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EXHIBIT 4(q)
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TRW INC.
and
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as Purchase Contract Agent
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PURCHASE CONTRACT AGREEMENT
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Dated as of ____________, ____
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TABLE OF CONTENTS
Page
PARTIES................................................................ 1
RECITALS............................................................... 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.............................................. 1
Act............................................................. 1
Affiliate....................................................... 1
Agent........................................................... 2
Agreement....................................................... 2
Applicable Market Value......................................... 2
Board of Directors.............................................. 2
Board Resolution................................................ 2
Business Day.................................................... 2
Closing Price................................................... 2
Collateral Agent................................................ 2
Common Stock.................................................... 2
Company......................................................... 2
Contract Fee.................................................... 2
Corporate Trust Office.......................................... 3
Applicable Market Price......................................... 3
Depositary...................................................... 3
Early Settlement................................................ 3
Early Settlement Amount......................................... 3
Early Settlement Date........................................... 3
Early Settlement Rate........................................... 3
Exchange Act.................................................... 3
Excess Underlying Securities.................................... 3
Expiration Date................................................. 3
Expiration Time................................................. 3
Final Settlement Date........................................... 3
Final Settlement Fund........................................... 3
Global Security Certificate..................................... 3
Holder.......................................................... 3
Issuer Order.................................................... 3
Issuer Request.................................................. 3
NYSE............................................................ 4
Officers' Certificate........................................... 4
Opinion of Counsel.............................................. 4
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Outstanding Securities.......................................... 4
Outstanding Security Certificates............................... 4
Payment Date.................................................... 5
Person.......................................................... 5
Pledge.......................................................... 5
Pledge Agreement................................................ 5
Predecessor Security Certificate................................ 5
Purchase Contract............................................... 5
Purchased Shares................................................ 5
Record Date..................................................... 5
Reorganization Event............................................ 5
Responsible Officer............................................. 5
Security........................................................ 5
Security Certificate............................................ 5
Security Register............................................... 5
Security Registrar.............................................. 6
Settlement Rate................................................. 6
Stated Amount................................................... 6
Termination Date................................................ 6
Termination Event............................................... 6
Threshold Appreciation Price.................................... 6
TIA............................................................. 6
Trading Day..................................................... 6
Underlying Securities........................................... 6
Underwriting Agreement.......................................... 6
Vice President.................................................. 6
Section 102. Compliance Certificates and Opinions.................... 7
Section 103. Form of Documents Delivered to Agent.................... 7
Section 104. Acts of Holders; Record Dates........................... 8
Section 105. Notices, etc., to Agent and the Company................. 9
Section 106. Notice to Holders; Waiver...............................10
Section 107. Effect of Headings and Table of Contents................10
Section 108. Successors and Assigns..................................10
Section 109. Separability Clause.....................................10
Section 110. Benefits of Agreement...................................10
Section 111. Governing Law...........................................10
Section 112. Legal Holidays..........................................11
Section 113. Counterparts............................................11
Section 114. Inspection of Agreement.................................11
ARTICLE TWO
Security Certificate Forms
Section 201. Forms of Security Certificates Generally................11
Section 202. Form of Agent's Certificate of Authentication...........12
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ARTICLE THREE
The Securities
Section 301. Title and Terms; Denominations..........................12
Section 302. Rights and Obligations Evidenced by the Security
Certificates.........................................12
Section 303. Execution, Authentication, Delivery and Dating..........13
Section 304. Temporary Security Certificates.........................13
Section 305. Registration; Registration of Transfer and Exchange.....14
Section 306. Mutilated, Destroyed, Lost and Stolen Security
Certificates.........................................16
Section 307. Persons Deemed Owners...................................17
Section 308. Cancellation............................................17
Section 309. Securities Not Separable................................18
ARTICLE FOUR
The Underlying Securities
Section 401. Payment of Interest; Interest Rights Preserved..........18
Section 402. Transfer of Underlying Securities Upon Occurrence of
Termination Event...................................19
ARTICLE FIVE
The Purchase Contracts
Section 501. Purchase of Shares of Common Stock......................20
Section 502. Contract Fees...........................................21
Section 503. Deferral of Payment Dates For Contract Fee..............22
Section 504. Payment of Purchase Price...............................22
Section 505. Issuance of Shares of Common Stock......................22
Section 506. Adjustment of Settlement Rate...........................23
Section 507. Notice of Adjustments and Certain Other Events..........29
Section 508. Termination Event; Notice...............................30
Section 509. Early Settlement........................................30
Section 510. No Fractional Shares....................................31
Section 511. Charges and Taxes.......................................32
ARTICLE SIX
Remedies
Section 601. Unconditional Right of Holders to Receive Contract Fees
and to Purchase Common Stock........................32
Section 602. Restoration of Rights and Remedies......................32
Section 603. Rights and Remedies Cumulative..........................33
Section 604. Delay or Omission Not Waiver............................33
Section 605. Undertaking for Costs...................................33
Section 606. Waiver of Stay or Extension Laws........................33
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ARTICLE SEVEN
The Agent
Section 701. Certain Duties and Responsibilities.....................34
Section 702. Notice of Default.......................................35
Section 703. Certain Rights of Agent.................................35
Section 704. Not Responsible for Recitals or Issuance of Securities..36
Section 705. May Hold Securities.....................................36
Section 706. Money Held in Trust.....................................36
Section 707. Compensation and Reimbursement..........................36
Section 708. Corporate Agent Required; Eligibility...................36
Section 709. Resignation and Removal; Appointment of Successor.......37
Section 710. Acceptance of Appointment by Successor..................38
Section 711. Merger, Conversion, Consolidation or Succession to
Business.............................................38
Section 712. Preservation of Information; Communications to Holders..39
Section 713. No Obligations of Agent.................................39
Section 714. Tax Compliance..........................................39
ARTICLE EIGHT
Supplemental Agreements
Section 801. Supplemental Agreements Without Consent of Holders......40
Section 802. Supplemental Agreements with Consent of Holders.........40
Section 803. Execution of Supplemental Agreements....................41
Section 804. Effect of Supplemental Agreements.......................41
Section 805. Reference to Supplemental Agreements....................42
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance
Section 901. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions.....42
Section 902. Rights and Duties of Successor Corporation..............42
Section 903. Opinion of Counsel to Agent.............................43
ARTICLE TEN
Covenants
Section 1001. Performance Under Purchase Contracts....................43
Section 1002. Maintenance of Office or Agency.........................43
Section 1003. Company to Reserve Common Stock.........................44
Section 1004. Covenants as to Common Stock............................44
Section 1005. Statements of Officers of the Company as to Default.....44
TESTIMONIUM............................................................44
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SIGNATURES.............................................................44
EXHIBIT A Form of Security Certificate.................................45
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PURCHASE CONTRACT AGREEMENT, dated as of __________________, ____,
between TRW INC., an Ohio corporation (the "Company"), and
__________________________, acting as purchase contract agent for the Holders of
Securities from time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Security Certificates evidencing the Securities.
All things necessary to make the Company's obligations under the
Securities, when the Security Certificates are executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Agent, as
in this Agreement provided, the valid obligations of the Company, and to
constitute these presents a valid agreement of the Company, in accordance with
its terms, have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
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Section 101. DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular; and nouns and pronouns of the masculine gender
include the feminine and neuter genders; and
(2) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not
to any particular Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of
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such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent" means the Person named as the "Agent" in the first paragraph of
this instrument until a successor Agent shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Agent" shall mean the
Person who is then the Agent hereunder.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning specified in Section 501.
"Board of Directors" means the board of directors of the Company or a
duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification and delivered
to the Agent.
"Business Day" means any day that is not a Saturday, Sunday or a day on
which the NYSE or banking institutions or trust companies in The City of New
York are authorized or obligated by law or executive order to be closed.
"Closing Price" has the meaning specified in Section 501.
"Collateral Agent" means ________________________, as Collateral Agent
under the Pledge Agreement until a successor Collateral Agent shall have become
such pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Collateral Agent" shall mean the Person who is then the Collateral
Agent thereunder.
"Common Stock" means the Common Stock, par value $0.625 per share, of
the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Contract Fee" means the fee payable by the Company in respect of each
Purchase Contract, equal to ___% per annum of the Stated Amount, accruing from
__________, _______, computed on the basis of the actual number of days elapsed
in a year of 365 or 366 days, as the case may be, plus any additional fees
accrued pursuant to Section 503.
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"Corporate Trust Office" means the principal office of the Agent in the
Borough of Manhattan, The City of New York, at which at any particular time its
corporate trust business shall be administered, which office at the date hereof
is located at __________________, New York, New York _____.
"Current Market Price" has the meaning specified in Section 506(a)(8).
"Depositary" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for the Securities as contemplated by
Section 305.
"Early Settlement" has the meaning specified in Section 509(a).
"Early Settlement Amount" has the meaning specified in Section 509(a).
"Early Settlement Date" has the meaning specified in Section 509(a).
"Early Settlement Rate" has the meaning specified in Section 509(b).
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Excess Underlying Securities" has the meaning specified in Section
402.
"Expiration Date" has the meaning specified in Section 104.
"Expiration Time" has the meaning specified in Section 506(a)(6).
"Final Settlement Date" means __________, ______.
"Final Settlement Fund" has the meaning specified in Section 505.
"Global Security Certificate" means a Security Certificate that
evidences all or part of the Securities and is registered in the name of a
Depositary or a nominee thereof.
"Holder," when used with respect to a Security Certificate (or a
Security), means a Person in whose name the Security evidenced by such Security
Certificate (or the Security Certificate evidencing such Security) is registered
in the Security Register.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Company by its Chief Executive Officer, its President
or a Vice President and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Agent.
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"NYSE" has the meaning specified in Section 501.
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, the President or any Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and
delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company.
"Outstanding Securities" means, as of the date of determination, all
Securities evidenced by then Outstanding Security Certificates, except:
(i) If a Termination Event has occurred, Securities for which the
Underlying Securities have been theretofore deposited with the
Agent in trust for the Holders of such Securities; and
(ii) On and after the applicable Early Settlement Date, Securities
as to which the Holder has elected to effect Early Termination
of the related Purchase Contracts;
provided, however, that in determining whether the Holders of the requisite
number of Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
Affiliate of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Agent shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Securities which the Agent knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Agent the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any Affiliate of the Company.
"Outstanding Security Certificates" means, as of the date of
determination, all Security Certificates theretofore authenticated, executed and
delivered under this Agreement, except:
(i) Security Certificates theretofore cancelled by the Agent or
delivered to the Agent for cancellation; and
(ii) Security Certificates in exchange for or in lieu of which
other Security Certificates have been authenticated, executed
on behalf of the Holder and delivered pursuant to this
Agreement, other than any such Security Certificate in respect
of which there shall have been presented to the Agent proof
satisfactory to it that such Security Certificate is held by a
bona fide purchaser in whose hands the Securities evidenced by
such Security Certificate are valid obligations of the
Company.
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"Payment Date" means each __________ and __________, commencing
__________, _____.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" means the pledge under the Pledge Agreement of the Underlying
Securities constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, among the Company, the Collateral Agent and the Agent, on its own behalf
and as attorney-in-fact for the Holders from time to time of the Securities.
"Predecessor Security Certificate" of any particular Security
Certificate means every previous Security Certificate evidencing all or a
portion of the rights and obligations of the Holder under the Securities
evidenced thereby; and, for the purposes of this definition, any Security
Certificate authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security Certificate shall be
deemed to evidence the same rights and obligations of the Holder as the
mutilated, destroyed, lost or stolen Security Certificate.
"Purchase Contract," when used with respect to any Security, means the
contract obligating the Company to sell and the Holder of such Security to
purchase Common Stock on the terms and subject to the conditions set forth in
Article Five hereof.
"Purchased Shares" has the meaning specified in Section 506(a)(6).
"Record Date" for the interest and Contract Fees payable on any Payment
Date means the ______ or _______ (whether or not a Business Day), as the case
may be, next preceding such Payment Date.
"Reorganization Event" has the meaning specified in Section 506(b).
"Responsible Officer," when used with respect to the Agent, means any
officer of the Agent assigned by the Agent to administer its corporate trust
matters.
"Security" means the collective rights and obligations of a Holder of a
Security Certificate in respect of Underlying Securities with a principal amount
equal to the Stated Amount, subject to the Pledge thereof, and a Purchase
Contract.
"Security Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Securities specified on such
certificate.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
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"Settlement Rate" has the meaning specified in Section 501.
"Stated Amount" means $____________.
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following
events: (i) at any time on or prior to the Final Settlement Date, a decree or
order by a court having jurisdiction in the premises shall have been entered
adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization of the Company under the United States
Bankruptcy Code or any other similar applicable Federal or State law, and,
unless such decree or order shall have been entered within 60 days prior to the
Final Settlement Date, such decree or order shall have continued undischarged
and unstayed for a period of 60 days; or (ii) a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of the Company or
of its property, or for the winding up or liquidation of its affairs, shall have
been entered, and, unless such decree or order shall have been entered within 60
days prior to the Final Settlement Date, such decree or order shall have
continued undischarged and unstayed for a period of 60 days, or (iii) at any
time on or prior to the Final Settlement Date the Company shall institute
proceedings to be adjudicated a bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or consent
seeking reorganization under the United States Bankruptcy Code or any other
similar applicable Federal or State law, or shall consent to the filing of any
such petition, or shall consent to the appointment of a receiver or liquidator
or trustee or assignee in bankruptcy or insolvency of it or of its property, or
shall make an assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in Section
501.
"TIA" means the Trust Indenture Act of 1939, as amended, or any
successor statute.
"Trading Day" has the meaning specified in Section 501.
"Underlying Securities" means the [type and description of underlying
securities] pledged to the Collateral Agent pursuant to the Pledge.
"Underwriting Agreement" means the Underwriting Agreement dated
__________, ______ between the Company and ______________________________, as
representatives of the several Underwriters named therein.
"Vice President" means any vice president, whether or not designated by
a number or a word or words added before or after the title "vice president."
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Section 102. COMPLIANCE CERTIFICATES AND OPINIONS. Except as otherwise
expressly provided by this Agreement, upon any application or request by the
Company to the Agent to take any action under any provision of this Agreement,
the Company shall furnish to the Agent an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Agreement relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. FORM OF DOCUMENTS DELIVERED TO AGENT. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate of, or
representations by, counsel or an Opinion of 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 of, or
representations by, counsel 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
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factual matters is in the possession of the Company unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 104. ACTS OF HOLDERS; RECORD DATES. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by 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 Agent and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Agreement and (subject to Section 701)
conclusive in favor of the Agent and the Company, if made in the manner provided
in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Agent deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security Certificate
evidencing such Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Agent or the Company in reliance thereon, whether or
not notation of such action is made upon such Security Certificate.
(e) The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled to give,
make or take any request, demand, authorization, direction, notice, consent,
waiver or other action
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provided or permitted by this Agreement to be given, made or taken by Holders of
Securities. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite number of Outstanding Securities on such record date. Nothing
in this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite number of Outstanding Securities on the
date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Company, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Agent in writing and to each Holder of Securities in the
manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day; provided that no
such change shall be effective unless notice of the proposed new Expiration Date
is given to the Agent in writing, and to each Holder of Securities in the manner
set forth in Section 106, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the Company shall be deemed to have initially designated the
180th day after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.
Section 105. NOTICES, ETC., TO AGENT AND THE COMPANY. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with,
(1) the Agent by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid,
to the Agent at [Address], Attention:
_________________________, or at any other address previously
furnished in writing by the Agent to the Holders and the
Company, or
(2) The Company by the Agent or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and
personally delivered or mailed, first-class postage prepaid,
to the Company at TRW Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇
▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Attention: ____________, or at any
other address previously furnished in writing to the Agent by
the Company.
Section 106. NOTICE TO HOLDERS; WAIVER. Where this Agreement provides
for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Agreement provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Agent, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Agent shall
constitute a sufficient notification for every purpose hereunder.
Section 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 108. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 109. SEPARABILITY CLAUSE. In case any provision in this
Agreement or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions hereof and
thereof shall not in any way be affected or impaired thereby.
Section 110. BENEFITS OF AGREEMENT. Nothing in this Agreement or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and, 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 Securities evidenced by their Security Certificates by their acceptance of
delivery thereof.
Section 111. GOVERNING LAW. This Agreement and the Securities shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to the conflict of laws provisions thereof.
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Section 112. LEGAL HOLIDAYS. In any case where any Payment Date, any
Early Settlement Date or the Final Settlement Date shall not be a Business Day,
then (notwithstanding any other provision of this Agreement or of the
Securities) payment in respect of interest on Underlying Securities or Contract
Fees shall not be made, Purchase Contracts shall not be performed and Early
Settlement shall not be effected on such date, but such payments shall be made,
or the Purchase Contracts shall be performed or Early Settlement shall be
effected, as applicable, on the next succeeding Business Day with the same force
and effect as if made on such Payment Date, Early Settlement Date or Final
Settlement Date, as the case may be; provided, that no interest shall accrue or
be payable by the Company or any Holder for the period from and after any such
Payment Date, Early Settlement Date or Final Settlement Date, as the case may
be, 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, Early
Settlement Date or Final Settlement Date, as the case may be.
Section 113. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which, when so executed, shall be deemed an original,
but all such counterparts shall together constitute one and the same instrument.
Section 114. INSPECTION OF AGREEMENT. A copy of this Agreement shall be
available at all reasonable times at the Corporate Trust Office for inspection
by any Holder.
ARTICLE TWO
Security Certificate Forms
--------------------------
Section 201. FORMS OF SECURITY CERTIFICATES GENERALLY. The Security
Certificates (including the form of Purchase Contracts forming part of the
Securities evidenced thereby) shall be in substantially the form set forth in
Exhibit A hereto, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities exchange on which the
Securities are listed or any Depositary therefor, or as may, consistently
herewith, be determined by the officers of the Company executing such Security
Certificates, as evidenced by their execution of the Security Certificates.
The definitive Security Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing the Security
Certificates, consistent with the provisions of this Agreement, as evidenced by
their execution thereof.
Every Global Security Certificate authenticated, executed on behalf of
the Holders and delivered hereunder shall bear a legend in substantially the
following form:
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THIS SECURITY CERTIFICATE IS A GLOBAL SECURITY CERTIFICATE WITHIN THE
MEANING OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
SECURITY CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS SECURITY
CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
Section 202. FORM OF AGENT'S CERTIFICATE OF AUTHENTICATION. The form of
the Agent's certificate of authentication of the Securities shall be in
substantially the form set forth on the form of the Security Certificates.
ARTICLE THREE
The Securities
--------------
Section 301. TITLE AND TERMS; DENOMINATIONS. The aggregate number of
Securities evidenced by Security Certificates authenticated, executed on behalf
of the Holders and delivered hereunder is limited to __________ [(subject to
increase up to a maximum of _________ to the extent the over-allotment option of
the underwriters under the Underwriting Agreement is exercised)], except for
Security Certificates authenticated, executed and delivered upon registration of
transfer of, in exchange for, or in lieu of, other Security Certificates
pursuant to Section 304, 305, 306, 509 or 805.
The Security Certificates shall be issuable only in registered form and
only in denominations of a single Security and any integral multiple thereof.
Section 302. RIGHTS AND OBLIGATIONS EVIDENCED BY THE SECURITY
CERTIFICATES. Each Security Certificate shall evidence the number of Securities
specified therein, with each such Security representing the ownership by the
Holder thereof of Underlying Securities with a principal amount equal to the
Stated Amount, subject to the Pledge of such Underlying Securities by such
Holder pursuant to the Pledge Agreement, and the rights and obligations of the
Holder under one Purchase Contract. Prior to the purchase, if any, of shares of
Common Stock under the Purchase Contracts, the Securities shall not entitle the
Holders to any of the rights of a holder of shares of Common Stock, including,
without limitation, the right to vote or receive any dividends or other payments
or to consent or to receive notice as stockholders in respect of the meetings of
stockholders or for the election of directors of the Company or for any other
matter, or any other rights whatsoever as stockholders, of the Company, except
to the extent otherwise expressly provided in this Agreement.
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Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. Upon the
execution and delivery of this Agreement, and at any time and from time to time
thereafter, the Company may deliver Security Certificates executed by the
Company to the Agent for authentication, execution on behalf of the Holders and
delivery, together with its Issuer Order for authentication of such Security
Certificates, and the Agent in accordance with such Issuer Order shall
authenticate, execute on behalf of the Holder and deliver such Security
Certificates.
The Security Certificates shall be executed on behalf of the Company by
its Chief Executive Officer, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Security
Certificates may be manual or facsimile.
Security Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Security
Certificates or did not hold such offices at the date of such Security
Certificates.
No Purchase Contract underlying a Security evidenced by a Security
Certificate shall be valid until such Security Certificate has been executed on
behalf of the Holder by the manual signature of an authorized signatory of the
Agent, as such Holder's attorney-in-fact. Such signature by an authorized
signatory of the Agent shall be conclusive evidence that the Holder of such
Security Certificate has entered into the Purchase Contracts underlying the
Securities evidenced by such Security Certificate.
Each Security Certificate shall be dated the date of its
authentication.
No Security Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on such
Security Certificate a certificate of authentication substantially in the form
provided for herein executed by an authorized signatory of the Agent by manual
signature, and such certificate upon any Security Certificate shall be
conclusive evidence, and the only evidence, that such Security Certificate has
been duly authenticated and delivered hereunder.
Section 304. TEMPORARY SECURITY CERTIFICATES. Pending the preparation
of definitive Security Certificates, the Company shall execute and deliver to
the Agent, and the Agent shall authenticate, execute on behalf of the Holders,
and deliver, in lieu of such definitive Security Certificates, temporary
Security Certificates which are in substantially the form set forth in Exhibit A
hereto, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as may be required by the rules of any securities exchange on which the
Securities are listed, or as may, consistently herewith, be determined by the
officers of the Company executing such Security Certificates, as evidenced by
their execution of the Security Certificates.
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If temporary Security Certificates are issued, the Company will cause
definitive Security Certificates to be prepared without unreasonable delay.
After the preparation of definitive Security Certificates, the temporary
Security Certificates shall be exchangeable for definitive Security Certificates
upon surrender of the temporary Security Certificates at the Corporate Trust
Office, at the expense of the Company and without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Security Certificates,
the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
one or more definitive Security Certificates of authorized denominations and
evidencing a like number of Securities as the temporary Security Certificate or
Security Certificates so surrendered. Until so exchanged, the temporary Security
Certificates shall in all respects evidence the same benefits and the same
obligations with respect to the Securities evidenced thereby as definitive
Security Certificates.
Section 305. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The
Agent shall keep at the Corporate Trust Office a register (the register
maintained in such office being herein referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the Agent
shall provide for the registration of Security Certificates and of transfers of
Security Certificates (the Agent, in such capacity, the "Security Registrar").
Upon surrender for registration of transfer of any Security Certificate
at the Corporate Trust Office, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the designated
transferee or transferees, and deliver, in the name of the designated transferee
or transferees, one or more new Security Certificates of any authorized
denominations and evidencing a like number of Securities.
At the option of the Holder, Security Certificates may be exchanged for
other Security Certificates, of any authorized denominations and evidencing a
like number of Securities, upon surrender of the Security Certificates to be
exchanged at the Corporate Trust Office. Whenever any Security Certificates are
so surrendered for exchange, the Company shall execute and deliver to the Agent,
and the Agent shall authenticate, execute on behalf of the Holder, and deliver
the Security Certificates which the Holder making the exchange is entitled to
receive.
All Security Certificates issued upon any registration of transfer or
exchange of a Security Certificate shall evidence the ownership of the same
number of Securities and be entitled to the same benefits and subject to the
same obligations, under this Agreement as the Securities evidenced by the
Security Certificate surrendered upon such registration of transfer or exchange.
Every Security Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Agent) be duly endorsed,
or be accompanied
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by a written instrument of transfer in form satisfactory to the Company and the
Agent duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or
exchange of a Security Certificate, but the Company and the Agent may require
payment from the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Security Certificates, other than any exchanges pursuant
to Sections 306 and 805 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder and deliver any Security
Certificate presented or surrendered for registration of transfer or for
exchange on or after the Final Settlement Date or the Termination Date. In lieu
of delivery of a new Security Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Agent shall (i) if
the Final Settlement Date has occurred, deliver the shares of Common Stock
issuable in respect of the Purchase Contracts forming a part of the Securities
evidenced by such Security Certificate, or (ii) if a Termination Event shall
have occurred prior to the Final Settlement Date, transfer the principal amount
of the Underlying Securities evidenced thereby, in each case subject to the
applicable conditions and in accordance with the applicable provisions of
Article Five hereof.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Security Certificates:
(1) Each Global Security Certificate authenticated and executed on
behalf of the Holders under this Agreement shall be registered
in the name of the Depositary designated for such Global
Security Certificate or a nominee thereof and delivered to
such Depositary or a nominee thereof or custodian therefor,
and each such Global Security Certificate shall constitute a
single Security Certificate for all purposes of this
Agreement.
(2) Notwithstanding any other provision in this Agreement, no
Global Security Certificate may be exchanged in whole or in
part for Security Certificates registered, and no transfer of
a Global Security Certificate in whole or in part may be
registered, in the name of any Person other than the
Depositary for such Global Security Certificate or a nominee
thereof unless (a) such Depositary (i) has notified the
Company that it is unwilling or unable to continue as
Depositary for such Global Security Certificate or (ii) has
ceased to be a clearing agency registered under the Exchange
Act or (b) there shall have occurred and be continuing a
default by the Company in respect to its obligations under one
or more Purchase Contracts.
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(3) Subject to Clause (2) above, any exchange of a Global Security
Certificate for other Security Certificates may be made in
whole or in part, and all Security Certificates issued in
exchange for a Global Security Certificate or any portion
thereof shall be registered in such names as the Depositary
for such Global Security Certificate shall direct.
(4) Every Security Certificate authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of,
a Global Security Certificate or any portion thereof, whether
pursuant to this Section, Section 304, 306, 509 or 805 or
otherwise, shall be authenticated, executed on behalf of the
Holders and delivered in the form of, and shall be, a Global
Security Certificate, unless such Security Certificate is
registered in the name of a Person other than the Depositary
for such Global Security Certificate or a nominee thereof.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITY
CERTIFICATES. If any mutilated Security Certificate is surrendered to the Agent,
the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
a new Security Certificate, evidencing the same number of Securities and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i) evidence
to their satisfaction of the destruction, loss or theft of any Security
Certificate, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of any of them harmless, then, in the absence of
notice to the Company or the Agent that such Security Certificate has been
acquired by a bona fide purchaser, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or stolen Security
Certificate, a new Security Certificate, evidencing the same number of
Securities and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder, and deliver to the Holder, a
Security Certificate on or after the Final Settlement Date or the Termination
Date. In lieu of delivery of a new Security Certificate, upon satisfaction of
the applicable conditions specified above in this Section and receipt of
appropriate registration or transfer instructions from such Holder, the Agent
shall (i) if the Final Settlement Date has occurred, deliver the shares of
Common Stock issuable in respect of the Purchase Contracts forming a part of the
Securities evidenced by such Security Certificate, or (ii) if a Termination
Event shall have occurred prior to the Final Settlement Date, transfer the
principal amount of the Underlying Securities evidenced thereby, in each case
subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
Upon the issuance of any new Security Certificate under this Section,
the Company and the Agent may require the payment of a sum sufficient to cover
any tax or
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other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Agent) connected therewith.
Every new Security Certificate issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security Certificate shall constitute an
original additional contractual obligation of the Company and of the Holder in
respect of the Security evidenced thereby, whether or not the destroyed, lost or
stolen Security Certificate shall be at any time enforceable by anyone, and
shall be entitled to all the benefits and be subject to all the obligations of
this Agreement equally and proportionately with any and all other Security
Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
settlement of mutilated, destroyed, lost or stolen Security Certificates.
Section 307. PERSONS DEEMED OWNERS. Prior to due presentment of a
Security Certificate for registration of transfer, the Company and the Agent,
and any agent of the Company or the Agent, may treat the Person in whose name
such Security Certificate is registered as the owner of the Securities evidenced
thereby, for the purpose of receiving payments of interest on the Underlying
Securities, receiving payments of Contract Fees, performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not the payment of
interest on the Underlying Securities or any Contract Fee payable in respect of
the Purchase Contracts constituting a part of the Securities evidenced thereby
shall be overdue and notwithstanding any notice to the contrary, and neither the
Company nor the Agent, nor any agent of the Company or the Agent, shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security
Certificate, nothing herein shall prevent the Company, the Agent or any agent of
the Company or the Agent, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary (or its nominee), as a
Holder, with respect to such Global Security Certificate or impair, as between
such Depositary and owners of beneficial interests in such Global Security
Certificate, the operation of customary practices governing the exercise of
rights of such Depositary (or its nominee) as Holder of such Global Security
Certificate.
Section 308. CANCELLATION. All Security Certificates surrendered for
delivery of shares of Common Stock on or after the Final Settlement Date,
transfer of Underlying Securities after the occurrence of a Termination Event or
pursuant to an Early Settlement or registration of transfer or exchange shall,
if surrendered to any Person other than the Agent, be delivered to the Agent
and, if not already cancelled, shall be promptly cancelled by it. The Company
may at any time deliver to the Agent for cancellation any Security Certificates
previously authenticated, executed and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Security Certificates so
delivered shall, upon Issuer Order, be promptly cancelled by the Agent. No
Security Certificates shall be authenticated, executed on behalf of the Holder
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and delivered in lieu of or in exchange for any Security Certificates cancelled
as provided in this Section, except as expressly permitted by this Agreement.
All cancelled Security Certificates held by the Agent shall be disposed of as
directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire any
Security Certificate, such acquisition shall not operate as a cancellation of
such Security Certificate unless and until such Security Certificate is
delivered to the Agent cancelled or for cancellation.
Section 309. SECURITIES NOT SEPARABLE. Notwithstanding anything
contained herein or in the Security Certificates to the contrary, for so long as
the Purchase Contract underlying a Security remains in effect such Security
shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Security in respect of the Underlying
Securities and Purchase Contracts constituting such Security may be acquired,
and may be transferred and exchanged, only as a Security. Other than a Security
Certificate evidencing a Security, no Holder of a Security, or any transferee
thereof, shall be entitled to receive a certificate evidencing the ownership of
Underlying Securities or the rights and obligations of the Holder and the
Company under a Purchase Contract for so long as the Purchase Contract
underlying the Security remains in effect.
ARTICLE FOUR
The Underlying Securities
-------------------------
Section 401. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Interest
on any Underlying Security which is paid on any Payment Date shall, subject to
receipt thereof by the Agent from the Collateral Agent as provided by the terms
of the Pledge Agreement, be paid to the Person in whose name the Security
Certificate (or one or more Predecessor Security Certificates) of which such
Underlying Security is a part is registered at the close of business on the
Record Date next preceding such Payment Date.
Each Security Certificate evidencing Underlying Securities delivered
under this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Security Certificate shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by the Underlying
Securities underlying such other Security Certificate.
In the case of any Security with respect to which Early Settlement of
the underlying Purchase Contract is effected on an Early Settlement Date after
any Record Date and on or prior to the next succeeding Payment Date, interest on
the Underlying Securities underlying such Security otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Early
Settlement, and such interest shall, subject to receipt thereof by the Agent, be
paid to the Person in whose name the Security Certificate (or one or more
Predecessor Security Certificates) is
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registered at the close of business on the Record Date. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any
Security with respect to which Early Settlement of the underlying Purchase
Contract is effected on an Early Settlement Date, interest on the related
Underlying Securities that would otherwise be payable after the Early Settlement
Date shall not be payable hereunder to the Holder of such Security.
Section 402. TRANSFER OF UNDERLYING SECURITIES UPON OCCURRENCE OF
TERMINATION EVENT. Upon the occurrence of a Termination Event and the transfer
to the Agent of the Underlying Securities underlying such Securities pursuant to
the terms of the Pledge Agreement, the Agent shall request transfer instructions
with respect to such Underlying Securities from each Holder of Securities by
written request mailed to such Holder at his address as it appears in the
Security Register, in respect of the Underlying Securities underlying the
Security Certificate held by such Holder. Upon surrender to the Agent of a
Security Certificate with such transfer instructions in proper form for transfer
of the Underlying Securities by Federal Reserve Bank-Wire or other appropriate
procedure, the Agent shall transfer the Underlying Securities evidenced by such
Security Certificate to such Holder in accordance with such instructions. If a
Security Certificate is not duly surrendered to the Agent with appropriate
transfer instructions, the Agent shall hold the Underlying Securities evidenced
by such Security Certificate as custodian for the Holder of such Security
Certificate.
Underlying Securities shall be transferred only in denominations of
$1,000 and integral multiples thereof. As promptly as practicable following the
occurrence of a Termination Event, the Agent shall determine the excess of (i)
the aggregate principal amount of Underlying Securities underlying the
Outstanding Securities over (ii) the aggregate principal amount of Underlying
Securities in denominations of $1,000 and integral multiples thereof
transferrable to Holders of record on the date of such Termination Event (such
excess being herein referred to as the "Excess Underlying Securities"). As soon
as practicable after transfer to the Agent of the Underlying Securities
underlying the Outstanding Securities as provided in the Pledge Agreement, the
Agent shall sell the Excess Underlying Securities to or through one or more U.S.
Government securities dealers at then prevailing prices. The Agent shall deduct
from the proceeds of such sales all commissions and other out-of-pocket
transaction costs incurred in connection with such sales of Excess Underlying
Securities and, until the net proceeds of such sale or sales have been
distributed to Holders of the Securities, the Agent shall hold such proceeds in
trust for the Holders of Securities. Each Holder shall be entitled to receive a
portion, if any, of such net proceeds in lieu of Underlying Securities with a
principal amount of less than $1,000 determined by multiplying the aggregate
amount of such net proceeds by a fraction, the numerator of which is the
fraction of $1,000 in principal amount of Underlying Securities to which such
Holder would otherwise be entitled (after taking into account all Securities
then held by such Holder) and the denominator of which is the aggregate
principal amount of Excess Underlying Securities.
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ARTICLE FIVE
The Purchase Contracts
----------------------
Section 501. PURCHASE OF SHARES OF COMMON STOCK. Each Purchase Contract
shall obligate the Holder of the related Security to purchase, and the Company
to sell, on the Final Settlement Date at a price equal to the Stated Amount, a
number of shares of Common Stock equal to the Settlement Rate, unless, on or
prior to the Final Settlement Date, there shall have occurred a Termination
Event or an Early Settlement with respect to the Security of which such Purchase
Contract is a part. The "Settlement Rate" is equal to (a) if the Applicable
Market Value (as defined below) is greater than $_____ (the "Threshold
Appreciation Price"), _____ of a share of Common Stock per Purchase Contract,
(b) if the Applicable Market Value is less than or equal to the Threshold
Appreciation Price but is greater than the Stated Amount, a fractional share of
Common Stock per Purchase Contract equal to the Stated Amount divided by the
Applicable Market Value (rounded upward or downward to the nearest 1/10,000th of
a share) and (c) if the Applicable Market Value is less than or equal to the
Stated Amount, one share of Common Stock per Purchase Contract, in each case
subject to adjustment as provided in Section 506. As provided in Section 510, no
fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts.
The "Applicable Market Value" means the average of the Closing Price
per share of Common Stock on each of the twenty consecutive Trading Days ending
on the last Trading Day immediately preceding the Final Settlement Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by Nasdaq, or, if the Common Stock is not so reported, the
last quoted bid price for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization, or, if such
bid price is not available, the market value of the Common Stock on such date as
determined by a nationally recognized independent investment banking firm
retained for this purpose by the Company. A "Trading Day" means a day on which
the Common Stock (A) is not suspended from trading on any national or regional
securities exchange or association or over-the-counter market at the close of
business and (B) has traded at least once on the national or regional securities
exchange or association or over-the-counter market that is the primary market
for the trading of the Common Stock.
Each Holder of a Security Certificate evidencing Securities, by his
acceptance thereof, irrevocably authorizes the Agent to enter into and perform
the related Purchase Contracts on his behalf as his attorney-in-fact, agrees to
be bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions
hereof, irrevocably authorizes the Agent
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as his attorney-in-fact to enter into and perform the Pledge Agreement on his
behalf as his attorney-in-fact, and consents to and agrees to be bound by the
Pledge of the Underlying Securities underlying such Security Certificate
pursuant to the Pledge Agreement; provided, that upon a Termination Event, the
rights of the Holder of such Security under the Purchase Contract may be
enforced without regard to any other rights or obligations. Each Holder of a
Security, by his acceptance thereof, further irrevocably covenants and agrees,
that, to the extent and in the manner provided in Section 504 and the Pledge
Agreement, but subject to the terms thereof, payments in respect of principal of
the Underlying Securities on the Final Settlement Date shall be paid by the
Collateral Agent to the Company in satisfaction of such Holder's obligations
under such Purchase Contract and such Holder shall acquire no right, title or
interest in such payments.
Upon registration of transfer of a Security Certificate evidencing
Purchase Contracts, the transferee shall be bound (without the necessity of any
other action on the part of such transferee), under the terms of this Agreement,
the Purchase Contracts evidenced thereby and the Pledge Agreement and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by the Security Certificates so transferred. The Company covenants and
agrees, and each Holder of a Security Certificate, by his acceptance thereof,
likewise covenants and agrees, to be bound by the provisions of this paragraph.
Section 502. CONTRACT FEES. Subject to Section 503, the Company shall
pay, on each Payment Date, the Contract Fees payable in respect of each Purchase
Contract to the Person in whose name the Security Certificate (or one or more
Predecessor Security Certificates) evidencing such Purchase Contract is
registered at the close of business on the Record Date next preceding such
Payment Date. The Contract Fees will be payable at the office of the Agent in
The City of New York maintained for that purpose or, at the option of the
Company, by check mailed to the address of the Person entitled thereto at such
address as it appears on the Security Register.
Upon the occurrence of a Termination Event, the Company's obligation to
pay Contract Fees (including any accrued or deferred Contract Fees) shall cease.
Each Security Certificate delivered under this Agreement upon
registration of transfer of, or in exchange for, or in lieu of, any other
Security Certificate shall carry the rights to Contract Fees accrued and unpaid,
and to accrue, which were carried by the Purchase Contracts evidenced by such
other Security Certificate.
Subject to Section 509, in the case of any Security with respect to
which Early Settlement of the underlying Purchase Contract is effected on an
Early Settlement Date after any Record Date and on or prior to the next
succeeding Payment Date, Contract Fees, if any, otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Early
Settlement, and such Contract Fees shall be paid to the Person in whose name the
Security Certificate evidencing such Security (or one or more Predecessor
Security Certificates) is registered at the close of business on
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such Record Date. Except as otherwise expressly provided in the immediately
preceding sentence, in the case of any Security with respect to which Early
Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date, Contract Fees that would otherwise be payable after the Early
Settlement Date with respect to the Purchase Contract underlying such Security
shall not be payable.
Section 503. DEFERRAL OF PAYMENT DATES FOR CONTRACT FEE. The Company
shall have the right, at any time prior to the Final Settlement Date, to defer
the payment of any or all of the Contract Fees otherwise payable on any Payment
Date, but only if the Company shall give the Holders and the Agent written
notice of its election to defer such payment (specifying the amount to be
deferred) at least ten Business Days prior to the earlier of (i) the next
succeeding Payment Date or (ii) the date the Company is required to give notice
of the Record or Payment Date with respect to payment of such Contract Fees to
the New York Stock Exchange or other applicable self-regulatory organization or
to Holders of the Securities, but in any event not less than one Business Day
prior to such Record Date. Any Contract Fees so deferred shall bear additional
Contract Fees thereon at the rate of _____% annum (computed on the basis of the
actual number of days elapsed in a year of 365 or 366 days, as the case may be),
compounding on each succeeding Payment Date, until paid in full. Deferred
Contract Fees (and additional Contract Fees accrued thereon) shall be due on the
next succeeding Payment Date except to the extent that payment is deferred
pursuant to this Section. No Contract Fees may be deferred to a date that is
after the Final Settlement Date or, with respect to any particular Purchase
Contract, Early Settlement thereof. If the Purchase Contracts are terminated
upon the occurrence of a Termination Event, the Holder's right to receive
Contract Fees or deferred Contract Fees (and additional Contract Fees accrued
thereon) will terminate.
Section 504. PAYMENT OF PURCHASE PRICE. The purchase price for the
shares of Common Stock purchased pursuant to a Purchase Contract shall be paid
by application of payments received by the Company on the Final Settlement Date
from the Collateral Agent pursuant to the Pledge Agreement in respect of the
principal of the Underlying Securities pledged to secure the obligations of the
relevant Holder under such Purchase Contract. Such application shall satisfy in
full the obligations under such Purchase Contract of the Holder of the Security
of which such Purchase Contract is a part. The Company shall not be obligated to
issue any shares of Common Stock in respect of a Purchase Contract or deliver
any certificates therefor to the Holder unless it shall have received payment in
full of the aggregate purchase price for the shares of Common Stock to be
purchased thereunder in the manner herein set forth.
Section 505. ISSUANCE OF SHARES OF COMMON STOCK. Unless a Termination
Event shall have occurred on or prior to the Final Settlement Date or an Early
Settlement shall have occurred, on the Final Settlement Date, upon its receipt
of payment in full of the purchase price for the shares of Common Stock
purchased by the Holders pursuant to the foregoing provisions of this Article,
and subject to Section 506(b), the Company shall issue and deposit with the
Agent, for the benefit of the Holders of the Outstanding Securities, one or more
certificates representing the shares
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of Common Stock registered in the name of the Agent (or its nominee) as
custodian for the Holders (such certificates for shares of Common Stock,
together with any dividends or distributions for which a record date and payment
date for such dividend or distribution has occurred after the Final Settlement
Date, being hereinafter referred to as the "Final Settlement Fund") to which the
Holders are entitled hereunder. Subject to the foregoing, upon surrender of a
Security Certificate to the Agent on or after the Final Settlement Date,
together with settlement instructions thereon duly completed and executed, the
Holder of such Security Certificate shall be entitled to receive in exchange
therefor a certificate representing that number of whole shares of Common Stock
which such Holder is entitled to receive pursuant to the provisions of this
Article Five (after taking into account all Securities then held by such Holder)
together with cash in lieu of fractional shares as provided in Section 510 and
any dividends or distributions with respect to such shares constituting part of
the Final Settlement Fund, but without any interest thereon, and the Security
Certificate so surrendered shall forthwith be cancelled. Such shares shall be
registered in the name of the Holder or the Holder's designee as specified in
the settlement instructions on the Security Certificate.
If any shares of Common Stock issued in respect of a Purchase Contract
are to be registered to a Person other than the Person in whose name the
Security Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Security Certificate
evidencing such Purchase Contract or has established to the satisfaction of the
Company that such tax either has been paid or is not payable.
Section 506. ADJUSTMENT OF SETTLEMENT RATE. (a) Adjustments for
Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on any class of Common Stock of the Company in
Common Stock, the Settlement Rate in effect at the opening of
business on the day following the date fixed for the
determination of stockholders entitled to receive such
dividend or other distribution shall be increased by dividing
such Settlement Rate by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination
and the denominator shall be the sum of such number of shares
and the total number of shares constituting such dividend or
other distribution, such increase to become effective
immediately after the opening of business on the day following
the date fixed for such determination. For the purposes of
this paragraph (1), the number of shares of Common Stock at
any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend
or make any distribution on shares of Common Stock held in the
treasury of the Company.
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(2) In case the Company shall issue rights, options or warrants to
all holders of its Common Stock (not being available on an
equivalent basis to Holders of the Securities upon settlement
of the Purchase Contracts underlying such Securities)
entitling them, for a period expiring within 45 days after the
record date for the determination of stockholders entitled to
receive such rights, options or warrants, to subscribe for or
purchase shares of Common Stock at a price per share less than
the Current Market Price per share of the Common Stock on the
date fixed for the determination of stockholders entitled to
receive such rights, options or warrants (other than pursuant
to a dividend reinvestment plan), the Settlement Rate in
effect at the opening of business on the day following the
date fixed for such determination shall be increased by
dividing such Settlement Rate by a fraction of which the
numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number
of shares of Common Stock so offered for subscription or
purchase would purchase at such Current Market Price and the
denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock
so offered for subscription or purchase, such increase to
become effective immediately after the opening of business on
the day following the date fixed for such determination. For
the purposes of this paragraph (2), the number of shares of
Common Stock at any time outstanding shall not include shares
held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company shall not
issue any such rights, options or warrants in respect of
shares of Common Stock held in the treasury of the Company.
(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 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 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 its Common Stock evidences of its
indebtedness or assets
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(including securities, but excluding any rights or warrants
referred to in paragraph (2) of this Section, any dividend or
distribution paid exclusively in cash and any dividend or
distribution referred to in paragraph (1) of this Section),
the Settlement Rate shall be adjusted so that the same shall
equal the rate determined by dividing the Settlement Rate in
effect immediately prior to the close of business on the date
fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which the numerator
shall be the Current Market Price per share of the Common
Stock on the date fixed for such determination less the then
fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a
Board Resolution filed with the Agent) of the portion of the
assets or evidences of indebtedness so distributed applicable
to one share of Common Stock and the denominator shall be such
Current Market Price per share of the Common Stock, such
adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for
the determination of stock holders entitled to receive such
distribution. In any case in which this paragraph (4) is
applicable, paragraph (2) of this Section shall not be
applicable.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding
any cash that is distributed in a Reorganization Event to
which Section 506(b) applies or as part of a distribution
referred to in paragraph (4) of this Section) in an aggregate
amount that, combined together with (I) the aggregate amount
of any other distributions to all holders of its Common Stock
made exclusively in cash within the 12 months preceding the
date of payment of such distribution and in respect of which
no adjustment pursuant to this paragraph (5) or paragraph (6)
of this Section has been made and (II) the aggregate of any
cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and
described in a Board Resolution) of any non-cash consideration
payable in respect of any tender or exchange offer by the
Company or any of its subsidiaries for all or any portion of
the Common Stock concluded within the 12 months preceding the
date of payment of such distribution and in respect of which
no adjustment pursuant to this paragraph (5) or paragraph (6)
of this Section has been made, exceeds 15% of the product of
the Current Market Price per share of the Common Stock on the
date for the determination of holders of shares of Common
Stock entitled to receive such distribution times the number
of shares of Common Stock outstanding on such date, then, and
in each such case, immediately after the close of business on
such date for determination, the Settlement Rate shall be
increased so that the same shall equal the rate determined by
dividing the Settlement Rate In effect immediately prior to
the close of business on the date fixed for determination of
the stockholders entitled to receive such distribution by a
fraction (i) the numerator of which shall be
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equal to the Current Market Price per share of the Common
Stock on the date fixed for such determination less an amount
equal to the quotient of (x) the excess of such combined
amount over such 15% and (y) the number of shares of Common
Stock outstanding on such date for determination and (ii) the
denominator of which shall be equal to the Current Market
Price per share of the Common Stock on such date for
determination.
(6) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of the Common
Stock shall expire and such tender or exchange offer (as
amended upon the expiration thereof) shall require the payment
to stockholders of an aggregate consideration having a fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution) that combined together with (I) the aggregate of
the cash plus the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive
and described in a Board Resolution), as of the expiration of
the applicable tender or exchange offer, of any non-cash
consideration payable in respect of any other tender or
exchange offer, by the Company or any subsidiary of the
Company for all or any portion of the Common Stock expiring
within the 12 months preceding the expiration of such tender
or exchange offer and in respect of which no adjustment
pursuant to paragraph (5) of this Section or this paragraph
(6) has been made and (II) the aggregate amount of any
distributions to all holders of the Company's Common Stock
made exclusively in cash within the 12 months preceding the
expiration of such tender or exchange offer and in respect of
which no adjustment pursuant to paragraph (5) of this Section
or this paragraph (6) has been made, exceeds 15% of the
product of the Current Market Price per share of the Common
Stock as of the last time (the "Expiration Time") tenders
could have been made pursuant to such tender or exchange offer
(as it may be amended) times the number of shares of Common
Stock outstanding (including any tendered shares) on the
Expiration Time, then, and in each such case, immediately
prior to the opening of business on the day after the date of
the Expiration Time, the Settlement Rate shall be adjusted so
that the same shall equal the rate determined by dividing the
Settlement Rate immediately prior to the close of business on
the date of the Expiration Time by a fraction (i) the
numerator of which shall be equal to (A) the product of (I)
the Current Market Price per share of the Common Stock on the
date of the Expiration Time and (II) the number of shares of
Common Stock outstanding (including any tendered shares) on
the Expiration Time less (B) the amount of cash plus the fair
market value (determined as aforesaid) of the aggregate
[non-cash] consideration payable to stockholders pursuant to
such tender or exchange offer, and (ii) the denominator of
which shall be equal to the product of (A) the Current Market
Price per share of the Common Stock as of the Expiration Time
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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 accepted for payment pursuant to such
tender or exchange offer (the shares deemed so accepted, up to
any such maximum, being referred to as the "Purchased
Shares").
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any
reclassification upon a Reorganization Event to which Section
506(b) applies) shall be deemed to involve (a) a distribution
of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification
shall be deemed to be "the date fixed for the determination of
stockholders entitled to receive such distribution" and the
"date fixed for such determination" within the meaning of
paragraph (4) of this Section), and (b) a subdivision, 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).
(8) The "Current Market Price" per share of Common Stock on any
day means the average of the daily Closing Prices for the 5
consecutive Trading Days selected by the Company commencing
not more than 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 shall be calculated to
the nearest 1/10,000th of a share of Common Stock (or if there
is not a nearest 1/10,000th of a share to the next lower
1/10,000th of a share). No adjustment in the Settlement Rate
shall be required unless such adjustment would require an
increase or decrease of at least one percent therein;
provided, however, that any adjustments which by reason of
this subparagraph are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
If an adjustment is made to the Settlement Rate pursuant to
paragraphs (1), (2), (3), (4), (5), (6), (7) or (10) of this
Section 506(a), an adjustment shall also be made to the
Applicable Market Value solely to determine which of clauses
(a), (b)
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or (c) of the definition of Settlement Rate in Section 501
will apply on the Final Settlement Date. Such adjustment shall
be made by multiplying the Applicable Market Value by a
fraction of which the numerator shall be the Settlement Rate
immediately after such adjustment pursuant to paragraph (1),
(2), (3), (4), (5), (6), (7) or (10) of this Section 506(a)
and the denominator shall be the Settlement Rate immediately
before such adjustment; provided, however, that if such
adjustment to the Settlement Rate is required to be made
pursuant to the occurrence of any of the events contemplated
by paragraphs (1), (2), (3), (4), (5), (7) or (10) of this
Section 506(a) during the period taken into consideration for
determining the Applicable Market Value, appropriate and
customary adjustments shall be made to the Settlement Rate.
(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section, as it considers to
be advisable in order to avoid or diminish any income tax to
any holders of shares of Common Stock resulting from any
dividend or distribution of stock or issuance of rights or
warrants to purchase or subscribe for stock or from any event
treated as such for income tax purposes or for any other
reasons.
(b) ADJUSTMENT FOR CONSOLIDATION, MERGER OR OTHER
REORGANIZATION EVENT. In the event of (i) any consolidation or merger of the
Company, with or into another Person (other than a merger or consolidation in
which the Company is the continuing corporation and in which the Common Stock
outstanding immediately prior to the merger or consolidation is not exchanged
for cash, securities or other property of the Company or another corporation),
(ii) any sale, transfer, lease or conveyance to another Person of the property
of the Company as an entirety or substantially as an entirety, (iii) any
statutory exchange of securities of the Company with another Person (other than
in connection with a merger or acquisition) or (iv) any liquidation, dissolution
or winding up of the Company other than as a result of or after the occurrence
of a Termination Event (any such event, a "Reorganization Event"), the
Settlement Rate will be adjusted to provide that each Holder of Securities will
receive on the Final Settlement Date with respect to each Purchase Contract
forming a part thereof, the kind and amount of securities, cash and other
property receivable upon such Reorganization Event (without any interest
thereon, and without any right to dividends or distributions thereon which have
a record date that is prior to the Final Settlement Date) by a Holder of the
number of shares of Common Stock issuable on account of each Purchase Contract
if the Final Settlement Date had occurred immediately prior to such
Reorganization Event, assuming such Holder of Common Stock is not a Person with
which the Company consolidated or into which the Company merged or which merged
into the Company or to which such sale or transfer was made, as the case may be
("constituent Person"), or an Affiliate of a constituent Person (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 any, as to the kind or amount of securities,
cash and other property
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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 or dissolution of the Company, the Company or a liquidating
trust created in connection therewith, shall execute and deliver to the Agent an
agreement supplemental hereto providing that the Holders of each Outstanding
Security shall have the rights provided by this Section 506. Such supplemental
agreement shall provide for adjustments which, for events subsequent to the
effective date of such supplemental agreement, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section. The above
provisions of this Section shall similarly apply to successive Reorganization
Events.
Section 507. NOTICE OF ADJUSTMENTS AND CERTAIN OTHER EVENTS. (a)
Whenever the Settlement Rate is adjusted as herein provided, the Company shall:
(i) forthwith compute the adjusted Settlement Rate in accordance
with Section 506 and prepare and transmit to the Agent an
Officers' Certificate setting forth the Settlement Rate, the
method of calculation thereof in reasonable detail, and the
facts requiring such adjustment and upon which such adjustment
is based; and
(ii) within 10 Business Days following the occurrence of an event
that permits or requires an adjustment to the Settlement Rate
pursuant to Section 506 (or if the Company is not aware of
such occurrence, as soon as practicable after becoming so
aware), provide a written notice to the Holders of the
Securities of the occurrence of such event and a statement in
reasonable detail setting forth the method by which the
adjustment to the Settlement Rate was determined and setting
forth the adjusted Settlement Rate.
(b) The Agent shall not at any time be under any duty or
responsibility to any holder of Securities to determine whether any facts exist
which may require any adjustment of the Settlement Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed in making the same. The Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at the time
be issued or delivered with respect to any Purchase Contract; and the Agent
makes no representation with respect thereto. The Agent shall not be responsible
for any failure of the Company to issue, transfer or deliver any shares of
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Common Stock pursuant to a Purchase Contract or to comply with any of the
duties, responsibilities or covenants of the Company contained in this Article.
Section 508. TERMINATION EVENT; NOTICE. The Purchase Contracts and the
obligations and rights of the Company and the Holders thereunder, including,
without limitation, the rights of the Holders to receive and the obligation of
the Company to pay any Contract Fees or deferred Contract Fees, shall
immediately and automatically terminate, without the necessity of any notice or
action by any Holder, the Agent or the Company, if, on or prior to the Final
Settlement Date, a Termination Event shall have occurred. Upon the occurrence of
a Termination Event, the Company shall give written notice to the Agent, the
Collateral Agent and to the Holders, at their addresses as they appear in the
Security Register. Upon and after the occurrence of a Termination Event, the
Securities shall thereafter represent the right to receive the Underlying
Securities forming a part of such Securities in accordance with the provisions
of Section 402 and the Pledge Agreement.
Section 509. EARLY SETTLEMENT. (a) Subject to and upon compliance with
the provisions of this Section 509 at the option of the Holder thereof, any
Purchase Contracts underlying Securities having an aggregate Stated Amount equal
to $[1,000] or an integral multiple thereof may be settled early ("Early
Settlement") as provided herein. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts, the Holder of the Security
Certificate evidencing such Purchase Contracts shall deliver such Security
Certificate to the Agent at the Corporate Trust Office duly endorsed for
transfer to the Company or in blank with the form of Election to Settle Early on
the reverse thereof duly completed and accompanied by payment in the form of a
certified or cashier's check payable to the Company in immediately available
funds in an amount (the "Early Settlement Amount") equal to (i) the product of
(A) the Stated Amount times (B) the number of Purchase Contracts with respect to
which the Holder has elected to effect Early Settlement minus (ii) the aggregate
amount of Contract Fees, if any, otherwise payable on or prior to the
immediately preceding Payment Date deferred at the option of the Company
pursuant to Section 503 and remaining unpaid as of such immediately preceding
Payment Date plus (iii) if such delivery is made with respect to any Purchase
Contracts during the period from the close of business on any Record Date next
preceding any Payment Date to the opening of business on such Payment Date, an
amount equal to the sum of (x) the Contract Fees payable on such Payment Date
with respect to such Purchase Contracts plus (y) the interest on the related
Underlying Securities payable on such Payment Date. Except as provided in the
immediately preceding sentence and subject to the [last] paragraph of Section
502, no payment or adjustment shall be made upon Early Settlement of any
Purchase Contract on account of any Contract Fees accrued on such Purchase
Contract or on account of any dividends on the Common Stock issued upon such
Early Settlement. If the foregoing requirements are first satisfied with respect
to Purchase Contracts underlying any Securities at or prior to 5:00 p.m., New
York City time, on a Business Day, such day shall be the "Early Settlement Date"
with respect to such Securities and if such requirements are first satisfied
after 5:00 p.m., New York City time, on a Business Day or on a day that is not a
Business Day, the "Early
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Settlement Date" with respect to such Securities shall be the next succeeding
Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of
the related Securities, the Company shall issue, and the Holder shall be
entitled to receive, a number of shares of Common Stock on account of each
Purchase Contract as to which Early Settlement is effected equal to the Early
Settlement Rate; provided, however, that upon the Early Settlement of the
Purchase Contracts, the Holder of such related Securities will forfeit the right
to receive any deferred Contract Fees. The Early Settlement Rate shall initially
be equal to __________ and shall be adjusted in the same manner and at the same
time as the Settlement Rate is adjusted. As promptly as practicable after Early
Settlement of Purchase Contracts in accordance with the provisions of this
Section 509, the Company shall issue and shall deliver to the Agent at the
Corporate Trust Office a certificate or certificates for the full number of
shares of Common Stock issuable upon such Early Settlement together with payment
in lieu of any fraction of a share, as provided in Section 510.
(c) The Company shall cause the shares of Common Stock
issuable, and Underlying Securities deliverable, upon Early Settlement of
Purchase Contracts to be issued and delivered, in the case of such shares of
Common Stock, and released from the Pledge by the Collateral Agent and
transferred, in the case of such Underlying Securities, to the Purchase Contract
Agent, for delivery to the Holder thereof or its designee, no later than the
third Business Day after the applicable Early Settlement Date.
(d) Upon Early Settlement of any Purchase Contracts, and
subject to receipt thereof from the Company or the Collateral Agent, as
applicable, the Agent shall, in accordance with the instructions provided by the
Holder thereof on the applicable form of Election to Settle Early on the reverse
of the Security Certificate evidencing the related Securities, (i) transfer the
Underlying Securities forming a part of such Securities and (ii) deliver to the
Holder a certificate or certificates for the full number of shares of Common
Stock issuable upon such Early Settlement together with payment in lieu of any
fraction of a share, as provided in Section 510.
(e) In the event that Early Settlement is effected with
respect to Purchase Contracts underlying less than all the Securities evidenced
by a Security Certificate, upon such Early Settlement the Company shall execute
and the Agent shall authenticate, countersign and deliver to the Holder thereof,
at the expense of the Company, a Security Certificate evidencing the Securities
as to which Early Settlement was not effected.
Section 510. NO FRACTIONAL SHARES. No fractional shares or scrip
representing fractional shares of Common Stock shall be issued or delivered upon
settlement on the Final Settlement Date or upon Early Settlement of any Purchase
Contracts. If Security Certificates evidencing more than one Purchase Contract
shall be surrendered for settlement at one time by the same Holder, the number
of full shares of Common Stock
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which shall be delivered upon settlement shall be computed on the basis of the
aggregate number of Purchase Contracts evidenced by the Security Certificates so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the Final
Settlement Date or upon Early Settlement, the Company, through the Agent, shall
make a cash payment in respect of such fractional interest in an amount equal to
the value of such fractional shares at the Closing Price per share on the
Trading Day immediately preceding the Final Settlement Date or the related Early
Settlement Date, respectively. The Company shall provide the Agent from time to
time with sufficient funds to permit the Agent to make all cash payments
required by this Section 510 in a timely manner.
Section 511. CHARGES AND TAXES. The Company will pay all stock transfer
and similar taxes attributable to the initial issuance and delivery of the
shares of Common Stock pursuant to the Purchase Contracts and in payment of any
deferred Contract Fees; provided, however, that the Company shall not be
required to pay any such tax or taxes which may be payable in respect of any
exchange of or substitution for a Security Certificate evidencing a Purchase
Contract or any issuance of a share of Common Stock in a name other than that of
the registered Holder of a Security Certificate surrendered in respect of the
Purchase Contracts evidenced thereby, other than in the name of the Agent, as
custodian for such Holder, and the Company shall not be required to issue or
deliver such share certificates or Security Certificates unless or until the
Person or Persons requesting the transfer or issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the satisfaction
of the Company that such tax has been paid.
ARTICLE SIX
Remedies
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Section 601. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE CONTRACT FEES
AND TO PURCHASE COMMON STOCK. Notwithstanding any other provision in this
Agreement, the Holder of any Security shall have the right, which is absolute
and unconditional (subject to the right of the Company to defer payment thereof
pursuant to Section 503), to receive payment of each installment of the Contract
Fees with respect to the Purchase Contract constituting a part of such Security
on the respective Payment Date for such Security and to purchase Common Stock
pursuant to such Purchase Contract and, in each such case, to institute suit for
the enforcement of any such payment and right to purchase Common Stock, and such
rights shall not be impaired without the consent of such Holder.
Section 602. RESTORATION OF RIGHTS AND REMEDIES. If any Holder of
Securities has instituted any proceeding to enforce any right or remedy under
this Agreement and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company and such
Holder shall be restored
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severally and respectively to their former positions hereunder and thereafter
all rights and remedies of such Holder shall continue as though no such
proceeding had been instituted.
Section 603. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement of mutilated, destroyed, lost or stolen
Security Certificates in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Holders of Securities is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 604. DELAY OR OMISSION NOT WAIVER. No delay or omission of any
Holder to exercise any right or remedy 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 605. UNDERTAKING FOR COSTS. All parties to this Agreement
agree, and each Holder of any Security by his acceptance of the Security
Certificate evidencing such Security shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Agreement, or in any suit against the Agent for any
action taken, suffered or omitted by it as Agent, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
provided that the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Agent, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% of the Outstanding Securities, or to any suit instituted by any Holder
for the enforcement of the payment of the interest on any Underlying Security or
the Contract Fees, if any, on any Purchase Contract on or after the respective
Payment Date therefor constituting a part of the Securities held by such Holder,
or for enforcement of the right to purchase shares of Common Stock under the
Purchase Contracts constituting a part of the Securities held by such Holder.
Section 606. WAIVER OF STAY OR EXTENSION LAWS. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Agreement; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein
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granted to the Agent or the Holders, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SEVEN
The Agent
---------
Section 701. CERTAIN DUTIES AND RESPONSIBILITIES. (a)
(1) The Agent undertakes to perform, with respect to the
Securities, such duties and only such duties as are
specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement
against the Agent; and
(2) in the absence of bad faith or negligence on its part, the
Agent may, with respect to the Securities, conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions
furnished to the Agent and conforming to the requirements of
this Agreement, but in the case of any certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Agent, the Agent shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to
relieve the Agent from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be
proved that the Agent was negligent in ascertaining the
pertinent facts; and
(3) no provision of this Agreement shall require the Agent to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if adequate
indemnity is not provided to it.
(c) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Agent shall be subject to the provisions of
this Section.
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Section 702. NOTICE OF DEFAULT. Within 90 days after the occurrence of
any default by the Company hereunder, of which a Responsible Officer of the
Agent has actual knowledge, the Agent shall transmit by mail to all Holders of
Securities, as their names and addresses appear in the Security Register, notice
of such default hereunder, unless such default shall have been cured or waived.
Section 703. CERTAIN RIGHTS OF AGENT. Subject to the provisions of
Section 701:
(a) the Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate, Issuer
Order or Issuer Request, and any resolution of the Board of Directors
of the Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Agent (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate of the
Company;
(d) the Agent may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Agent, in its discretion, may make
reasonable further inquiry or investigation into such facts or matters
related to the issuance of the Securities and the execution, delivery
and performance of the Purchase Contracts as it may see fit, and, if
the Agent shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
promises of the Company, personally or by agent or attorney; and
(f) the Agent may execute any of its powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care
by it hereunder.
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Section 704. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Security Certificates shall be taken as
the statements of the Company and the Agent assumes no responsibility for their
correctness. The Agent makes no representations as to the validity or
sufficiency of this Agreement or of the Securities. The Agent shall not be
accountable for the use or application by the Company of the proceeds in respect
of the Purchase Contracts.
Section 705. MAY HOLD SECURITIES. Any Security Registrar or any other
agent of the Company, or the Agent, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with the
Company with the same rights it would have if it were not Security Registrar or
such other agent, or the Agent.
Section 706. MONEY HELD IN TRUST. Money held by the Agent in trust
hereunder need not be segregated from the other funds except to the extent
required by law. The Agent shall be under no obligation to invest or pay
interest on any money received by it hereunder except as otherwise agreed with
the Company.
Section 707. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) to pay to the Agent from time to time reasonable compensation
for all services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to reimburse
the Agent upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Agent in
accordance with any provision of this Agreement (including the
reasonable compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Agent and any predecessor Agent for, and to
hold each of them harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of its duties hereunder, including the costs
and expenses of defending itself against any claim or
liability in connection with the exercise or performance of
any of its powers or duties hereunder.
Section 708. CORPORATE AGENT REQUIRED; ELIGIBILITY. There shall at all
times be an Agent hereunder which shall be a corporation organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to exercise corporate trust
powers, having (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
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qualified and eligible under this Article and willing to act on reasonable
terms. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Agent shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 709. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the Agent and no appointment of a successor Agent
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Agent in accordance with the applicable
requirements of Section 710.
(b) The Agent may resign at any time by giving written notice
thereof to the Company 60 days prior to the effective date of such resignation.
If the instrument of acceptance by a successor Agent required by Section 710
shall not have been delivered to the Agent within 30 days after the giving of
such notice of resignation, the resigning Agent may petition any court of
competent jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders
of a majority in number of the Outstanding Securities delivered to the Agent and
the Company.
(d) If at any time
(1) the Agent fails to comply with Section 310(b)
of the TIA, as if the Agent were an indenture
trustee under an indenture qualified under
the TIA, after written request therefor by
the Company or by any Holder who has been a
bona fide Holder of a Security for at least
six months, or
(2) the Agent shall cease to be eligible under
Section 708 and shall fail to resign after
written request therefor by the Company or by
any such Holder, or
(3) the Agent shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or
a receiver of the Agent or of its property
shall be appointed or any public officer
shall take charge or control of the Agent or
of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
agent, or (ii) any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of
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competent jurisdiction for the removal of the Agent and the appointment of a
successor Agent.
(e) If the Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Agent for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Agent and
shall comply with the applicable requirements of Section 710. If no successor
Agent shall have been so appointed by the Company and accepted appointment in
the manner required by Section 710, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor
Agent to give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities as their names
and addresses appear in the Security Register. Each notice shall include the
name of the successor Agent and the address of its Corporate Trust Office.
Section 710. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of the
appointment hereunder of a successor Agent, every such successor Agent so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Agent an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Agent shall become effective and such
successor Agent, without any further act, deed or conveyance, shall become
vested with all the rights, powers, agencies and duties of the retiring Agent;
but, on the request of the Company or the successor Agent, such retiring Agent
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Agent all the rights, powers and trusts of the
retiring Agent and shall duly assign, transfer and deliver to such successor
Agent all property and money held by such retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at
the time of such acceptance such successor Agent shall be qualified and eligible
under this Article.
Section 711. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Agent, shall be the successor of the Agent hereunder, provided such
corporation shall be otherwise qualified and eligible
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under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Security Certificates
shall have been authenticated and executed on behalf of the Holders, but not
delivered, by the Agent then in office, any successor by merger, conversion or
consolidation to such Agent may adopt such authentication and execution and
deliver the Security Certificates so authenticated and executed with the same
effect as if such successor Agent had itself authenticated and executed such
Securities.
Section 712. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Agent shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders received by the Agent in its capacity as
Security Registrar.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Agent, and furnish to the Agent reasonable
proof that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Agreement or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Agent shall, within five Business Days after the receipt of
such application, afford such applicants access to the information preserved at
the time by the Agent in accordance with Section 712(a).
(c) Every Holder of Securities, by receiving and holding the
Security Certificates evidencing the same, agrees with the Company and the Agent
that none of the Company, the Agent nor any agent of any of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 712(b), regardless of
the source from which such information was derived.
Section 713. NO OBLIGATIONS OF AGENT. Except to the extent otherwise
provided in this Agreement, the Agent assumes no obligations and shall not be
subject to any liability under this Agreement or any Purchase Contract in
respect of the obligations of the Holder of any Security thereunder. The Company
agrees, and each Holder of a Security Certificate, by his acceptance thereof,
shall be deemed to have agreed, that the Agent's execution of the Security
Certificates on behalf of the Holders shall be solely as agent and
attorney-in-fact for the Holders, and that the Agent shall have no obligation to
perform such Purchase Contracts on behalf of the Holders, except to the extent
expressly provided in Article Five hereof.
Section 714. TAX COMPLIANCE. (a) The Agent, on its own behalf and on
behalf of the Company, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Securities or
(ii) the issuance, delivery, holding, transfer, redemption or exercise of rights
under the Securities. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of
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all amounts required to be withheld to the appropriate taxing authority or its
designated agent.
(b) The Agent shall comply with any direction received from
the Company with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 701(a)(2) hereof.
(c) The Agent shall maintain all appropriate records
documenting compliance with such requirements, and shall make such records
available on request to the Company or to its authorized representative.
ARTICLE EIGHT
Supplemental Agreements
-----------------------
Section 801. SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Agent, at any time and
from time to time, may enter into one or more agreements supplemental hereto, in
form satisfactory to the Company and the Agent, for any of the following
purposes:
(1) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of
the Company herein and in the Security Certificates; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred
upon the Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent; or
(4) to make provision with respect to the rights of Holders
pursuant to the requirements of Section 506(b); or
(5) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other provisions
herein, or to make any other provisions with respect to such
matters or questions arising under this Agreement, provided
such action shall not adversely affect the interests of the
Holders.
Section 802. SUPPLEMENTAL AGREEMENTS WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority of the Outstanding
Securities, by Act of said Holders delivered to the Company and the Agent, the
Company when authorized by a Board Resolution, and the Agent may enter into an
agreement or agreements supplemental hereto for the purpose of modifying in any
manner the terms of the
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Securities, or the provisions of this Agreement or the rights of the Holders in
respect of the Securities; provided, however, that no such supplemental
agreement shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change any Payment Date;
(2) change the amount or type of Underlying Securities underlying
a Security, impair the right of the Holder of any Security to
receive interest payments on the underlying Underlying
Securities or otherwise adversely affect the Holder's rights
in or to such Underlying Securities;
(3) reduce any Contract Fees or change any place where, or the
coin or currency in which, any Contract Fees 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 Final Settlement Date or
otherwise adversely affect the Holder's rights under any
Purchase Contract; or
(6) reduce the percentage of the Outstanding Securities the
consent of whose Holders is required for any such supplemental
agreement.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 803. EXECUTION OF SUPPLEMENTAL AGREEMENTS. In executing, or
accepting the additional agencies created by, any supplemental agreement
permitted by this Article or the modifications thereby of the agencies created
by this Agreement, the Agent shall be entitled to receive and (subject to
Section 701) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental agreement is authorized or
permitted by this Agreement. The Agent may, but shall not be obligated to, enter
into any such supplemental agreement which affects the Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 804. EFFECT OF SUPPLEMENTAL AGREEMENTS. Upon the execution of
any supplemental agreement under this Article, this Agreement shall be modified
in accordance therewith, and such supplemental agreement shall form a part of
this Agreement for all purposes; and every Holder of Security Certificates
theretofore or thereafter authenticated, executed on behalf of the Holders and
delivered hereunder shall be bound thereby.
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Section 805. REFERENCE TO SUPPLEMENTAL AGREEMENTS. Security
Certificates authenticated, executed on behalf of the Holders and delivered
after the execution of any supplemental agreement pursuant to this Article may,
and shall if required by the Agent, bear a notation in form approved by the
Agent as to any matter provided for in such supplemental agreement. If the
Company shall so determine, new Security Certificates so modified as to conform,
in the opinion of the Agent and the Company, to any such supplemental agreement
may be prepared and executed by the Company and authenticated, executed on
behalf of the Holders and delivered by the Agent in exchange for Outstanding
Security Certificates.
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
Section 901. COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY
PROPERTY EXCEPT UNDER CERTAIN CONDITIONS. The Company covenants that it will not
merge or consolidate with any other Person or sell or convey all or
substantially all of its assets to any Person, except that the Company may merge
or consolidate with, or sell or convey all or substantially all of its assets
to, any other Person, provided that (i) the Company shall be the continuing
corporation, or the successor (if other than the Company) shall be a corporation
organized and existing under the laws of the United States of America or a State
thereof and such corporation shall assume the obligations of the Company under
the Purchase Contracts, this Agreement and the Pledge Agreement by one or more
supplemental agreements in form satisfactory to the Agent and the Collateral
Agent, executed and delivered to the Agent and the Collateral Agent by such
corporation, and (ii) the Company or such successor corporation, as the case may
be, shall not, immediately after such merger of consolidation, or such sale or
conveyance, be in default in the performance of any covenant or condition
hereunder, under any of the Securities or under the Pledge Agreement.
Section 902. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any
such consolidation, merger, sale or conveyance and upon any such assumption by
the successor corporation in accordance with Section 901, such successor
corporation shall succeed to and be substituted for the Company with the same
effect as if it had been named herein as the Company. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of TRW Inc., any or all of the Security Certificates evidencing Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Agent; and, upon the order of such successor corporation,
instead of the Company, and subject to all the terms, conditions and limitations
in this Agreement prescribed, the Agent shall authenticate and execute on behalf
of the Holders and deliver any Security Certificates which previously shall have
been signed and delivered by the officers of the Company to the Agent for
authentication and execution, and any Security Certificate evidencing Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Agent for that purpose. All the Security Certificates so issued
shall in all respects have the same legal rank and benefit under this Agreement
as the Security
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Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Security Certificates had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
change in phraseology and form (but not in substance) may be made in the
Security Certificates evidencing Securities thereafter to be issued as may be
appropriate.
Section 903. OPINION OF COUNSEL TO AGENT. The Agent, subject to
Sections 701 and 703, may receive an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale or conveyance, and any such
assumption, complies with the provisions of this Article and that all conditions
precedent to the consummation of any such consolidation, merger, sale,
assignment, transfer, lease or conveyance have been met.
ARTICLE TEN
Covenants
---------
Section 1001. PERFORMANCE UNDER PURCHASE CONTRACTS. The Company
covenants and agrees for the benefit of the Holders from time to time of the
Securities that it will duly and punctually perform its obligations under the
Purchase Contracts in accordance with the terms of the Purchase Contracts and
this Agreement.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the Borough of Manhattan, The City of New York an office or agency
where Security Certificates may be presented or surrendered for acquisition of
shares of Common Stock upon settlement or Early Settlement and for transfer of
Underlying Securities upon occurrence of a Termination Event, where Security
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Agreement may be served. The Company will give prompt written notice to
the Agent of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Agent with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Company hereby appoints the Agent as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where Security Certificates may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Agent of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates as the place of
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payment for the Securities the Corporate Trust Office and appoints the Agent at
its Corporate Trust Office as paying agent in such city.
Section 1003. COMPANY TO RESERVE COMMON STOCK. The Company shall at all
times prior to the Final Settlement Date reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock the full
number of shares of Common Stock issuable against tender of payment in respect
of all Purchase Contracts constituting a part of the Securities evidenced by
Outstanding Security Certificates.
Section 1004. COVENANTS AS TO COMMON STOCK. The Company covenants that
all shares of Common Stock which may be issued against tender of payment in
respect of any Purchase Contract constituting a part of the Outstanding
Securities will, upon issuance, be duly authorized, validly issued, fully paid
and nonassessable.
Section 1005. STATEMENTS OF OFFICERS OF THE COMPANY AS TO DEFAULT. The
Company will deliver to the Agent, within 120 days after the end of each fiscal
year of the Company ending after the date hereof, an Officers' Certificate,
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
TRW INC.
Attested by By:
----------------------- -------------------------
-----------------------
as Agent
Attested by By:
----------------------- -------------------------
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EXHIBIT A
TRW INC.
[Title of Security]
(Stated Amount $________ per Security)
No. _________ Securities
This Security Certificate certifies that ______________________ is the
registered Holder of the number of Securities set forth above. Each Security
represents ownership by the Holder of [type and description of underlying
security] ("Underlying Securities") with a principal amount equal to the Stated
Amount, subject to the Pledge of such Underlying Securities by such Holder
pursuant to the Pledge Agreement, and the rights and obligations of the Holder
under one Purchase Contract with TRW Inc., an Ohio corporation (the "Company").
Pursuant to the Pledge Agreement, the Underlying Securities
constituting part of each Security evidenced hereby have been pledged to the
Collateral Agent to secure the obligations of the Holder under the Purchase
Contract constituting part of such Security.
The Pledge Agreement provides that all payments of principal of, or
interest on, any Underlying Securities constituting part of the Securities
received by the Collateral Agent shall be paid by the Collateral Agent by wire
transfer in same day funds no later than _____________, New York City time, on
the Business Day such payment is received by the Collateral Agent (provided that
in the event such payment is received by the Collateral Agent on a day that is
not a Business Day or after ______________, New York City time, on a Business
Day, then such payment shall be made no later than _____________, New York City
time, on the next succeeding Business Day) (i) in the case of (A) interest
payments and (B) any principal payments with respect to any Underlying
Securities that have been released from the Pledge pursuant to the Pledge
Agreement, to the Agent to the account designated by it for such purpose and
(ii) in the case of principal payments on any Pledged Underlying Securities (as
defined in the Pledge Agreement), to the Company, in full satisfaction of the
respective obligations of the Holders of the Securities of which such Pledged
Underlying Securities are a part under the Purchase Contracts forming a part of
such Securities. Interest on any Underlying Security forming part of a Security
evidenced hereby which is paid on any _______ or ________, commencing
_____________, _____ (a "Payment Date"), shall, subject to receipt thereof by
the Agent from the Collateral Agent, be paid to the Person in whose name this
Security Certificate (or a Predecessor Security Certificate) is
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registered at the close of business on the Record Date next preceding such
Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Security Certificate to purchase, and the Company to sell, on __________, ____
(the "Final Settlement Date"), at a price equal to $__________ (the "Stated
Amount"), a number of shares of Common Stock, par value $0.625 per share
("Common Stock"), of the Company, equal to the Settlement Rate, unless on or
prior to the Final Settlement Date there shall have occurred a Termination Event
or Early Settlement with respect to the Security of which such Purchase Contract
is a part, all as provided in the Purchase Contract Agreement and more fully
described on the reverse hereof. The purchase price for the shares of Common
Stock purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Final Settlement Date by application of payment
received in respect of the principal of the Underlying Securities pledged to
secure the obligations under such Purchase Contract of the Holder of the
Security of which such Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of a Security evidenced hereby a fee (the
"Contract Fee") equal to _____% per annum of the Stated Amount, from __________,
____, computed on the basis of the actual number of days elapsed in a year of
365 or 366 days, as the case may be, subject to deferral at the option of the
Company as provided in the Purchase Contract Agreement and more fully described
on the reverse hereof. Such Contract Fee shall be payable to the Person in whose
name this Security Certificate (or a Predecessor Security Certificate) is
registered at the close of business on the Record Date next preceding such
Payment Date.
Interest on the Underlying Securities and the Contract Fee will be
payable at the office of the Agent in The City of New York or, at the option of
the Company, by check mailed to the address of the Person entitled thereto as
such address appears on the Security Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Security Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Purchase Contract Agreement or
be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
TRW INC.
By: _____________________________
Attest:
______________________
HOLDER SPECIFIED ABOVE
(as to obligations of such Holder under the
Purchase Contracts evidenced hereby)
By: ________________________,
as Attorney-in-Fact of such Holder
By:________________________________
Dated:
This is one of the Security Certificates referred to in the within mentioned
Purchase Contract Agreement.
______________________
as Agent
By:________________________________
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[Form of Reverse of Security Certificate]
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of __________, ---- (the "Purchase Contract
Agreement"), between the Company and ___________________, as Agent (herein
called the "Agent"), to which Purchase Contract Agreement and supplemental
agreements thereto reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Agent, the Company, and the Holders and of the terms upon which the Security
Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Security Certificate to purchase, and the Company to sell, on the Final
Settlement Date at a price equal to the Stated Amount, a number of shares of
Common Stock of the Company equal to the Settlement Rate, unless, on or prior to
the Final Settlement Date, there shall have occurred a Termination Event or an
Early Settlement with respect to the Security of which such Purchase Contract is
a part. The "Settlement Rate" is equal to (a) if the Applicable Market Value (as
defined below) is greater than $_____ (the "Threshold Appreciation Price"),
_____ shares of Common Stock per Purchase Contract, (b) if the Applicable Market
Value is less than or equal to the Threshold Appreciation Price but is greater
than the Stated Amount, a fractional share of Common Stock per Purchase Contract
equal to the Stated Amount divided by the Applicable Market Value and (c) if the
Applicable Market Amount is less than or equal to the Stated Amount, one share
of Common Stock per Purchase Contract, in each case subject to adjustment as
provided in the Purchase Contract. No fractional shares of Common Stock will be
issued upon settlement of Purchase Contracts, as provided in the Purchase
Contract Agreement.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the twenty consecutive Trading Days ending
on the last Trading Day immediately preceding the Final Settlement Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The Nasdaq Stock Market, or, if the Common Stock is not
so reported, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company. A "Trading
Day" means as a day on which the Common Stock (A) is not suspended from trading
on any national or
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regional securities exchange or association or over-the-counter market at the
close of business and (B) has traded at least once on the national or regional
securities exchange or association or over-the-counter market that is the
primary market for the trading of the Common Stock.
The purchase price for the shares of Common Stock purchased pursuant to
each Purchase Contract shall be paid by application of payments received by the
Company on the Final Settlement Date from the Collateral Agent pursuant to the
Pledge Agreement in respect of the principal of the Underlying Securities
Pledged to secure the obligations of the relevant Holder under such Purchase
Contract. The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment in full of the aggregate purchase
price for the shares of Common Stock to be purchased thereunder in the manner
herein set forth.
Subject to the next succeeding paragraph, the Company shall pay, on
each Payment Date, the Contract Fee payable in respect of each Purchase Contract
to the Person in whose name the Security Certificate evidencing such Purchase
Contract is registered at the close of business on the Record Date next
preceding such Payment Date. Contract Fees will be payable at the office of the
Agent in The City of New York or, at the option of the Company, by check mailed
to the address of the Person entitled thereto at such address as it appears on
the Security Register.
The Company shall have the right, at any time prior to the Final
Settlement Date, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date, but only if the Company shall give the
Holders and the Agent written notice of its election to defer such payment
(specifying the amount to be deferred) as provided in the Purchase Contract
Agreement. Any Contract Fees so deferred shall bear additional Contract Fees
thereon at the rate of _____ per annum (computed on the basis of the actual
number of days elapsed in a year of 365 or 366 days, as the case may be),
compounding on each succeeding Payment Date, until paid in full. Deferred
Contract Fees (and additional Contract Fees accrued thereon) shall be due on the
next succeeding Payment Date except to the extent that payment is deferred
pursuant to the Purchase Contract Agreement. No Contract Fees may be deferred to
a date that is after the Final Settlement Date.
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Contract Fee,
shall immediately and automatically terminate, without the necessity of any
notice or action by any Holder, the Agent or the Company, if, on or prior to the
Final Settlement Date, a Termination Event shall have occurred. Upon the
occurrence of a Termination Event, the Company shall give written notice to the
Agent and to the Holders, at their addresses as they appear in the Security
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Underlying Securities from the Pledge. The Securities
shall thereafter represent the right to receive the Underlying Securities
forming a part of
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such Securities in accordance with the provisions of the Purchase Contract
Agreement and the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement at the option of the Holder thereof, Purchase Contracts
underlying Securities having an aggregate Stated Amount equal to $__________ or
an integral multiple thereof may be settled early ("Early Settlement") as
provided in the Purchase Contract Agreement. In order to exercise the right to
effect Early Settlement with respect to any Purchase Contracts evidenced by this
Security Certificate, the Holder of this Security Certificate shall deliver this
Security Certificate to the Agent at the Corporate Trust Office duly endorsed
for transfer to the Company or in blank with the form of Election to Settle
Early set forth below duly completed and accompanied by payment in the form of a
certified or cashier's check payable to the order of the Company in immediately
available funds in an amount (the "Early Settlement Amount") equal to (i) the
product of (A) the Stated Amount times (B) the number of Purchase Contracts with
respect to which the Holder has elected to effect Early Settlement minus (ii)
the aggregate amount of Contract Fees, if any, otherwise payable on or prior to
the immediately preceding Payment Date deferred at the option of the Company
pursuant to the Purchase Contract Agreement and remaining unpaid as of such
immediately preceding Payment Date plus (iii) if such delivery is made with
respect to any Purchase Contracts during the period from the close of business
on any Record Date next preceding any Payment Date to the opening of business on
such Payment Date, an amount equal to the sum of (x) the Contract Fees payable
on such Payment Date with respect to such Purchase Contracts plus (y) the
interest with respect to the related Underlying Securities payable on such
Payment Date. Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Underlying Securities underlying such Securities shall
be released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive, a number of shares of Common Stock on account of
each Purchase Contract forming part of a Security as to which Early Settlement
is effected equal to the Early Settlement Rate. The Early Settlement Rate shall
initially be equal to __________ and shall be adjusted in the same manner and at
the same time as the Settlement Rate is adjusted as provided in the Purchase
Contract Agreement.
The Security Certificates are issuable only in registered form and only
in denominations of a single Security and any integral multiple thereof. The
transfer of any Security Certificate will be registered and Security
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The Security Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Purchase
Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. For so long as the Purchase Contract underlying
a Security remains in effect, such Security shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Security
in respect of the Underlying Securities and Purchase Contract constituting such
Security may be transferred and exchanged only as a Security.
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Upon registration of transfer of this Security Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Security
Certificate. The Company covenants and agrees, and the Holder, by his acceptance
hereof, likewise covenants and agrees, to be bound by the provisions of this
paragraph.
The Holder of this Security Certificate, by his acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Securities evidenced hereby on his behalf as his
attorney-in-fact, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase Contracts,
consents to the provisions of the Purchase Contract Agreement, authorizes the
Agent to enter into and perform the Pledge Agreement on his behalf as his
attorney-in-fact, and consents to the Pledge of the Underlying Securities
underlying this Security Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect of principal of the Underlying
Securities on the Final Settlement Date shall be paid by the Collateral Agent to
the Company in satisfaction of such Holder's obligations under such Purchase
Contract and such Holder shall acquire no right, title or interest in such
payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of at least a majority
of the Outstanding Securities.
All terms used herein which are defined in the Purchase Contract
Agreement have the meanings set forth therein.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Agent and any agent of the Company or the Agent may
treat the Person in whose name this Security Certificate is registered as the
owner of the Securities evidenced hereby for the purpose of receiving payments
of interest on the Underlying Securities, receiving payments of Contract Fees,
performance of the Purchase Contracts and for all other purposes whatsoever,
whether or not any payments in respect thereof be overdue and notwithstanding
any notice to the contrary, and neither the Company, the Agent nor any such
agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
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A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Agent.
Settlement Instructions
-----------------------
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Final Settlement Date of the
Purchase Contracts underlying the number of Securities evidenced by this
Security Certificate be registered in the name of, and delivered, together with
a check in payment for any fractional share, to the undersigned at the address
indicated below unless a different name and address have been indicated below.
If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated: _____________________ _________________________
Signature
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person other
than the Holder, please print such
Person's name and address:
Please print name and address of Registered Holder:
--------------------------- --------------------------
Name Name
--------------------------- --------------------------
Address Address
--------------------------- --------------------------
--------------------------- --------------------------
Social Security or other
Taxpayer Identification
Number, if any
Election to Settle Early
------------------------
The undersigned Holder of this Security Certificate hereby irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Securities evidenced by this Security Certificate
specified below. The option to effect
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Early Settlement may be exercised only with respect to Purchase Contracts
underlying Securities with an aggregate Stated Amount equal to $________ or an
integral multiple thereof. The undersigned Holder directs that a certificate for
shares of Common Stock deliverable upon such Early Settlement be registered in
the name of, and delivered, together with a check in payment for any fractional
share and any Security Certificate representing any Securities evidenced hereby
as to which Early Settlement of the related Purchase Contracts is not effected,
to the undersigned at the address indicated below unless a different name and
address have been indicated below. Underlying Securities deliverable upon such
Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: _________________ _________________________
Signature
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected: __________.
If shares or Security Certificates are REGISTERED HOLDER
to be registered in the name of and
delivered to and Underlying
Securities are to be transferred to a
Person other than the Holder, please Please print name and address
print such Person's name and address: of Registered Holder:
--------------------------- -----------------------------
Name Name
--------------------------- -----------------------------
Address Address
--------------------------- -----------------------------
--------------------------- -----------------------------
Social Security or other Taxpayer
Identification Number, if any
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Transfer Instructions for Underlying Securities Transferable Upon Early
Settlement or a Termination Event:
----------------------------------------
----------------------------------------
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