Purchase Contract Agent shall, in accordance with the instructions
provided by the Holder thereof on the applicable form of Election to Settle
Early on the reverse of the Certificate evidencing the related PIES, (i)
transfer to the Holder the Pledged Senior Notes, Pledged Treasury Portfolio
Interest or Pledged Treasury Securities, as the case may be, forming a part
of such PIES, and (ii) deliver to the Holder such net cash, securities or
other property issuable upon such Merger Early Settlement together with
payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with
respect to Purchase Contracts relating to less than all the PIES evidenced by
a Certificate, upon such Merger Early Settlement the Company (or the
successor to the Company hereunder) shall execute and the Purchase Contract
Agent shall authenticate, countersign and deliver to the Holder thereof, at
the expense of the Company, a Certificate evidencing the PIES as to which
Merger Early Settlement was not effected.
(f) Notwithstanding anything to the contrary contained herein,
Holders may effect Merger Early Settlement of PIES only in integral multiples
of 20 Corporate PIES or 20 Treasury PIES.
Section 5.11. Optional Remarketing.
Pursuant to the Indenture and the Remarketing Agreement,
holders of Separated Senior Notes may elect to have such Separated Senior
Note remarketed if such holder, on or prior to 5:00 p.m. (New York City time)
on the Election Date, delivers (a) to the Trustee and the Collateral Agent a
notice of that election, substantially in the form of Exhibit B of the
Indenture Officers' Certificate and Exhibit F of the Pledge Agreement,
respectively, specifying the aggregate principal amount of Senior Notes to be
remarketed, and (b) such Separated Senior Notes, by book-entry transfer or
other appropriate procedures, to the Collateral Agent for
56
Remarketing, in each case, pursuant to the Indenture. Once the holder of such
Separated Senior Notes delivers such notice and Separated Senior Notes as
specified in the preceding sentence, such election may not be withdrawn and
may not be conditioned upon the level at which the Reset Rate is established
in the Remarketing; PROVIDED, HOWEVER, that if such a holder delivers only
such a notice but not the Separated Senior Notes subject to the notice, then
none of such holder's Separated Senior Notes shall be included in the
Remarketing.
Section 5.12. No Fractional Shares.
No fractional shares or scrip representing fractional shares of
Common Stock shall be issued or delivered upon settlement on the Purchase
Contract Settlement Date or upon Early Settlement or Merger Early Settlement
of any Purchase Contracts. If 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 Certificates so surrendered. Instead of any
fractional share of Common Stock which would otherwise be deliverable upon
settlement of any Purchase Contracts on the Purchase Contract Settlement Date
or upon Early Settlement or Merger Early Settlement, the Company, through the
Purchase Contract Agent, shall make a cash payment in respect of such
fractional interest in an amount equal to the value of such fractional shares
times the Applicable Closing Price. The Company shall provide the Purchase
Contract Agent from time to time with sufficient funds to permit the Purchase
Contract Agent to make all cash payments required by this Section 5.12 in a
timely manner. Promptly after the calculation of the Applicable Closing
Price, the Company shall give the Purchase Contract Agent notice thereof. All
calculations and determinations of the Applicable Closing Price shall be made
by the Company or its agent and the Purchase Contract Agent shall have no
responsibility with respect thereto.
Section 5.13. 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 Certificate evidencing a
PIES or any issuance of a share of Common Stock in a name other than that of
the registered Holder of a Certificate surrendered in respect of the PIES
evidenced thereby, other than in the name of the Purchase Contract Agent, as
custodian for such Holder, and the Company shall not be required to issue or
deliver such share certificates or Certificates unless the Person or Persons
requesting the transfer or issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
ARTICLE VI
REMEDIES
Section 6.1. Unconditional Right of Holders to Receive Purchase Contract
Adjustment Payments and to Purchase Shares of Common Stock.
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Each Holder of Corporate PIES or Treasury PIES shall have the
right, which is absolute and unconditional, (1) (subject to the payment by
such Holder of Purchase Contract Adjustment Payments pursuant to Section
5.9(a)), to receive each Purchase Contract Adjustment Payment with respect to
the Purchase Contract constituting a part of such PIES on the respective
Payment Date for such PIES and (2) to purchase shares of Common Stock
pursuant to such Purchase Contract and, in each such case, to institute suit
for the enforcement of any such Purchase Contract Adjustment Payment and
right to purchase shares of Common Stock, and such rights shall not be
impaired without the consent of such Holder.
Section 6.2. Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any
right or remedy under this Agreement and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
such Holder, then and in every such case, subject to any determination in
such proceeding, the Company and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all rights
and remedies of such Holder shall continue as though no such proceeding had
been instituted.
Section 6.3. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates in the last
paragraph of Section 3.10, no right or remedy herein conferred upon or
reserved to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 6.4. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or
remedy upon a default shall impair any such right or remedy or constitute a
waiver of any such right. Every right and remedy given by this Article or by
law to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by such Holders.
Section 6.5. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of
Corporate PIES or Treasury PIES, by its acceptance of such Corporate PIES or
Treasury PIES, 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 Purchase Contract Agent for
any action taken, suffered or omitted by it as Purchase Contract Agent, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; PROVIDED that the provisions
of this Section shall not apply to any suit instituted by the Company, to any
suit instituted by the Purchase Contract Agent, to
58
any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% of the Outstanding PIES, or to any suit instituted by
any Holder for the enforcement of interest payable on any Senior Notes or
Purchase Contract Adjustment Payments on any Purchase Contract on or after
the respective Payment Date therefor in respect of any PIES held by such
Holder, or for enforcement of the right to purchase shares of Common Stock
under the Purchase Contracts constituting part of any PIES held by such
Holder.
Section 6.6. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Agreement; and the Company expressly
waives (to the extent that it may lawfully do so) all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Purchase Contract Agent or the
Holders, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VII
THE PURCHASE CONTRACT AGENT
Section 7.1. Certain Duties and Responsibilities.
(a) The Purchase Contract Agent:
(1) undertakes to perform, with respect to the PIES, such
duties and only such duties as are specifically set forth in this
Agreement and the Pledge Agreement, and no implied covenants or
obligations shall be read into this Agreement or the Pledge Agreement
against the Purchase Contract Agent; and
(2) in the absence of bad faith on its part, may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to
the Purchase Contract Agent and conforming to the requirements of this
Agreement or the Pledge Agreement, as applicable, but in the case of any
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Purchase Contract Agent, the Purchase
Contract Agent shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Agreement or the
Pledge Agreement, as applicable, but shall have no duty to confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein.
(b) No provision of this Agreement or the Pledge Agreement
shall be construed to relieve the Purchase Contract Agent from liability for
its own grossly negligent action, its own grossly negligent failure to act,
or its own willful misconduct, EXCEPT that:
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
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(2) the Purchase Contract Agent shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Purchase Contract Agent was grossly negligent
in ascertaining the pertinent facts; and
(3) no provision of this Agreement or the Pledge Agreement
shall require the Purchase Contract Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers.
(c) Whether or not therein expressly so provided, every
provision of this Agreement and the Pledge Agreement relating to the conduct
or affecting the liability of or affording protection to the Purchase
Contract Agent shall be subject to the provisions of this Section.
(d) The Purchase Contract Agent is authorized to execute and
deliver the Pledge Agreement in its capacity as Purchase Contract Agent. The
Purchase Contract Agent shall be entitled to all of the rights, privileges,
immunities and indemnities contained in this Agreement with respect to any
duties of the Purchase Contract Agent under, or actions taken, omitted to be
taken or suffered by the Purchase Contract Agent pursuant to the Pledge
Agreement.
Section 7.2. Notice of Default.
Within 30 days after the occurrence of any default by the
Company hereunder of which a Responsible Officer of the Purchase Contract
Agent has actual knowledge, the Purchase Contract Agent shall transmit by
mail to the Company and the Holders of PIES, as their names and addresses
appear in the Register, notice of such default hereunder, unless such default
shall have been cured or waived.
Section 7.3. Certain Rights of Purchase Contract Agent.
Subject to the provisions of Section 7.1:
(1) the Purchase Contract Agent may conclusively rely and shall
be fully 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;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate, Issuer
Order or Issuer Request, and any resolution of the Board of Directors of
the Company may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Agreement or the
Pledge Agreement the Purchase Contract Agent shall deem it desirable
that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Purchase Contract Agent (unless other
evidence be herein specifically prescribed) may, in the
60
absence of bad faith on its part, conclusively rely upon an Officers'
Certificate of the Company;
(4) the Purchase Contract Agent may consult with counsel of its
selection and the advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(5) the Purchase Contract Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Purchase Contract
Agent, in its discretion, may make reasonable further inquiry or
investigation into such facts or matters related to the execution,
delivery and performance of the Purchase Contracts as it may see fit,
and, if the Purchase Contract Agent shall determine to make such further
inquiry or investigation, it shall be given a reasonable opportunity to
examine the books, records and premises of the Company, personally or by
agent or attorney;
(6) the Purchase Contract Agent may execute any of the powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or an Affiliate and the Purchase Contract
Agent shall not be responsible for any misconduct or negligence on the
part of any agent or attorney or an Affiliate appointed with due care by
it hereunder;
(7) the rights, privileges, protections, immunities and
benefits given to the Purchase Contract Agent, including, but not
limited to, its right to be indemnified, are extended to, and shall be
enforceable by, the Purchase Contract Agent in each of its capacities
hereunder, and to each Purchase Contract Agent, custodian and other
Person employed to act hereunder;
(8) the Purchase Contract Agent shall not be liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(9) the Purchase Contract Agent shall not be charged with
knowledge of any default by the Company hereunder unless a Responsible
Officer of the Purchase Contract Agent shall have received at the
Corporate Trust Office of the Purchase Contract Agent written notice of
such default;
(10) the permissive right of the Purchase Contract Agent to do
things enumerated in this Agreement shall not be construed as a duty;
(11) in no event shall the Purchase Contract Agent be liable
for any consequential, punitive, indirect or special loss or damages of
any kind whatsoever (including but not limited to lost profit), even if
the Purchase Contract Agent has been advised of the likelihood of such
loss or damage and regardless of the form of action;
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(12) the Purchase Contract Agent shall not be responsible or
liable for any failure or delay in the performance of its obligations
under this Agreement arising out of or caused directly or indirectly, by
circumstances beyond its reasonable control, including without
limitation, acts of God; earthquake; fires; floods; wars; civil or
military disturbances; terrorist acts; sabotage; epidemics; riots;
interruptions, loss or malfunctions of utilities, computer (hardware or
software) or communications service; accidents; labor disputes; and acts
of civil or military authority or governmental actions; it being
understood that the Purchase Contract Agent shall use reasonable efforts
which are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances; and
(13) the Purchase Contract Agent may request that the Company
deliver a certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified action
pursuant to this Agreement, which certificate may be signed by any
person authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered
and not superseded.
Section 7.4. Not Responsible for Recitals or Issuance of PIES.
The recitals contained herein and in the Certificates shall be
taken as the statements of the Company, and the Purchase Contract Agent
assumes no responsibility for their accuracy. The Purchase Contract Agent
makes no representations as to the validity or sufficiency of either this
Agreement or of the PIES, or of the Pledge Agreement or the Pledge. The
Purchase Contract Agent shall not be accountable for the use or application
by the Company of the proceeds in respect of the PIES or the Purchase
Contracts and shall not be responsible for the perfection, priority or
maintenance of any security interest created or intended to be created under
the Pledge Agreement.
Section 7.5. May Hold PIES.
Any Registrar or any other agent of the Company, or the
Purchase Contract Agent and its Affiliates, in their individual or any other
capacity, may become the owner or pledgee of PIES and may otherwise deal with
the Company, the Collateral Agent or any other Person with the same rights it
would have if it were not Registrar or such other agent, or the Purchase
Contract Agent.
Section 7.6. Money Held in Custody.
Money held by the Purchase Contract Agent in custody hereunder
need not be segregated from the other funds except to the extent required by
law or provided herein. The Purchase Contract Agent shall be under no
obligation to invest or pay interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
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Section 7.7. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Purchase Contract Agent compensation for all
services rendered by it hereunder and under the Pledge Agreement as the
Company and the Purchase Contact Agent shall from time to time agree;
(2) except as otherwise expressly provided for herein, to
reimburse the Purchase Contract Agent upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Purchase Contract Agent in accordance with any provision of this
Agreement and the Pledge Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its gross negligence or willful misconduct; and
(3) to indemnify the Purchase Contract Agent and any
predecessor Purchase Contract Agent for, and to hold it harmless
against, any loss, liability or expense, including taxes (other than
taxes based upon, measured by or determined by the income of the
Purchase Contract Agent), incurred without gross negligence or willful
misconduct 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 such claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
For purposes of this Section 7.7, "Purchase Contract Agent"
shall include any predecessor Purchase Contract Agent; provided, however,
that the negligence, bad faith or willful misconduct of any Purchase Contract
Agent hereunder shall not affect the rights of any other Purchase Contract
Agent hereunder.
The provisions of this Section 7.7 shall survive the
termination of this Agreement, the satisfaction or discharge of the PIES
and/or the Separated Senior Notes and/or the resignation or removal of the
Purchase Contract Agent.
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility.
There shall at all times be a Purchase Contract 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 (or
being a member of a bank holding company having) a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
Federal or State authority and having a corporate trust office in the Borough
of Manhattan, The City of New York, if there be such a corporation in the
Borough of Manhattan, The City of New York, eligible under this Article and
willing to act on reasonable terms. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Purchase Contract Agent shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
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Section 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Purchase Contract Agent
and no appointment of a successor Purchase Contract Agent pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Purchase Contract Agent in accordance with the applicable
requirements of Section 7.10.
(b) The Purchase Contract Agent may resign at any time by
giving written notice thereof to the Company 60 days prior to the effective
date of such resignation. If the instrument of acceptance by a successor
Purchase Contract Agent required by Section 7.10 shall not have been
delivered to the Purchase Contract Agent within 30 days after the giving of
such notice of resignation, the resigning Purchase Contract Agent may
petition, at the expense of the Company, any court of competent jurisdiction
for the appointment of a successor Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any time by
Act of the Holders of a majority in number of the Outstanding PIES delivered
to the Purchase Contract Agent and the Company. If the instrument of
acceptance by a successor Purchaser Contract Agent required by Section 7.10
shall not have been delivered to the Purchase Contract Agent within 30 days
after such removal, the Purchase Contract Agent being removed may petition,
at the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Purchase Contract Agent.
(d) If at any time:
(1) the Purchase Contract Agent shall cease to be eligible
under Section 7.8 and shall fail to resign after written request
therefor by the Company or by any such Holder; or
(2) the Purchase Contract Agent shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a receiver of the
Purchase Contract Agent or of its property shall be appointed or any
public officer shall take charge or control of the Purchase Contract
Agent or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Purchase Contract Agent, or (ii) any Holder who has been a bona fide Holder
of a PIES for at least six months may, on behalf of himself and all others
similarly situated, petition, at the expense of the Company, any court of
competent jurisdiction for the removal of the Purchase Contract Agent and the
appointment of a successor Purchase Contract Agent.
(e) If the Purchase Contract Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Purchase Contract Agent for any cause, the Company, by a Board Resolution,
shall promptly appoint a successor Purchase Contract Agent and shall comply
with the applicable requirements of Section 7.10. If no successor Purchase
Contract Agent shall have been so appointed by the Company and accepted
appointment in the manner required by Section 7.10, any Holder who has been a
bona fide Holder of a PIES for at least six months may, on behalf of itself
and all others similarly situated,
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petition, at the expense of the Company, any court of competent jurisdiction
for the appointment of a successor Purchase Contract Agent.
(f) The Company shall give, or shall cause such successor
Purchase Contract Agent to give, notice of each resignation and each removal
of the Purchase Contract Agent and each appointment of a successor Purchase
Contract Agent by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders as their names and addresses appear in the
applicable Register. Each notice shall include the name of the successor
Purchase Contract Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Purchase Contract Agent, every such successor Purchase Contract Agent so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Purchase Contract Agent an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Purchase Contract
Agent shall become effective and such successor Purchase Contract Agent,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, agencies and duties of the retiring Purchase Contract Agent;
but, on the request of the Company or the successor Purchase Contract Agent,
such retiring Purchase Contract Agent shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Purchase
Contract Agent all the rights, powers and trusts of the retiring Purchase
Contract Agent and shall duly assign, transfer and deliver to such successor
Purchase Contract Agent all property and money held by such retiring Purchase
Contract Agent hereunder.
(b) Upon request of any such successor Purchase Contract Agent,
the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Purchase Contract Agent
all such rights, powers and agencies referred to in paragraph (a) of this
Section.
(c) No successor Purchase Contract Agent shall accept its
appointment unless at the time of such acceptance such successor Purchase
Contract Agent shall be eligible under this Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Purchase Contract Agent may be merged
or converted or with which it may be consolidated, or any Person resulting
from any merger, conversion or consolidation to which the Purchase Contract
Agent shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of the Purchase Contract Agent, shall be the
successor of the Purchase Contract Agent hereunder, provided such Person
shall be otherwise 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 Certificates shall have been authenticated and executed
on behalf of the Holders, but not delivered, by the Purchase Contract Agent
then in office, any successor to such Purchase Contract Agent may adopt such
authentication and execution and deliver the Certificates so authenticated
and executed with the same effect as if such successor Purchase Contract
Agent had itself authenticated and executed such PIES.
65
Section 7.12. Preservation of Information; Communications to Holders.
(a) The Purchase Contract Agent shall preserve, in as current a
form as is reasonably practicable, the names and addresses of Holders
received by the Purchase Contract Agent in its capacity as Registrar.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Purchase Contract Agent, and furnish to
the Purchase Contract Agent reasonable proof that each such applicant has
owned a PIES for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders with respect to their rights under this
Agreement or under the PIES and is by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Purchase
Contract Agent shall mail to all the Holders copies of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Purchase Contract Agent of the materials to
be mailed and of payment, or provision for the payment, of the reasonable
expenses of such mailing.
Section 7.13. No Obligations of Purchase Contract Agent.
Except to the extent otherwise expressly provided in this
Agreement, the Purchase Contract Agent assumes no obligations and shall not
be subject to any liability under this Agreement, the Pledge Agreement or any
Purchase Contract in respect of the obligations of the Holder of any PIES
thereunder. The Company agrees, and each Holder of a Certificate, by his
acceptance thereof, shall be deemed to have agreed, that the Purchase
Contract Agent's execution of the Certificates on behalf of the Holders shall
be solely as agent and attorney-in-fact for the Holders, and that the
Purchase Contract Agent shall have no obligation to perform such Purchase
Contracts on behalf of the Holders, except to the extent expressly provided
in Article Five hereof. Anything contained in this Agreement to the contrary
notwithstanding, in no event shall the Purchase Contract Agent or its
officers, employees or agents be liable for indirect, special, punitive, or
consequential loss or damage of any kind whatsoever, including, but not
limited to, lost profits, whether or not the likelihood of such loss or
damage was known to the Purchase Contract Agent and regardless of the form of
action.
Section 7.14. Tax Compliance.
(a) 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 PIES or
(ii) the issuance, delivery, holding, transfer, redemption or exercise of
rights under the PIES. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of
all amounts required to be withheld to the appropriate taxing authority or
its designated agent.
(b) The Purchase Contract Agent shall comply in accordance with
the terms hereof with any reasonable written direction received from the
Company with respect to the execution or certification of any required
documentation and the application of such requirements to particular payments
or Holders or in other particular circumstances, and may for
66
purposes of this Agreement conclusively rely on any such direction in
accordance with the provisions of Section 7.1(a)(2) hereof.
(c) The Purchase Contract Agent shall maintain all appropriate
records documenting compliance with such requirements, and shall make such
records available, on written request, to the Company or its authorized
representative within a reasonable period of time after receipt of such
request.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
Section 8.1. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Purchase Contract 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 Purchase
Contract Agent, to:
(1) 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 Certificates;
(2) evidence and provide for the acceptance of appointment
hereunder by a successor Purchase Contract Agent;
(3) 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;
(4) make provision with respect to the rights of Holders
pursuant to the requirements of Section 5.5(b); or
(5) except as provided for in Section 5.5, cure any ambiguity,
correct or supplement any provisions herein which may be inconsistent
with any other provisions herein, or make any other provisions with
respect to such matters or questions arising under this Agreement,
PROVIDED such action shall not adversely affect the interests of the
Holders.
Section 8.2. Supplemental Agreements With Consent of Holders.
With the consent of the Holders of not less than a majority of
the outstanding Purchase Contracts voting together as one class, by Act of
said Holders delivered to the Company and the Purchase Contract Agent, the
Company, when authorized by a Board Resolution, and the Purchase Contract
Agent may enter into an agreement or agreements supplemental hereto for the
purpose of modifying in any manner the terms of the Purchase Contracts, or
the provisions of this Agreement or the rights of the Holders in respect of
the PIES; PROVIDED, HOWEVER, that, except as contemplated herein, no such
supplemental agreement shall,
67
without the unanimous consent of the Holders of each outstanding Purchase
Contract affected thereby, other than as expressly contemplated by this
Agreement,
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to be
Pledged to secure a Holder's obligations under the Purchase Contract,
impair the right of the Holder of any Purchase Contract to receive
distributions on the related Collateral or otherwise adversely affect
the Holder's rights in or to such Collateral;
(3) reduce Purchase Contract Adjustment Payments or change any
place where, or the coin or currency in which, Purchase Contract
Adjustment Payments are payable;
(4) impair the right to institute suit for the enforcement of
any Purchase Contract;
(5) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares
of Common Stock upon settlement of any Purchase Contract, change the
Purchase Contract Settlement Date or otherwise adversely affect the
Holder's rights under any Purchase Contract; or
(6) reduce the percentage of the outstanding Purchase Contracts
the consent of whose Holders is required for any such supplemental
agreement,
PROVIDED that, if any amendment or proposal referred to above would adversely
affect only the Corporate PIES or the Treasury PIES after securities of such
class are created and remain Outstanding, then only the affected class of
Holder as of the record date, if any, for the Holders entitled to vote
thereon or consent thereto will be entitled to vote or consent on such
amendment or proposal, and such amendment or proposal shall not be effective
except with the vote or consent of Holders of not less than a majority of
such class; and PROVIDED, FURTHER, that the unanimous consent of the Holders
of each outstanding Purchase Contract of the related Corporate PIES or
Treasury PIES, as the case may be, shall be required to approve any amendment
or proposal specified in clauses (1) through (6) above.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
agreement, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 8.3. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by,
any supplemental agreement permitted by this Article or the modifications
thereby of the agencies created by this Agreement, the Purchase Contract
Agent shall be entitled to receive, and (subject to Section 7.1) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental agreement is authorized or permitted by this
Agreement. The Purchase Contract Agent may, but shall not be obligated to,
enter into any such supplemental agreement which
68
affects the Purchase Contract Agent's own rights, duties or immunities under
this Agreement or otherwise.
Section 8.4. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this
Article, this Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Agreement for all purposes;
and every Holder of Certificates theretofore or thereafter authenticated,
executed on behalf of the Holders and delivered hereunder, shall be bound
thereby.
Section 8.5. Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders
and delivered after the execution of any supplemental agreement pursuant to
this Article may, and shall if required by the Purchase Contract Agent, bear
a notation in form approved by the Purchase Contract Agent as to any matter
provided for in such supplemental agreement. If the Company shall so
determine, new Certificates so modified as to conform, in the opinion of the
Purchase Contract Agent and the Company, to any such supplemental agreement
may be prepared and executed by the Company and authenticated, executed on
behalf of the Holders and delivered by the Purchase Contract Agent in
exchange for Outstanding Certificates.
ARTICLE IX
MERGER, CONSOLIDATION SALE OR CONVEYANCE
Section 9.1. When Company May Merge, Etc.
The Company shall not consolidate with or merge into, or sell,
lease (for a term extending beyond the last stated maturity of the PIES and
the Senior Notes then Outstanding) or convey all or substantially all of its
assets to, any Person or group of Affiliated Persons in one transaction or a
series of related transactions, unless the Company shall be the continuing
corporation, or the successor or transferee Person expressly assumes by one
or more supplemental agreements, in form satisfactory to the Purchase
Contract Agent, all the obligations of the Company with respect to the PIES
and this Agreement, and the Company or the successor or transferee Person, as
the case may be, (i) shall be a Corporation organized and existing under the
laws of one of the states in the United States and (ii) shall not,
immediately after such consolidation or merger or sale, lease or conveyance,
be in default in the performance or any covenant or condition hereunder or
under any of the PIES. The Company shall deliver to the Purchase Contract
Agent an Officers' Certificate (as defined in the Original Indenture) and an
Opinion of Counsel (as defined in the Original Indenture), each stating that
such consolidation, merger sale, lease or conveyance and such supplemental
agreement comply with this Agreement and that all conditions precedent to the
consummation of any such consolidation, or merger, or any sale, lease or
conveyance have been met.
69
Section 9.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease or
conveyance of all or substantially all of the assets of the Company in
accordance with Section 9.1, the successor corporation or the transferee
corporation formed by such consolidation or into which the Company is merged
or to which such transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Agreement
with the same effect as if such successor corporation had been named as the
Company herein.
Such successor or transferee Person thereupon may cause to be
signed, and may issue either in its own name or in the name of
Sierra Pacific
Resources, any or all of the Certificates evidencing PIES issuable hereunder
which theretofore shall not have been signed by the Company and delivered to
the Purchase Contract Agent; and, upon the order of such successor or such
transferee Person, instead of the Company, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Purchase
Contract Agent shall authenticate and execute on behalf of the Holders and
deliver any Certificates which previously shall have been signed and
delivered by the officers of the Company to the Purchase Contract Agent for
authentication and execution, and any Certificate evidencing PIES which such
successor corporation or transferee corporation thereafter shall cause to be
signed and delivered to the Purchase Contract Agent for that purpose. All the
Certificates issued shall in all respects have the same legal rank and
benefit under this Agreement as the Certificates theretofore or thereafter
issued in accordance with the terms of this Agreement as though all of such
Certificates had been issued at the date of the execution hereof.
In case of any such merger, consolidation, share exchange,
sale, assignment, transfer, lease or conveyance such change in phraseology
and form (but not in substance) may be made in the Certificates evidencing
PIES thereafter to be issued as may be appropriate.
Section 9.3. Limitation.
Nothing in this Agreement shall be deemed to prevent or
restrict; (a) any consolidation or merger after the consummation of which the
Company would be the surviving or resulting entity or any conveyance or other
transfer or lease of any part of the properties of the Company which does not
constitute the entirety, or substantially the entirety, thereof; or (b) the
approval by the Company of, or the consent by the Company to, any
consolidation or merger to which any Restricted Subsidiary (as defined in the
Original Indenture) or any other subsidiary or affiliate of the Company may
be a party or any conveyance, transfer or lease by any Subsidiary (as defined
in the Original Indenture) or any such other subsidiary or affiliate of any
of its assets.
ARTICLE X
COVENANTS
Section 10.1. Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders
from time to time of the PIES that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
70
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City
of New York an office or agency where Certificates may be:
(1) presented or surrendered for acquisition of shares of
Common Stock upon settlement of the Purchase Contracts on the Purchase
Contract Settlement Date or Early Settlement and for transfer of
Collateral upon occurrence of a Termination Event;
(2) surrendered for registration of transfer or exchange, for a
Collateral Substitution or re-establishment of a Corporate PIES; and
and where notices and demands to or upon the Company in respect of the PIES
and this Agreement may be served. The Company will give prompt written notice
to the Purchase Contract Agent of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Purchase Contract Agent with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Company hereby appoints the Purchase Contract Agent as its
agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where Certificates may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Purchase Contract Agent of
any such designation or rescission and of any change in the location of any
such other office or agency. The Company hereby designates as the place of
payment for the PIES the Corporate Trust Office and appoints the Purchase
Contract Agent at its Corporate Trust Office as paying agent in such city.
Section 10.3. Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase Contract
Settlement Date reserve and keep available, free from preemptive rights, out
of its authorized but unissued shares of Common Stock the maximum number of
shares of Common Stock issuable against tender of payment in respect of all
Purchase Contracts constituting a part of the PIES evidenced by Outstanding
Certificates.
Section 10.4. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which
will be issued against tender of payment in respect of Purchase Contracts
constituting a part of the Outstanding PIES will, upon issuance as
contemplated herein, be duly authorized, validly issued, fully paid and
nonassessable.
Section 10.5. Statements of Officers of the Company as to Default.
The Company will deliver to the Purchase Contract Agent, within
120 days after the end of each fiscal year of the Company (which as of the
date hereof is December 31) ending
71
after the date hereof, an Officers' Certificate (one of the signers of which
shall be the principal executive officer, principal financial officer,
treasurer or principal accounting officer of the Company), stating whether or
not to the best knowledge of the signers thereof the Company is in default in
the performance and observance of any of the terms, provisions and conditions
hereof, and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
Section 10.6. ERISA.
Each Holder from time to time of the Corporate PIES which is a
Plan hereby represents that its acquisition of the Corporate PIES and the
holding of the same satisfies the applicable fiduciary requirements of ERISA
and that it is entitled to exemption relief from the prohibited transaction
provisions of ERISA and the Code in accordance with one or more prohibited
transaction exemptions or otherwise will not result in a nonexempt prohibited
transaction.
72
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
SIERRA PACIFIC RESOURCES
By: _______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Purchase Contract Agent
By: _______________________________
Name:
Title:
EXHIBIT A
FORM OF FACE OF CORPORATE PIES CERTIFICATE
[This certificate is a global certificate within the meaning of
the
Purchase Contract Agreement hereinafter referred to and is registered in
the name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This certificate is
exchangeable for certificates registered in the name of a person other than
the Depositary or its nominee only in the limited circumstances described in
the
Purchase Contract Agreement and no transfer of this certificate (other
than a transfer of this certificate as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this certificate is presented by an authorized
representative of the Depositary to
Sierra Pacific Resources or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as is requested by an
authorized representative of the Depositary (and any payment hereon is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.](1)
NO.: __ CUSIP NO. 826428 20 3
NUMBER OF CORPORATE PIES: __________
SIERRA PACIFIC RESOURCES
CORPORATE PIES
This Corporate PIES Certificate certifies that [Cede & Co.](2),
or registered assigns, is the registered Holder of the number of Corporate
PIES set forth above [or such other number as set forth in the Schedule of
Increases and Decreases in Global Certificate attached hereto](3). Each
Corporate PIES consists of (i) the rights and obligations of the Holder under
one Purchase Contract with
Sierra Pacific Resources, a Nevada corporation
(the "Company"), and (ii) either (a) the beneficial ownership by the Holder of
one 7.93% Senior Note due 2007 (the "Senior Note") of the Company, having a
principal amount of $50, subject to the Pledge of such Senior Note by such
Holder pursuant to the Pledge Agreement or (b) if the Corporate PIES has been
remarketed by the Remarketing Agent pursuant to the Remarketing Agreement,
the Treasury
---------------------------
1 Insert in Global Certificates only.
2 Insert in Global Certificates only.
3 Insert in Global Certificates only.
Portfolio Interest, subject to the Pledge of such Treasury Portfolio Interest
by such Holder pursuant to the Pledge Agreement.
Pursuant to the Pledge Agreement, the Senior Note or the
Treasury Portfolio Interest, as the case may be, constituting part of each
Corporate PIES evidenced hereby has been pledged to the Collateral Agent, for
the benefit of the Company, to secure the obligations of the Holder under the
Purchase Contract comprising a portion of such Corporate PIES.
Each Purchase Contract evidenced hereby obligates the Holder of
this Corporate PIES Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date, at a price equal to $50 in cash (the
"Stated Amount"), a number of shares of Common Stock equal to the Settlement
Rate then in effect, unless on or prior to the Purchase Contract Settlement
Date there shall have occurred a Termination Event, an Early Settlement or a
Merger Early Settlement with respect to the Corporate PIES 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
(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 Purchase Contract Settlement Date by application of payment received
in respect of the principal amount with respect to each Pledged Senior Note,
pursuant to the Remarketing, or with respect to the Pledged Treasury
Portfolio Interest, as the case may be, in each case, pledged pursuant to the
Pledge Agreement to secure the obligations under such Purchase Contract of
the Holder of the Corporate PIES of which such Purchase Contract is a part.
The Company shall pay on February 15, May 15, August 15 and
November 15 of each year (each, a "Payment Date"), commencing February 15,
2002, in respect of each Purchase Contract forming part of a Corporate PIES
evidenced hereby, an amount (the "Purchase Contract Adjustment Payments")
equal to (a) if a Reset Transaction has not occurred, 1.07% per annum of the
Stated Amount or (b) following the occurrence of a Reset Transaction, if at
all, the Adjusted Purchase Contract Adjustment Payment Rate related to such
Reset Transaction until any such succeeding Reset Transaction shall occur, in
either case, computed on the basis of (i) for any full quarterly period, a
360-day year of twelve 30-day months, (ii) for any period shorter than a full
quarterly period, a 30-day month and (iii) for periods less than a month, the
actual number of days elapsed per 30-day period. Such Purchase Contract
Adjustment Payments shall be payable to the Person in whose name this
Corporate PIES Certificate (or a Predecessor Corporate PIES Certificate) is
registered at the close of business on the Record Date for such Payment Date.
Interest on the Senior Notes, the beneficial ownership of which
is evidenced hereby until the later of the Remarketing Settlement Date and
the Purchase Contract Settlement Date, as applicable, is payable quarterly in
arrears on each Payment Date. Such interest payments shall be payable to the
Person in whose name this Corporate PIES Certificate (or a Predecessor
Corporate PIES Certificate) is registered at the close of business on the
Record Date for such Payment Date.
Purchase Contract Adjustment Payments and interest payments on
the Senior Notes will be payable at the office of the Purchase Contract Agent
in The City of New York or, at the option of the Company, by wire transfer or
by check mailed to the address of the Person entitled thereto as such address
appears on the Corporate PIES Register.
A-2
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 Purchase Contract Agent by manual signature, this Corporate
PIES Certificate shall not be entitled to any benefit under the
Purchase
Contract Agreement or the Pledge Agreement or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
SIERRA PACIFIC RESOURCES
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase Contracts
evidenced hereby)
By: THE BANK OF NEW YORK,
not individually but solely as
Attorney-in-Fact of such Holder
By:____________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION OF PURCHASE CONTRACT AGENT
This is one of the Corporate PIES Certificates referred to in
the within-mentioned
Purchase Contract Agreement.
Dated: By: THE BANK OF NEW YORK,
as Purchase Contract Agent
By:____________________________
Authorized Signatory
A-3
(FORM OF REVERSE OF CORPORATE PIES CERTIFICATE)
1. PURCHASE CONTRACT AGREEMENT; PURCHASE CONTRACTS.
Each Purchase Contract evidenced hereby is being issued under
and governed by a Purchase Contract Agreement, dated as of November 16, 2001
(as may be amended, modified or supplemented from time to time pursuant to
the terms thereof, the "Purchase Contract Agreement"), between the Company
and The Bank of New York, as Purchase Contract Agent (including its
successors thereunder, the "Purchase Contract Agent"), to which Purchase
Contract Agreement and amended, modified or supplemental agreements thereto
reference is hereby made for a description of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the
Purchase Contract Agent, the Company, and the Holders and of the terms upon
which the Corporate PIES Certificates are, and are to be, executed and
delivered. The terms of this Corporate PIES Certificate include those stated
herein and in the Purchase Contract Agreement. To the extent permitted by
applicable law, in the event of an inconsistency between this Corporate PIES
Certificate and the Purchase Contract Agreement, the terms of the Purchase
Contract Agreement shall control. Capitalized terms used but not defined
herein have the meanings ascribed thereto in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby obligates the Holder of
this Corporate PIES Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price"), a number of shares of Common Stock equal to the Settlement
Rate then in effect unless on or prior to the Purchase Contract Settlement
Date, there shall have occurred a Termination Event, an Early Settlement or a
Merger Early Settlement with respect to the PIES of which such Purchase
Contract is a part. The "Settlement Rate" is equal to:
(1) if the Applicable Closing Price (as defined below) per
share is equal to or greater than $16.62 (the "Threshold Appreciation
Price"), 3.0084 shares of Common Stock per Purchase Contract;
(2) if the Applicable Closing Price per share is less than the
Threshold Appreciation Price but greater than $13.85 (the "Reference
Price"), the number of shares of Common Stock determined by dividing the
Stated Amount by the Applicable Closing Price; and
(3) if the Applicable Closing Price per share is less than or
equal to the Reference Price, 3.6101 shares of Common Stock per Purchase
Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement.
No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, as provided in the Purchase Contract
Agreement.
In accordance with the terms of the Purchase Contract
Agreement, the Holder of this Corporate PIES Certificate shall pay the
Purchase Price for the shares of Common Stock purchased pursuant to each
Purchase Contract evidenced hereby by (i) effecting a Cash Settlement, an
Early Settlement or Merger Early Settlement or (ii) application of payments
A-4
received in respect of the Pledged Treasury Portfolio Interest acquired from
the proceeds of a Remarketing of the related Pledged Senior Notes relating to
the Corporate PIES represented by this Corporate PIES Certificate. As
provided in the Purchase Contract Agreement, upon the occurrence of a Failed
Remarketing, the Collateral Agent shall exercise, for the benefit of the
Company, its rights as a secured creditor with respect to the Pledged Senior
Notes related to this Corporate PIES Certificate and, subject to applicable
law, may (i) retain such Pledged Senior Notes in full satisfaction of the
Holders' obligations under the Purchase Contracts or (ii) sell such Pledged
Senior Notes in one or more public or private sales, the proceeds, if any, of
such sale to constitute full satisfaction of the Holders' obligations under
the Purchase Contracts. With respect to such Pledged Senior Notes which are
the subject of a Failed Remarketing, any accrued and unpaid interest payments
on such Pledged Senior Notes will become payable by the Company to the Holder
of this Corporate PIES Certificate in the manner provided for in the Purchase
Contract Agreement.
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 of the aggregate
purchase price for the shares of Common Stock to be purchased thereunder in
the manner set forth in the Purchase Contract Agreement which payment, in the
case of a Failed Remarketing shall occur by the resale of Pledged Senior
Notes or foreclosure on and retention of such Pledged Senior Notes pursuant
to the Purchase Contract Agreement and the Pledge Agreement.
2. TERMINATION EVENT; EARLY SETTLEMENT; MERGER EARLY SETTLEMENT.
The Purchase Contracts and all 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, Purchase
Contract Adjustment Payments, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Purchase
Contract Agent or the Company, if, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon the occurrence
of a Termination Event, the Company shall promptly but in no event later than
two Business Days thereafter give written notice to the Purchase Contract
Agent, the Collateral Agent and the Holders, at their addresses as they
appear in the Corporate PIES Register. Upon the occurrence of a Termination
Event, the Collateral Agent shall release the Senior Notes or Pledged
Treasury Portfolio Interest, as the case may be, from the Pledge in
accordance with the provisions of the Pledge Agreement. A Corporate PIES
shall thereafter represent the right to receive the Senior Note forming a
part of such Corporate PIES in accordance with the terms 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 relating to PIES 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
Corporate PIES Certificate, the Holder of this Corporate PIES Certificate shall
deliver this Corporate PIES Certificate to the Purchase Contract Agent at the
Corporate Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early set forth below duly completed and
accompanied by payment in the form of immediately available
A-5
funds payable to the order of the Company in an amount (the "Early Settlement
Amount") equal to:
(1) 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, PLUS
(2) if such delivery is made with respect to any Purchase
Contracts during the period from the close of business on any Record
Date for any Payment Date to the opening of business on such Payment
Date, an amount equal to the Purchase Contract Adjustment Payments
payable on such Payment Date with respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related PIES,
the Pledged Senior Notes relating to such PIES 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 Corporate PIES as to which Early Settlement is
effected equal to the Early Settlement Rate. The Early Settlement Rate shall
initially be equal to 3.0084 shares of Common Stock per Purchase Contract 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.
3. CREATION OF TREASURY PIES; RECREATION OF CORPORATE PIES.
A holder of a Corporate PIES may substitute for the Pledged
Senior Notes securing its obligation under the related Purchase Contract
Treasury Securities in an aggregate principal amount at maturity equal to the
aggregate principal amount of the Pledged Senior Notes in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement. From and
after such Collateral Substitution, the PIES for which such Pledged Treasury
Securities secures the Holder's obligation under the Purchase Contract shall
be referred to as a "Treasury PIES." A Holder may make such Collateral
Substitution only in integral multiples of 20 Corporate PIES for 20 Treasury
PIES. Such Collateral Substitution may cause the equivalent aggregate
principal amount of this Certificate to be increased or decreased; PROVIDED,
HOWEVER, this Corporate PIES Certificate shall not represent more than
6,900,000 Corporate PIES, or if in the form of a Global Certificate, such
other maximum amount as shall at the time be prescribed by the applicable
Depositary. All such adjustments to the equivalent aggregate principal amount
of this Corporate PIES Certificate if a Global Certificate shall be duly
recorded by placing an appropriate notation on the Schedule as may be
attached hereto.
A Holder of Treasury PIES may recreate Corporate PIES by
delivering to the Securities Intermediary Senior Notes with an aggregate
principal amount equal to the aggregate principal amount at maturity of the
Pledged Treasury Securities in exchange for the release of such Pledged
Treasury Securities in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement. Holders may make recreate Corporate PIES
only in integral multiples of 20 Corporate PIES.
A-6
4. REGISTERED FORM; DENOMINATION; REGISTRATION, TRANSFER AND
EXCHANGE.
The Corporate PIES Certificates are issuable only in registered
form and only in denominations of a single Corporate PIES and any integral
multiple thereof. The transfer of any Corporate PIES Certificate will be
registered and Corporate PIES Certificates may be exchanged as provided in
the Purchase Contract Agreement. The Corporate PIES Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents permitted by the Purchase Contract Agreement. No service charge
shall be required for any such registration of transfer or exchange, but the
Company and the Purchase Contract Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith. A Holder who elects to substitute a Treasury Security
for Senior Notes, thereby creating Treasury PIES, shall be responsible for
any fees or expenses payable in connection therewith. Except as provided in
the Purchase Contract Agreement, for so long as the Purchase Contract
relating to a Corporate PIES remains in effect, such Corporate PIES shall not
be separable into its constituent parts, and the rights and obligations of
the Holder of such Corporate PIES in respect of the Senior Note or Treasury
Portfolio Interest, as the case may be, and Purchase Contract constituting
such Corporate PIES may be transferred and exchanged only as a Corporate PIES.
Upon registration of transfer of this Corporate PIES
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
Purchase Contract 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 Corporate PIES Certificate.
The Company covenants and agrees, and the Holder, by its acceptance hereof,
likewise covenants and agrees, to be bound by the provisions of this
paragraph.
The Company, the Purchase Contract Agent and its Affiliates and
any agent of the Company or the Purchase Contract Agent may treat the Person
in whose name this Corporate PIES Certificate is registered as the owner of
the Corporate PIES evidenced hereby for the purpose of receiving payments of
interest payable quarterly on the Senior Notes or Treasury Portfolio Return,
as the case may be, receiving Purchase Contract Adjustment Payments,
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 Purchase Contract
Agent nor any such agent shall be affected by notice to the contrary.
5. PLACE AND METHOD OF PAYMENT.
The Company shall pay, on each Payment Date, the Purchase
Contract Adjustment Payments payable in respect of each Purchase Contract to
the Person in whose name the Corporate PIES Certificate evidencing such
Purchase Contract is registered at the close of business on the Record Date
for such Payment Date. Purchase Contract Adjustment Payments will be payable
at the office of the Purchase Contract Agent in The City of New York or, at
the option of the Company by wire transfer or by check mailed to the address
of the Person entitled thereto at such address as it appears on the Corporate
PIES Register.
A-7
6. AUTHORIZATION OF PURCHASE CONTRACT AGENT.
The Holder of this Corporate PIES Certificate, by its
acceptance hereof, authorizes the Purchase Contract Agent to enter into and
perform the related Purchase Contracts forming part of the Corporate PIES
evidenced hereby on its behalf as its attorney-in-fact, expressly withholds
any consent to the assumption (i.e., affirmance) of the Purchase Contracts by
the Company or its trustee in the event that the Company becomes the subject
of a case under the Bankruptcy Code, agrees to be bound by the terms and
provisions thereof, covenants and agrees to perform its obligations under
such Purchase Contracts, consents to the provisions of the Purchase Contract
Agreement, authorizes the Purchase Contract Agent to enter into and perform
the Purchase Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Senior Notes or Treasury
Portfolio Interest, as the case may be, relating to this Corporate PIES
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 the aggregate principal amount of the Pledged
Senior Notes or Pledged Treasury Portfolio Interest, as the case may be,
shall be paid on the Purchase Contract Settlement Date 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.
7. AMENDMENT.
The provisions of the Purchase Contract Agreement and this
Corporate PIES Certificate may be amended only as provided in the Purchase
Contract Agreement.
8. VOTING RIGHTS.
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. Upon settlement of the Purchase Contracts, the Holder will be
entitled to all of the rights of a holder of shares of Common Stock,
including, without limitation, the right to vote and receive dividends and
other payments and to consent and receive notice as a shareholder in respect
of the meetings of shareholders and for the election of directors of the
Company and for all other matters, and all other rights whatsoever as a
shareholder of the Company. Under the terms of the Pledge Agreement, the
Purchase Contract Agent will be entitled to exercise the voting and any other
consensual rights pertaining to the Pledged Senior Notes upon behalf of and
upon receipt of instructions from the beneficial owners of such Pledged
Senior Notes. Upon receipt of notice of any meeting at which holders of
Senior Notes are entitled to vote or upon the solicitation of consents,
waivers or proxies of holders of Senior Notes, the Purchase Contract Agent
shall, as soon as practicable thereafter, mail to the Corporate PIES Holders
a notice:
(1) containing such information as is contained in the notice
or solicitation;
(2) stating that each Corporate PIES Holder on the record date
set by the Purchase Contract Agent therefor (which, to the extent
possible, shall be the same date as the record date for determining the
holders of Senior Notes entitled to vote) shall be
A-8
entitled to instruct the Purchase Contract Agent as to the exercise of
the voting rights pertaining to the Senior Notes constituting a part of
such Holder's Corporate PIES; and
(3) stating the manner in which such instructions may be given.
Upon the written request of the Corporate PIES Holders on such record date,
the Purchase Contract Agent shall endeavor insofar as practicable to vote or
cause to be voted, in accordance with the instructions set forth in such
requests, the maximum aggregate principal amount of Senior Notes as to which
any particular voting instructions are received. In the absence of specific
instructions from the Holder of a Corporate PIES, the Purchase Contract Agent
shall abstain from voting the Senior Notes evidenced by such Corporate PIES.
9. SEVERABILITY.
If any provision in this Corporate PIES and the Senior Notes is
invalid or unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, (i) the other provisions of Corporate PIES shall remain in
full force and effect in such jurisdiction and shall be liberally construed
in order to carry out the intentions of the parties hereto as nearly as may
be possible and (ii) the invalidity or unenforceability of any provision of
this Corporate PIES in any jurisdiction shall not in any way affect the
validity or enforceability of such provision in any other jurisdiction.
10. GOVERNING LAW.
THIS CORPORATE PIES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11. JURISDICTION; VENUE.
The Company hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York and of
any New York state court sitting in New York City for the purposes of all
legal proceedings arising out of or relating to the Indenture and the Senior
Notes or the transactions contemplated hereby. The Company hereto irrevocably
waives, to the fullest extent permitted by applicable law, any objection
which they may now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
12. COPIES OF PURCHASE CONTRACT AGREEMENT.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Purchase Contract Agent at its address set
forth in Section 1.5 of the Purchase Contract Agreement.
A-9
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - As tenants in common
TEN ENT - As tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - (cust) Custodian (minor) ____________________
Under Uniform Gifts to Minors Act of ______________
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-----------------------------------------------------------------------------
(INSERT NAME OF ASSIGNEE)
-----------------------------------------------------------------------------
(INSERT SOCIAL SECURITY OR TAXPAYER I.D.
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE)
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
(INSERT ADDRESS INCLUDING ZIP CODE OF ASSIGNEE)
the within Corporate PIES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing _____________________________________
___________________________________________________ attorney to transfer said
Corporate PIES Certificates on the books of Sierra Pacific Resources with full
power of substitution in the premises.
Dated: ___________________ ______________________________________
Signature
NOTICE: The signature to this
assignment must correspond with
the name as it appears upon the
face of the within Corporate PIES
Certificates in every particular,
without alteration or enlargement
or any change whatsoever.
Signature Guarantee: ___________________________________
A-10
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of
Common Stock deliverable upon settlement on the Purchase Contract Settlement
Date of the Purchase Contracts relating to the number of Corporate PIES
evidenced by this Corporate PIES Certificate be registered in the name of,
and delivered, together with a check in payment for any fractional share, to
the undersigned at the address indicated below unless a different name and
address have been indicated below. If shares are to be registered in the name
of a Person other than the undersigned, the undersigned agrees to pay any
transfer tax payable incident thereto.
Dated: __________________ ________________________________
Signature
Signature Guarantee: ___________
(if assigned to another person)
REGISTERED HOLDER
Please print name and address of Registered Holder:
------------------------------------------------------------------------------
(INSERT NAME)
------------------------------------------------------------------------------
(INSERT ADDRESS)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER, IF ANY)
-------------------------------------
If shares are to be registered in the name of and delivered to a Person
other than the Holder, please (i) print such Person's name and address and
(ii) provide a guarantee of your signature:
-------------------------------------------------------------------------------
(INSERT NAME)
-------------------------------------------------------------------------------
(INSERT ADDRESS)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER, IF ANY)
A-11
ELECTION TO SETTLE EARLY
The undersigned Holder of this Corporate PIES Certificate hereby
irrevocably exercises the option to effect [Early Settlement]
[Merger Early Settlement] in accordance with the terms of the Purchase
Contract Agreement with respect to the Purchase Contracts relating to the
number of Corporate PIES evidenced by this Corporate PIES Certificate
specified below. The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon such [Early Settlement]
[Merger Early Settlement] be registered in the name of, and delivered,
together with a check in payment for any fractional share and any Corporate
PIES Certificate representing any Corporate PIES evidenced hereby as to which
[Early Settlement][Merger 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 Senior Notes
deliverable upon such [Early Settlement][Merger 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 agrees to pay any transfer tax payable incident
thereto.
----------------------------------
Signature
Dated:________________________
Signature Guarantee:________________________
Number of PIES evidenced hereby as to which [Early Settlement]
[Merger Early Settlement] of the related Purchase Contracts is being elected:
REGISTERED HOLDER
Please print name and address of Registered Holder:
------------------------------------------------------------------------------
(INSERT NAME)
------------------------------------------------------------------------------
(INSERT ADDRESS)
------------------------------------------------------------------------------
If shares of Common Stock or Corporate PIES Certificates are to be registered in
the name of and delivered to, and Pledged Senior Notes are to be transferred to,
a Person other than the Holder, please print such Person's name and address:
-------------------------------------------------------------------------------
(INSERT NAME)
-------------------------------------------------------------------------------
(INSERT ADDRESS)
-------------------------------------------------------------------------------
(INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER, IF ANY)
Transfer Instructions for Pledged Senior Notes Transferable Upon
[Early Settlement][Merger Early Settlement]:
-------------------------------------------------------------------------------
A-12
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have
been made:
-------------------- ------------------------ ------------------------ -------------------------- ------------------------
Number of Corporate PIES
Amount of decrease in Amount of increase in evidenced by this Signature of
Number of Corporate Number of Corporate Global Certificate authorized signatory
PIES evidenced by the PIES evidenced by the following such of Purchase Contract
Date Global Certificate Global Certificate decrease or increase Agent
-------------------- ------------------------ ------------------------ -------------------------- ------------------------
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A-13
EXHIBIT B
FORM OF FACE OF TREASURY PIES CERTIFICATE
[This certificate is a global certificate within the meaning
of the Purchase Contract Agreement hereinafter referred to and is registered in
the name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This certificate is exchangeable
for certificates registered in the name of a person other than the Depositary or
its nominee only in the limited circumstances described in the Purchase Contract
Agreement and no transfer of this certificate (other than a transfer of this
certificate as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this certificate is presented by an authorized representative
of the Depositary to Sierra Pacific Resources or its agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or such other name as is requested by an authorized
representative of the Depositary (and any payment hereon is made to Cede &
Co. or to such other entity as is requested by an authorized representative
of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.](1)
NO.: __ CUSIP NO. 826428 30 2
NUMBER OF TREASURY PIES: __________
SIERRA PACIFIC RESOURCES
TREASURY PIES
This Treasury PIES Certificate certifies that [Cede & Co.](2), or
registered assigns, is the registered Holder of the number of Treasury PIES
set forth above [or such other number as set forth in the Schedule of
Increases and Decreases in Global Certificate attached hereto](3). Each
Treasury PIES consists of (i) the rights and obligations of the Holder under
one Purchase Contract with Sierra Pacific Resources, a Nevada corporation
(the "Company") and (ii) a 1/20 undivided beneficial ownership interest of a
Treasury Security having a principal amount at maturity equal to $1,000 and
maturing on or prior to November 15, 2005.
Pursuant to the Pledge Agreement, the Treasury Securities constituting
part of each Treasury PIES evidenced hereby have been pledged to the
Collateral Agent, for the benefit of the Company, to secure the obligations
of the Holder under the Purchase Contract comprising a portion of such
Treasury PIES.
--------
1 Insert in Global Certificates only.
2 Insert in Global Certificates only.
3 Insert in Global Certificates only.
Each Purchase Contract evidenced hereby obligates the Holder
of this Treasury PIES Certificate to purchase, and the Company, to sell, on the
Purchase Contract Settlement Date, at a price equal to $50 in cash (the "Stated
Amount"), a number of shares of Common Stock equal to the Settlement Rate then
in effect, unless on or prior to the Purchase Contract Settlement Date there
shall have occurred a Termination Event or an Early Settlement or Merger Early
Settlement with respect to the Treasury PIES 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 (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 Purchase Contract
Settlement Date by application of the proceeds from the Treasury Securities at
maturity pledged pursuant to the Pledge Agreement to secure the obligations
under such Purchase Contract of the Holder of the Treasury PIES of which such
Purchase Contract is a part.
The Company shall pay on February 15, May 15, August 15 and
November 15 of each year (each, a "Payment Date"), commencing February 15, 2002,
in respect of each Purchase Contract forming part of Treasury PIES evidenced
hereby, an amount (the "Purchase Contract Adjustment Payments") equal to (a) if
a Reset Transaction has not occurred, 1.07% per annum of the Stated Amount or
(b) following the occurrence of a Reset Transaction, if at all, the Adjusted
Purchase Contract Adjustment Payment Rate related to such Reset Transaction
until any such succeeding Reset Transaction shall occur, in either case,
computed on the basis of (i) for any full quarterly period, a 360-day year of
twelve 30-day months, (ii) for any period shorter than a full quarterly period,
a 30-day month and (iii) for periods less than a month, the actual number of
days elapsed per 30-day period). Such Purchase Contract Adjustment Payments
shall be payable to the Person in whose name this Treasury PIES Certificate (or
a Predecessor Treasury PIES Certificate) is registered at the close of business
on the Record Date for such Payment Date.
Purchase Contract Adjustment Payments will be payable at the
office of the Purchase Contract Agent in The City of New York or, at the option
of the Company, by wire transfer or by check mailed to the address of the Person
entitled thereto as such address appears on the Treasury or PIES 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 Purchase Contract Agent by manual signature, this Treasury PIES
Certificate shall not be entitled to any benefit under the Purchase Contract
Agreement or the Pledge Agreement or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed.
SIERRA PACIFIC RESOURCES
By: ______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase
Contracts evidenced hereby)
By: THE BANK OF NEW YORK,
not individually but solely
as Attorney-in-Fact of such
Holder
By: _________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION OF PURCHASE CONTRACT AGENT
This is one of the Treasury PIES Certificates referred to in
the within-mentioned Purchase Contract Agreement.
Dated: By: THE BANK OF NEW YORK,
as Purchase Contract Agent
By:__________________________
Authorized Officer
B-3
(FORM OF REVERSE OF TREASURY PIES CERTIFICATE)
1. PURCHASE CONTRACT AGREEMENT; PURCHASE CONTRACTS.
Each Purchase Contract evidenced hereby is being issued under and
governed by a Purchase Contract Agreement, dated as of November 16, 2001 (as
may be amended, modified or supplemented from time to time pursuant to the
terms thereof, the "Purchase Contract Agreement") between the Company and The
Bank of New York, as Purchase Contract Agent (including its successors
thereunder, the "Purchase Contract Agent"), to which the 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 Purchase Contract Agent, the Company
and the Holders and of the terms upon which the Treasury PIES Certificates
are, and are to be, executed and delivered. The terms of this Treasury PIES
Certificate include those stated herein and in the Purchase Contract
Agreement. To the extent permitted by applicable law, in the event of an
inconsistency between this Treasury PIES Certificate and the Purchase
Contract Agreement, the terms of the Purchase Contract Agreement shall
control. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury PIES Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price") a number of shares of Common Stock equal to the Settlement
Rate then in effect unless on or prior to the Purchase Contract Settlement
Date, there shall have occurred a Termination Event, an Early Settlement or a
Merger Early Settlement with respect to the PIES of which such Purchase
Contract is a part. The "Settlement Rate" is equal to:
(1) if the Applicable Closing Price (as defined below) per share is
equal to or greater than $16.62 (the "Threshold Appreciation Price"),
3.0084 shares of Common Stock per Purchase Contract;
(2) if the Applicable Closing Price per share is less than the
Threshold Appreciation Price but greater than $13.85 (the "Reference
Price"), the number of shares of Common Stock determined by dividing
the Stated Amount by the Applicable Closing Price; and
(3) if the Applicable Closing Price per share is less than or
equal to the Reference Price, then 3.6101 shares of Common Stock per
Purchase Contract; in each case subject to adjustment as provided in
the Purchase Contract Agreement.
No fractional shares of Common Stock will be issued upon settlement of
Purchase Contracts, as provided in the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Treasury PIES Certificate shall pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby by (i) effecting a Cash Settlement, an Early Settlement or Merger
Early Settlement or (ii) application of payments
B-4
received in respect of the Pledged Treasury Securities relating to the
Treasury PIES represented by this Treasury PIES Certificate.
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 of the aggregate purchase price
for the shares of Common Stock to be purchased thereunder in the manner
herein set forth in the Purchase Contract Agreement.
2. TERMINATION EVENT; EARLY SETTLEMENT; MERGER EARLY SETTLEMENT.
The Purchase Contracts and all 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, Purchase
Contract Adjustment Payments, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Purchase
Contract Agent or the Company, if, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon the occurrence
of a Termination Event, the Company shall promptly but in no event later than
two Business Days thereafter give written notice to the Purchase Contract
Agent, the Collateral Agent and the Holders, at their addresses as they
appear in the Treasury PIES Register. Upon the occurrence of a Termination
Event, the Collateral Agent shall release the Treasury Securities from the
Pledge in accordance with the provisions of the Pledge Agreement. A Treasury
PIES shall thereafter represent the right to receive the interest in the
Treasury Security forming a part of such Treasury PIES, in accordance with
the terms 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
relating to PIES 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 Treasury
PIES the Holder of this Treasury PIES Certificate shall deliver this Treasury
PIES Certificate to the Purchase Contract Agent at the Corporate Trust Office
duly endorsed for transfer to the Company or in blank with the form of
Election to Settle Early set forth below duly completed and accompanied by
payment in the form of immediately available funds payable to the order of
the Company in an amount (the "Early Settlement Amount") equal to:
(1) 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, PLUS
(2) if such delivery is made with respect to any Purchase Contracts
during the period from the close of business on any Record Date for any
Payment Date to the opening of business on such Payment Date, an amount
equal to the Purchase Contract Adjustment Payments payable on such
Payment Date with respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related PIES,
the Pledged Treasury Securities relating to such PIES 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 Treasury PIES as to which Early
Settlement is effected equal to the Early Settlement Rate. The Early
Settlement Rate shall initially be equal to 3.0084 shares of Common Stock per
Purchase Contract and shall be adjusted
B-5
in the same manner and at the same time as the Settlement Rate is adjusted as
provided in the Purchase Contract Agreement.
3. RECREATION OF CORPORATE PIES.
A Holder of Treasury PIES may recreate Corporate PIES by delivering to
the Collateral Agent Senior Notes with a principal amount equal to the
aggregate principal amount of maturity of the Pledged Treasury Securities in
exchange for the release of such Pledged Treasury Securities in accordance
with the terms of the Purchase Contract Agreement and the Pledge Agreement.
From and after such Collateral Substitution, the Holder's PIES shall be
referred to as a "Corporate PIES." Such Collateral Substitution may cause the
equivalent aggregate principal amount of this Certificate to be increased or
decreased; PROVIDED, HOWEVER, this Treasury PIES Certificate shall not
represent more than 6,900,000 Treasury PIES, or if in the form of a Global
Certificate, such other maximum amount as shall at the time be prescribed by
the applicable Depositary. All such adjustments to the equivalent aggregate
principal amount of this Treasury PIES Certificate if a Global Certificate,
shall be duly recorded, by placing an appropriate notation on the Schedule as
may be attached hereto. A Holder who elects to substitute Senior Notes for
Treasury Securities, thereby recreating Corporate PIES, shall be responsible
for any fees or expenses associated therewith.
4. REGISTERED FORM; DENOMINATIONS; REGISTRATION, TRANSFER AND EXCHANGE.
The Treasury PIES Certificates are issuable only in registered form and
only in denominations of a single Treasury PIES and any integral multiple
thereof. The transfer of any Treasury PIES Certificate will be registered and
Treasury PIES Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Treasury PIES Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company
and the Purchase Contract Agent may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith. A
Holder who elects to substitute Senior Notes for a Treasury Security, thereby
creating Corporate PIES, shall be responsible for any fees or expenses
payable in connection therewith. Except as provided in the Purchase Contract
Agreement, for so long as the Purchase Contract relating to a Treasury PIES
remains in effect, such Treasury PIES shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such
Treasury PIES in respect of the Treasury Security and the Purchase Contract
constituting such Treasury PIES may be transferred and exchanged only as a
Treasury PIES.
Upon registration of transfer of this Treasury PIES 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 Purchase Contract
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 Treasury PIES Certificate. The Company covenants
and agrees, and the Holder, by its acceptance hereof, likewise covenants and
agrees, to be bound by the provisions of this paragraph. The Company, the
Purchase Contract Agent and its Affiliates and any agent of the Company or
the Purchase Contract Agent may treat the Person in whose name this Treasury
PIES Certificate is registered as the owner of the Treasury PIES evidenced
hereby for the purpose of receiving payments of Purchase Contract Adjustment
Payments, performance of the
B-6
Purchase Contracts and for all other purposes whatsoever, whether or not any
payments in respect thereof be overdue and notwithstanding any notice to the
contrary, and neither the Company, the Purchase Contract Agent nor any such
agent shall be affected by notice to the contrary.]
5. PLACE AND METHOD OF PAYMENT.
The Company shall pay, on each Payment Date, the Purchase Contract
Adjustment Payments payable in respect of each Purchase Contract to the
Person in whose name the Treasury PIES Certificate evidencing such Purchase
Contract is registered at the close of business on the Record Date for such
Payment Date. Purchase Contract Adjustment Payments will be payable at the
office of the Purchase Contract Agent in The City of New York or, at the
option of the Company, by wire transfer or by check mailed to the address of
the Person entitled thereto at such address as it appears on the Treasury
PIES Register.
6. AUTHORIZATION OF PURCHASE CONTRACT AGENT.
The Holder of this Treasury PIES Certificate, by its acceptance hereof,
authorizes the Purchase Contract Agent to enter into and perform the related
Purchase Contracts forming part of the Treasury PIES evidenced hereby on its
behalf as its attorney-in-fact, expressly withholds any consent to the
assumption (i.e., affirmance) of the Purchase Contracts by the Company or its
trustee in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform its obligations under such Purchase
Contracts, consents to the provisions of the Purchase Contract Agreement,
authorizes the Purchase Contract Agent to enter into and perform the Purchase
Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Treasury Securities
relating to this Treasury PIES 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 the aggregate
principal amount of the Pledged Treasury Securities at maturity shall be paid
on the Purchase Contract Settlement Date 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.
7. AMENDMENT.
The provisions of the Purchase Contract Agreement and this Treasury
PIES Certificate may be amended only as provided in the Purchase Contract
Agreement.
8. VOTING RIGHTS.
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. Upon settlement of the Purchase Contracts, the Holder will be entitled
to all of the rights of a holder of shares of Common Stock, including,
without limitation, the right to vote and receive dividends and other
payments and to consent and receive notice as a shareholder in respect of the
meetings of shareholders and for the election of directors of the Company and
for all other matters, and all other rights whatsoever as a shareholder of
the Company.
B-7
9. SEVERABILITY.
If any provision in this Treasury PIES is invalid or unenforceable in
any jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions of Treasury PIES shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision of this Treasury PIES in any
jurisdiction shall not in any way affect the validity or enforceability of
such provision in any other jurisdiction.
10. GOVERNING LAW.
THIS TREASURY PIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
11. JURISDICTION; VENUE.
The Company hereby submits to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to the Indenture and the Senior Notes
or the transactions contemplated hereby. The Company hereto irrevocably
waives, to the fullest extent permitted by applicable law, any objection
which they may now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
12. COPIES OF PURCHASE CONTRACT AGREEMENT.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Purchase Contract Agent at its address set forth in
Section 1.5 of the Purchase Contract Agreement.
B-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - (cust) Custodian for ( minor) _____________
Under Uniform Gifts to Minors Act of ________
(State)
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
------------------------------------------------------------------------------
(INSERT NAME OF ASSIGNEE)
------------------------------------------------------------------------------
(INSERT SOCIAL SECURITY OR TAXPAYER I.D. OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
------------------------------------------------------------------------------
(INSERT ADDRESS INCLUDING ZIP CODE OF ASSIGNEE)
the within Treasury PIES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ___________________________________
attorney to transfer said Treasury PIES Certificates on the books of Sierra
Pacific Resources with full power of substitution in the premises.
Dated: ____________ _____________________________________
Signature
NOTICE: The signature to this
assignment must correspond with
the name as it appears upon the
face of the within Treasury PIES
Certificates in every particular,
without alteration or enlargement
or any change whatsoever.
Signature Guarantee: ___________________________________
B-9
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts relating to the number of Treasury
PIES evidenced by this Treasury PIES Certificate be registered in the name
of, and delivered, together with a check in payment for any fractional share,
to the undersigned at the address indicated below unless a different name and
address have been indicated below. If shares are to be registered in the name
of a Person other than the undersigned, the undersigned agrees to pay any
transfer tax payable incident thereto.
Dated: _______________________ __________________________________
Signature
Signature Guarantee: _____________
(if assigned to another person)
REGISTERED HOLDER
Please print name and address of Registered Holder:
----------------------------------------------------------------------------
(INSERT NAME)
----------------------------------------------------------------------------
(INSERT ADDRESS)
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER, IF ANY)
----------------------------------
If shares are to be registered in the name of and delivered to a Person other
than the Holder, please (i) print such Person's name and address and (ii)
provide a guarantee of your signature:
----------------------------------------------------------------------------
(INSERT NAME)
----------------------------------------------------------------------------
(INSERT ADDRESS)
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER, IF ANY)
B-10
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury PIES Certificate irrevocably
exercises the option to effect Early Settlement in accordance with the terms
of the Purchase Contract Agreement with respect to the Purchase Contracts
relating to the number of Treasury PIES evidenced by this Treasury PIES
Certificate specified below. 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 Treasury PIES Certificate representing any
Treasury PIES 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 Treasury 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 agrees to pay any transfer tax payable incident
thereto.
--------------------------------
Signature
Dated: _________________________
Signature Guarantee: ___________
Number of PIES evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
REGISTERED HOLDER
Please print name and address of Registered Holder:
----------------------------------------------------------------------------
(INSERT NAME)
----------------------------------------------------------------------------
(INSERT ADDRESS)
----------------------------------------------------------------------------
If shares of Common Stock or Treasury PIES Certificates are to be registered in
the name of and delivered to, and Pledged Treasury Securities are to be
transferred to, a Person other than the Holder, please print such Person's name
and address:
----------------------------------------------------------------------------
(INSERT NAME)
----------------------------------------------------------------------------
(INSERT ADDRESS)
----------------------------------------------------------------------------
(INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER, IF ANY)
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement:
----------------------------------------------------------------------------
B-11
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
Number of Treasury PIES
Amount of decrease in Amount of increase in evidenced by this
Number of Treasury Number of Treasury Global Certificate Signature of authorized
PIES evidenced by the PIES evidenced by the following such signatory of Purchase
Date Global Certificate Global Certificate decrease or increase Contract Agent
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
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-------------------- ------------------------ ------------------------ -------------------------- ---------------------------
B-12
EXHIBIT C
NOTICE FROM HOLDER TO PURCHASE CONTRACT AGENT
(Election for Creation of Treasury PIES or Recreation of Corporate PIES)
The Bank of New York, as Purchase Contract Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: [CORPORATE PIES] [TREASURY PIES] OF SIERRA PACIFIC
RESOURCES
Reference is made to the Purchase Contract Agreement, dated as
of November 16, 2001 (the "Purchase Contract Agreement"), between Sierra Pacific
Resources (the "Company") and you, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts. All capitalized
terms that are used but not defined herein have the meanings assigned to them in
the Purchase Contract Agreement.
The undersigned Holder hereby notifies you in accordance
with Section [3.13] [3.14] of the Purchase Contract Agreement, that such
Holder has elected to [create][recreate] ________ [Treasury PIES]
[Corporate PIES] by substitution of $__________ aggregate principal amount of
[Treasury Securities (Cusip No. __________)][Senior Notes] for the
[Pledged Senior Notes] [Pledged Treasury Securities] held in the Collateral
Account, in accordance with the Pledge Agreement.
The undersigned Holder hereby acknowledges that such Holder
may [create Treasury PIES] [recreate Corporate PIES] only in integral multiples
of 20 [Corporate PIES] [Treasury PIES].
------------------------------------
Name of Holder
------------------------------------
DTC Participant No.
------------------------------------
Signature
Signature Guarantee:________________
Date: _______________________
Please print name and address of Registered Holder:
----------------------------------------------------------------
Name
----------------------------------------------------------------
Social Security or other Taxpayer Identification Number, if any
----------------------------------------------------------------
Address
EXHIBIT D
INSTRUCTION FROM HOLDER TO PURCHASE CONTRACT AGENT
The Bank of New York, as Purchase Contract Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: [CORPORATE PIES] [TREASURY PIES] OF SIERRA PACIFIC
RESOURCES
Reference is made to the Purchase Contract Agreement, dated
as of November 16, 2001 (the "Purchase Contract Agreement"), between Sierra
Pacific Resources (the "Company") and you, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts. All capitalized
terms that are used but not defined herein have the meanings assigned to them
in the Purchase Contract Agreement.
The undersigned Holder hereby notifies you that in
accordance with Section [3.13] [3.14] of the Purchase Contract Agreement it
has transferred to ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
Securities Intermediary, for credit to the Collateral Account, $______
aggregate principal amount of [Treasury Securities] [Senior Notes] in
exchange for the [Pledged Senior Notes][Pledged Treasury Securities] held in
the Collateral Account, in accordance with the Purchase Contract Agreement
and the Pledge Agreement. The undersigned Holder has paid all applicable fees
relating to such exchange. The undersigned Holder hereby requests that you to
instruct the Collateral Agent to release to [you on behalf of the undersigned
Holder][the undersigned] the equivalent principal amount of [Pledged Senior
Notes] [Pledged Treasury Securities] related to the above-captioned [Corporate
PIES] [Treasury PIES].
------------------------------------
Name of Holder
------------------------------------
Signature
Signature Guarantee:________________
Date: ______________________________
Please print name and address of Registered Holder:
----------------------------------------------------------------
Name
----------------------------------------------------------------
[TRADES Account No.]
----------------------------------------------------------------
Social Security or other Taxpayer Identification Number, if any
----------------------------------------------------------------
Address
EXHIBIT E
NOTICE FROM PURCHASE CONTRACT AGENT TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
---------------------
---------------------
Attention:
Fax: __________
Re: [CORPORATE PIES] [TREASURY PIES] OF SIERRA PACIFIC
RESOURCES
Reference is made to the Purchase Contract Agreement, dated
as of November 16, 2001 (the "Purchase Contract Agreement"), between Sierra
Pacific Resources (the "Company") and you, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts. All capitalized
terms that are used but not defined herein have the meanings assigned to them
in the Purchase Contract Agreement.
We hereby notify you that a Termination Event has occurred
and that [the Senior Notes][Treasury Portfolio Interest]
[the Treasury Securities]relating to your ownership interest in _____
[Corporate PIES][Treasury Portfolio Interest][Treasury PIES] have been
released and are being held by us for your account pending receipt of
transfer instructions with respect to such [Senior Notes]
[Treasury Portfolio Interest][Treasury Securities] (the "Released
Securities").
Pursuant to Section 3.15 of the Purchase Contract
Agreement, we hereby request written transfer instructions with respect to
the Released Securities. Upon receipt of your instructions and upon transfer
to us of your [Corporate PIES][Treasury PIES] effected through book-entry
transfer or by delivery to us of your [Corporate PIES Certificate]
[Treasury PIES Certificate], we shall transfer the Released Securities by
book-entry transfer, or other appropriate procedures, in accordance with your
instructions. In the event you fail to effect such transfer or delivery, the
Released Securities and any interest thereon, shall be held in our name or in
the name of our nominee in trust for your benefit, until the earlier of such
time as (A) such [Corporate PIES][Treasury PIES] are transferred or your
[Corporate PIES Certificate][Treasury PIES Certificate] is surrendered or
satisfactory evidence is provided that your [Corporate PIES Certificate]
[Treasury PIES Certificate]has been destroyed, lost or stolen, together with
any indemnification that we or the Company may require and (B) the expiration
of the time period specified in the abandoned property laws of the relevant
State.
By: THE BANK OF NEW YORK,
as Purchase Contract Agent
----------------------------
Name:
Title:
Date:
EXHIBIT F
NOTICE TO SETTLE BY CASH
The Bank of New York, as Purchase Contract Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: [CORPORATE PIES] [TREASURY PIES] OF SIERRA PACIFIC
RESOURCES
Reference is made to the Purchase Contract Agreement, dated
as of November 16, 2001 (the "Purchase Contract Agreement"), between Sierra
Pacific Resources (the "Company") and you, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts. All capitalized
terms that are used but not defined herein have the meanings assigned to them
in the Purchase Contract Agreement.
The undersigned Holder hereby irrevocably notifies you in
accordance with Section 5.8 of the Purchase Contract Agreement, that such
Holder has elected to pay to the Securities Intermediary for deposit in the
Collateral Account, prior to 11:00 a.m. (New York City time), on the
[fifth Business Day][Business Day] immediately preceding the Purchase
Contract Settlement Date (in lawful money of the United States by certified
or cashiers' check or wire transfer, in immediately available funds), $______
as the Purchase Price for the shares of Common Stock issuable to such Holder
by the Company under the related Purchase Contract on the Purchase Contract
Settlement Date. The undersigned Holder hereby instructs you to notify
promptly the Collateral Agent of the undersigned Holder's election to make
such cash settlement with respect to the Purchase Contracts related to such
Holder's [Corporate PIES] [Treasury PIES] and to release the related
[Senior Notes] [Treasury Securities] to such Holder upon such Cash Settlement.
------------------------------------
Signature
Date: _______________________________
Signature Guarantee:_________________
Please print name and address of Registered Holder:
----------------------------------------------------------------
Name
----------------------------------------------------------------
Social Security or other Taxpayer Identification Number, if any
----------------------------------------------------------------
Address
EXHIBIT G
NOTICE FROM PURCHASE CONTRACT AGENT TO REMARKETING AGENT, COLLATERAL AGENT,
TRUSTEE AND THE COMPANY
(Initial, Subsequent or Final Remarketing)
▇▇▇▇▇▇ Brothers Inc., as Remarketing Agent The Bank of New York, as Trustee
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ____________________________ Attention: Corporate Trust Administration
Fax: _________________________________* Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ Fargo Bank Minnesota, Sierra Pacific Resources
National Association, as Collateral Agent ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Sixth and Marquette ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Treasurer
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Re: CORPORATE PIES OF SIERRA PACIFIC RESOURCES
Reference is made to the Purchase Contract Agreement, dated
as of November 16, 2001 (the "Purchase Contract Agreement"), between Sierra
Pacific Resources (the "Company") and you, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts. All capitalized
terms that are used but not defined herein have the meanings assigned to them
in the Purchase Contract Agreement.
In accordance with Section [5.3(b)] [5.3(c)] of the
Purchase Contract Agreement and based on [(A) the instructions received from
Holders of Corporate PIES prior to 5:00 p.m. (New York City time), on the
sixth Business Day immediately preceding the Purchase Contract Settlement
Date and notice from the Securities Intermediary regarding Cash Settlements
received prior to 11:00 a.m. (New York City time), on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, in each case
pursuant to Section 5.8 of the Purchase Contract Agreement and (B)]
the notices regarding the election not to participate in the Remarketing
received from Holders of Corporate PIES who complied with the procedures for
creating Treasury PIES prior to 5:00 p.m. (New York City time), on the
Election Date pursuant to Section 5.3(e) of the Purchase Contract Agreement,
we hereby notify you that $___________ in aggregate principal amount of
Pledged Senior Notes is to be tendered for purchase in the Remarketing that
is scheduled to take place [on one or more occasions in the period commencing
on August 10, 2005 up to and including November 1, 2005] [on November 9,
2005, which is the third Business Day before the Purchase Contract Settlement
Date].
By: THE BANK OF NEW YORK,
as Purchase Contract Agent
--------------------------
Name:
Title:
Date:
--------------------
* Address and other information or ▇▇▇▇▇▇ Brothers Inc. to be confirmed
prior to use of this Form.