EXHIBIT 4.4
PLATINUM UNDERWRITERS HOLDINGS, LTD.
AND
JPMORGAN CHASE BANK,
AS PURCHASE CONTRACT AGENT
PURCHASE CONTRACT AGREEMENT
DATED AS OF , 2002
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions..................................................................................1
SECTION 1.2 Compliance Certificates and Opinions........................................................15
SECTION 1.3 Form of Documents Delivered to Agent........................................................16
SECTION 1.4 Acts of Holders; Record Dates...............................................................17
SECTION 1.5 Notices.....................................................................................18
SECTION 1.6 Notice to Holders; Waiver...................................................................19
SECTION 1.7 Effect of Headings and Table of Contents....................................................20
SECTION 1.8 Successors and Assigns......................................................................20
SECTION 1.9 Separability Clause.........................................................................20
SECTION 1.10 Benefits of Agreement......................................................................20
SECTION 1.11 Governing Law; Jurisdiction................................................................20
SECTION 1.12 Legal Holidays.............................................................................21
SECTION 1.13 Counterparts...............................................................................22
SECTION 1.14 Inspection of Agreement....................................................................22
SECTION 1.15 Appointment of Financial Institution as Agent for the Company..............................22
SECTION 1.16 No Waiver..................................................................................22
ARTICLE II
CERTIFICATE FORMS
SECTION 2.1 Forms of Certificates Generally.............................................................22
SECTION 2.2 Form of Agent's Certificate of Authentication...............................................24
ARTICLE III
THE UNITS
SECTION 3.1 Title and Terms; Denominations..............................................................24
SECTION 3.2 Rights and Obligations Evidenced by the Certificates........................................24
SECTION 3.3 Execution, Authentication, Delivery and Dating..............................................25
SECTION 3.4 Temporary Certificates......................................................................26
SECTION 3.5 Registration; Registration of Transfer and Exchange.........................................27
SECTION 3.6 Book-Entry Interests........................................................................28
SECTION 3.7 Notices to Holders..........................................................................29
SECTION 3.8 Appointment of Successor Clearing Agency....................................................29
SECTION 3.9 Definitive Certificates.....................................................................29
SECTION 3.10 Mutilated, Destroyed, Lost and Stolen Certificates.........................................30
SECTION 3.11 Persons Deemed Owners......................................................................31
SECTION 3.12 Cancellation...............................................................................32
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SECTION 3.13 Establishment of Stripped Units............................................................32
SECTION 3.14 Reestablishment of Normal Units............................................................34
SECTION 3.15 Transfer of Collateral upon Occurrence of Termination Event................................35
SECTION 3.16 No Consent to Assumption...................................................................36
SECTION 3.17 CUSIP Numbers..............................................................................36
ARTICLE IV
THE NOTES
SECTION 4.1 Payment of Interest; Rights to Interest Payments Preserved; Notice..........................36
SECTION 4.2 Notice and Voting...........................................................................37
SECTION 4.3 Tax Event Redemption........................................................................38
SECTION 4.4 Consent to Treatment for Tax Purposes.......................................................38
SECTION 4.5 Prepayment of Notes.........................................................................39
ARTICLE V
THE PURCHASE CONTRACTS; THE REMARKETING
SECTION 5.1 Purchase of Common Shares...................................................................39
SECTION 5.2 Contract Adjustment Payments................................................................41
SECTION 5.3 Deferral of Contract Adjustment Payments....................................................47
SECTION 5.4 Payment of Purchase Price; Remarketing......................................................49
SECTION 5.5 Issuance of Common Shares...................................................................54
SECTION 5.6 Adjustment of Settlement Rate...............................................................55
SECTION 5.7 Notice of Adjustments and Certain Other Events..............................................62
SECTION 5.8 Termination Event; Notice...................................................................63
SECTION 5.9 Early Settlement............................................................................63
SECTION 5.10 Early Settlement Upon Cash Merger..........................................................65
SECTION 5.11 Charges and Taxes..........................................................................67
SECTION 5.12 No Fractional Shares.......................................................................67
ARTICLE VI
REMEDIES
SECTION 6.1 Unconditional Right of Holders to Receive Purchase Contract Adjustment
Payments and Purchase Common Shares......................................................68
SECTION 6.2 Restoration of Rights and Remedies..........................................................68
SECTION 6.3 Rights and Remedies Cumulative..............................................................68
SECTION 6.4 Delay or Omission Not Waiver................................................................69
SECTION 6.5 Undertaking for Costs.......................................................................69
SECTION 6.6 Waiver of Stay or Extension Laws............................................................69
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ARTICLE VII
THE AGENT
SECTION 7.1 Certain Duties and Responsibilities.........................................................69
SECTION 7.2 Notice of Default...........................................................................70
SECTION 7.3 Certain Rights of Agent.....................................................................71
SECTION 7.4 Not Responsible for Recitals or Issuance of Units...........................................72
SECTION 7.5 May Hold Units..............................................................................72
SECTION 7.6 Money Held in Custody.......................................................................72
SECTION 7.7 Compensation and Reimbursement..............................................................72
SECTION 7.8 Corporate Agent Required; Eligibility.......................................................73
SECTION 7.9 Resignation and Removal; Appointment of Successor...........................................73
SECTION 7.10 Acceptance of Appointment by Successor.....................................................75
SECTION 7.11 Merger, Conversion, Consolidation or Succession to Business................................75
SECTION 7.12 Preservation of Information................................................................75
SECTION 7.13 No Obligations of Agent....................................................................76
SECTION 7.14 Tax Compliance.............................................................................76
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
SECTION 8.1 Supplemental Agreements Without Consent of Holders..........................................76
SECTION 8.2 Supplemental Agreements with Consent of Holders.............................................77
SECTION 8.3 Execution of Supplemental Agreements........................................................78
SECTION 8.4 Effect of Supplemental Agreements...........................................................79
SECTION 8.5 Reference to Supplemental Agreements........................................................79
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant Not to Merge, Consolidate, Sell or Convey Property Except
Under Certain Conditions.................................................................79
SECTION 9.2 Rights and Duties of Successor Corporation..................................................79
SECTION 9.3 Opinion of Counsel Given to Agent...........................................................80
ARTICLE X
COVENANTS
SECTION 10.1 Performance Under Purchase Contracts.......................................................80
SECTION 10.2 Maintenance of Office or Agency............................................................80
SECTION 10.3 Company to Reserve Common Shares...........................................................81
SECTION 10.4 Covenants as to Common Shares..............................................................81
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PAGE
EXHIBITS
EXHIBIT A Form of Normal Units Certificate
EXHIBIT B Form of Stripped Units Certificate
EXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
EXHIBIT D Instruction to Purchase Contract Agent
EXHIBIT E Notice to Settle by Separate Cash
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PURCHASE CONTRACT AGREEMENT, dated as of *, 2002, between Platinum
Underwriters Holdings, Ltd., a Bermuda corporation (the "Company"), and JPMorgan
Chase Bank, a
New York banking corporation, acting as purchase contract agent
and attorney-in-fact for the Holders of Units from time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Units.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company and authenticated, executed on behalf
of the Holders and delivered by the Agent, as provided in this Agreement, the
valid obligations of the Company, and to constitute this Agreement a valid
agreement of the Company, in accordance with its terms, have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the Units
by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular, and
nouns and pronouns of the masculine gender include the feminine and neuter
genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision; and
(d) the following terms have the meanings given to them in this
Section 1.1(d):
"Act" when used with respect to any Holder, has the meaning specified
in Section 1.4(a).
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Agent" means the Person named as the "Agent" in the first paragraph
of this Agreement until a successor Agent shall have become such pursuant
to the applicable provisions of this Agreement, and thereafter "Agent"
shall mean such Person.
"Agent-purchased Treasury Consideration" has the meaning specified in
Section 5.4(b)(i).
"Agreement" means this agreement 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 5.1(c).
"Applicants" has the meaning specified in Section 7.12(b).
"Bankruptcy Code" means Title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry Interest, a
Person who is the beneficial owner of such Book-Entry Interest as reflected
on the books of the Clearing Agency or on the books of a Person maintaining
an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with
the rules of such Clearing Agency).
"Board of Directors" means either the Board of Directors of the
Company or the Executive Committee of such Board or any other committee of
such Board duly authorized to act generally or in any particular respect
for the Board hereunder.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or the 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, (ii) a copy of a unanimous written consent of
the Board of Directors or (iii) a certificate signed by the authorized
officer or officers to whom the Board of Directors has delegated its
authority, and in each case, delivered to the Agent.
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"Book-Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 3.6.
"Business Day" means any day that is not a Saturday, Sunday or day on
which banking institutions and trust companies in The City of
New York[ or
in the city where the principal corporate trust office of the Collateral
Agent is located] or at a place of payment are authorized or required by
law, regulation or executive order to close.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interests in (however designated, whether voting or non-voting) corporate
stock or similar interests in other types of entities.
"Cash Merger" has the meaning set forth in Section 5.10(a).
"Cash Merger Date" means the date on which a Cash Merger is
consummated.
"Cash Settlement" has the meaning set forth in Section 5.4(a).
"Certificate" means a Normal Units Certificate or a Stripped Units
Certificate.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the Units and in whose name, or in the name of a nominee of
that organization, shall be registered a Global Certificate and which shall
undertake to effect book-entry transfers and pledges of the Units.
"Clearing Agency Participant" means a broker, dealer, bank, trust
company, clearing corporation, other financial institution or other Person
for whom from time to time the Clearing Agency effects book-entry transfers
and pledges of securities deposited with the Clearing Agency.
"Closing Price" has the meaning specified in Section 5.1(c).
"Collateral" has the meaning specified in Section 2.1(a) of the Pledge
Agreement.
"Collateral Agent" means State Street Bank and Trust Company, a
Massachusetts trust company, 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.
3
"Collateral Substitution" has the meaning specified in Section
3.13(a).
"Common Shares" means the Common Shares, par value $0.01 per share, of
the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this Agreement until a successor shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter
"Company" shall mean such successor.
"Constituent Person" has the meaning specified in Section 5.6(b).
"Contract Adjustment Payments" means, in the case of Normal Units and
Stripped Units, the amount payable by the Company in respect of each
Purchase Contract constituting a part of such Unit, which amount shall be
equal to [ ]% per year of the Stated Amount, in each case computed (i)
for any full quarterly period on the basis of a 360-day year of twelve
30-day months and (ii) for any period shorter than a full quarterly period,
on the basis of a 30-day month, and for periods of less than a month, on
the basis of the actual number of days elapsed per 30-day month, plus any
Deferred Contract Adjustment Payments accrued pursuant to Section 5.3.
"Corporate Trust Office" means the corporate trust office of the Agent
at which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Institutional Trust
Services.
"Coupon Rate" means the percentage rate per annum at which each Note
will bear interest initially.
"Current Market Price" has the meaning specified in Section 5.6(a)(8).
"Custodial Agent" means State Street Bank and Trust Company, a
Massachusetts trust company, as Custodial Agent under the Pledge Agreement
until a successor Custodial Agent shall have become such pursuant to the
applicable provisions of the Pledge Agreement, and thereafter "Custodial
Agent" shall mean the Person who is then the Custodial Agent thereunder.
"Default" means a default by the Company in any of its obligations
under this Agreement.
"Deferred Contract Adjustment Payments" has the meaning specified in
Section 5.3(a).
"Depositary" means, initially, DTC, until another Clearing Agency
becomes its successor.
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"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Early Settlement" has the meaning specified in Section 5.9(a).
"Early Settlement Amount" has the meaning specified in Section 5.9(a).
"Early Settlement Date" has the meaning specified in Section 5.9(a).
"Early Settlement Rate" has the meaning specified in Section 5.9(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.
"Expiration Date" has the meaning specified in Section 1.4(f).
"Expiration Time" has the meaning specified in Section 5.6(a)(6).
"Failed Remarketing" has the meaning specified in Section 5.4(b)(ii).
"Fair Market Value" with respect to securities distributed in a
Spin-Off means (a) in the case of any Spin-Off that is effected
simultaneously with an Initial Public Offering of such securities, the
initial public offering price of those securities and (b) in the case of
any other Spin-Off, (i) the average of the Sale Price of those securities
over the first ten Trading Days after the effective date of such Spin-Off
or (ii) if the Sale Price is required to be defined without regard to the
price on any Trading Days, the Sale Price as of the effective date of such
Spin-Off.
"First Supplemental Indenture" means the First Supplemental Indenture,
dated as of *, 2002, to the Indenture among Platinum Underwriters Finance,
Inc., the Company and the Trustee.
"Global Certificate" means a Certificate that evidences all or part of
the Units and is registered in the name of a Depositary or a nominee
thereof.
"Holder" means the Person in whose name the Unit evidenced by a Normal
Units Certificate and/or a Stripped Units Certificate is registered in the
related Normal Units Register and/or the Stripped Units Register, as the
case may be.
"Indenture" means the Indenture, dated as of *, 2002, among Platinum
Underwriters Finance, Inc., the Company and the Trustee pursuant to which
the Notes are to be issued, as originally executed and delivered and as it
may from time to time be supplemented or amended by one or more indentures
5
supplemental thereto entered into pursuant to the applicable provisions
thereof and shall include the terms of a particular series established as
contemplated thereof.
"Initial Public Offering" with respect to a Spin-Off means the first
time securities of the same class or type as the securities being
distributed in such Spin-Off are bona fide offered to the public for cash.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Company by the Chief Executive Officer, the Chief
Financial Officer, the President, any Vice-President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary (or other
officer performing similar functions) of the Company and delivered to the
Agent.
"Last Failed Remarketing" has the meaning specified in Section
5.4(b)(ii).
"Merger Early Settlement" has the meaning specified in Section
5.10(a).
"Merger Early Settlement Amount" has the meaning specified in Section
5.10(b).
"Merger Early Settlement Date" has the meaning specified in Section
5.10(a)(i).
"Non-electing Share" has the meaning specified in Section 5.6(b).
"Normal Unit" means the collective rights and obligations of a Holder
of a Normal Units Certificate in respect of a 1/40 undivided beneficial
interest in a Note or the appropriate Treasury Consideration, as the case
may be, subject in each case to the Pledge thereof, and the related
Purchase Contract.
"Normal Units Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Normal Units
specified on such certificate, substantially in the form of Exhibit A
hereto.
"Normal Units Register" and "Normal Units Registrar" have the
respective meanings specified in Section 3.5(a).
"Notes" means the *% Senior Guaranteed Notes due * 2007 of Platinum
Underwriters Finance, Inc. issued under the Indenture and guaranteed by the
Company.
"NYSE" has the meaning specified in Section 5.1(c).
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, the Chief Financial Officer, the President or any
Vice-President, and by
6
the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary (or other officer performing similar functions) 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 or an
Affiliate of the Company and who shall be reasonably acceptable to the
Agent.
"Opt-out Treasury Consideration" has the meaning specified in Section
5.4(b)(iv).
"Outstanding Units" means, as of the date of determination, all Normal
Units or Stripped Units evidenced by Certificates theretofore
authenticated, executed and delivered under this Agreement, except:
(i) If a Termination Event has occurred, (A) Stripped Units
and (B) Normal Units for which the related Notes or the appropriate
Treasury Consideration, as the case may be, has been theretofore
deposited with the Agent in trust for the Holders of such Normal
Units;
(ii) Normal Units and Stripped Units evidenced by Certificates
theretofore cancelled by the Agent or delivered to the Agent for
cancellation or deemed cancelled pursuant to the provisions of this
Agreement; and
(iii) Normal Units and Stripped Units evidenced by Certificates
in exchange for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered pursuant
to this Agreement, other than any such Certificate in respect of which
there shall have been presented to the Agent proof satisfactory to it
that such Certificate is held by a protected purchaser in whose hands
the Normal Units or Stripped Units evidenced by such Certificate are
valid obligations of the Company;
provided, that in determining whether the Holders of the requisite number
of the Normal Units or Stripped Units have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Normal Units
or Stripped Units 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
Normal Units or Stripped Units which a Responsible Officer of the Agent
knows to be so owned shall be so disregarded. Normal Units or Stripped
Units so owned which have been pledged in good faith may be regarded as
Outstanding Units if the pledgee establishes to the satisfaction of the
Agent the pledgee's right so to act with respect to such Normal Units or
7
Stripped Units and that the pledgee is not the Company or any Affiliate of
the Company.
"Payment Date" means each *, *, * and *, commencing *, 2002 and ending
on * , 2005.
"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.
"Platinum Underwriters Finance" means Platinum Underwriters Finance,
Inc., a Delaware corporation.
"Pledge" means the pledge under the Pledge Agreement of the Notes, the
Treasury Securities or the appropriate Treasury Consideration, in each case
constituting a part of the Units, property, cash, securities, financial
assets and security entitlements of the Collateral Account (as defined in
the Pledge Agreement) and any proceeds of any of the foregoing.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, by and among the Company, the Collateral Agent, the Custodial
Agent, the Securities Intermediary and the Agent, on its own behalf and as
attorney-in-fact for the Holders from time to time of the Units.
"Pledged Notes" has the meaning set forth in Section 2.1(c) of the
Pledge Agreement.
"Pledged Treasury Consideration" has the meaning set forth in Section
2.1(c) of the Pledge Agreement.
"Pledged Treasury Securities" has the meaning set forth in Section
2.1(c) of the Pledge Agreement.
"Predecessor Certificate" means a Predecessor Normal Units Certificate
or a Predecessor Stripped Units Certificate.
"Predecessor Normal Units Certificate" of any particular Normal Units
Certificate means every previous Normal Units Certificate evidencing all or
a portion of the rights and obligations of the Company and the Holder under
the Normal Units evidenced thereby; and, for the purposes of this
definition, any Normal Units Certificate authenticated and delivered under
Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Normal Units Certificate shall be deemed to evidence the same rights
and obligations of the Company and the Holder as the mutilated, destroyed,
lost or stolen Normal Units Certificate.
8
"Predecessor Stripped Units Certificate" of any particular Stripped
Units Certificate means every previous Stripped Units Certificate
evidencing all or a portion of the rights and obligations of the Company
and the Holder under the Stripped Units evidenced thereby; and, for the
purposes of this definition, any Stripped Units Certificate authenticated
and delivered under Section 3.10 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Stripped Units Certificate shall be deemed to
evidence the same rights and obligations of the Company and the Holder as
the mutilated, destroyed, lost or stolen Stripped Units Certificate.
"Prepayment Event" has the meaning specified in Section 4.5.
"Prepayment Treasury Consideration" means, with respect to a Normal
Unit, a 1/40, or 2.5%, undivided beneficial ownership interest in a
zero-coupon U.S. Treasury security (CUSIP Number *) maturing on *, 2005
that will pay $1,000 on such maturity date.
"Purchase Contract," when used with respect to any Unit, means the
contract forming a part of such Unit and obligating the Company to sell and
the Holder of such Unit to purchase Common Shares on the terms and subject
to the conditions set forth in Article Five.
"Purchase Contract Settlement Fund" has the meaning specified in
Section 5.5.
"Purchase Price" has the meaning specified in Section 5.1(a).
"Purchased Shares" has the meaning specified in Section 5.6(a)(6).
"Quotation Agent" means ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or any of its successors
or any other primary U.S. government securities dealer in
New York City
selected by the Company.
"Record Date" for the payment of a distribution payable on any Payment
Date means, as to any Global Certificate, the Business Day next preceding
such Payment Date, and as to any other Certificate, the 15th calendar day
preceding such Payment Date.
"Redemption Price" means, for each Note, the product of (i) the
principal amount of such Note and (ii) a fraction whose numerator is the
applicable Treasury Portfolio Purchase Price and whose denominator is the
applicable Tax Event Redemption Principal Amount.
9
"Register" means the Normal Units Register and the Stripped Units
Register, as applicable.
"Registrar" means the Normal Units Registrar and the Stripped Units
Registrar, as applicable.
"Remarketing Agent" has the meaning specified in Section 5.4(b)(i).
"Remarketing Agreement" means the Remarketing Agreement to be entered
into by and among the Company, Platinum Underwriters Finance, the
Remarketing Agent and the Agent.
"Remarketing Date" means the third Business Day preceding *, 2005.
"Remarketing Fee" has the meaning specified in Section 5.4(b)(i).
"Remarketing Period" means each of (i) the three Business Day period
beginning on the Remarketing Date and ending after the two immediately
following Business Days; (ii) the three Business Day period immediately
preceding *, 2005; and (iii) the third Business Day immediately preceding
the Share Purchase Date.
"Remarketing Rate" means the percentage rate per year at which each
Note will bear interest on and following the Reset Date.
"Remarketing Value" means the sum of
(i) the value at the Remarketing Date or any Subsequent
Remarketing Date, as the case may be, of U.S. Treasury securities that
will pay, on or prior to the Share Purchase Date, an amount of cash
equal to the interest payment scheduled to be payable on that date on
the Note, assuming for that purpose, even if not true, that the
interest rate on the Note is equal to the Coupon Rate, and
(ii) the value at the Remarketing Date or any Subsequent
Remarketing Date, as the case may be, of U.S. Treasury securities that
will pay, on or prior to the Share Purchase Date, an amount of cash
equal to the Stated Amount of such Note;
provided that for purposes of clauses (i) and (ii) above, the Remarketing
Value shall be calculated on the assumptions that (x) the U.S. Treasury
securities are highly liquid and mature on or within 35 days prior to the
Share Purchase Date, as determined in good faith by the Remarketing Agent
in a manner intended to minimize the cash value of the U.S. Treasury
securities, and (y) the U.S. Treasury securities are valued based on the
ask-side price of such U.S. Treasury securities at a time between 9:00 a.m.
and 11:00 a.m.,
New York City time, selected by the
10
Remarketing Agent, on the Remarketing Date or any Subsequent Remarketing
Date, as the case may be, as determined on a third-day settlement basis by
a reasonable and customary means selected in good faith by the Remarketing
Agent, plus accrued interest to that date.
"Reorganization Event" has the meaning specified in Section 5.6(b).
"Reset Date" means the date following the Remarketing Date or a
Subsequent Remarketing Date, as applicable, on which the trades in a
successful remarketing of the Notes, pursuant to the provisions of Section
5.4, settle.
"Responsible Officer" means, when used with respect to the Agent, any
officer within the Institutional Trust Services unit of the Agent (or any
successor unit or department of the Agent) located at the Corporate Trust
Office of the Agent who has direct responsibility for the administration of
this Agreement and, for the purposes of Section 7.1(b)(2), shall also
include any officer of the Agent to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject.
"Sale Price" of any securities distributed in a Spin-Off on any
Trading Day means the closing sale price per share (or if no closing sale
price is reported, the average of the bid and ask prices or, if more than
one in either case, the average of the average bid and average ask prices)
on such Trading Day as reported in composite transactions for the principal
U.S. securities exchange on which such securities are traded or, if such
securities are not listed on a U.S. national or regional securities
exchange, as reported by the Nasdaq Stock Market, or if such securities are
not so reported, the last quoted bid price for such securities 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 such securities on such date as determined by a nationally
recognized independent investment banking firm retained by the Company for
this purpose.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time, and the rules
and regulations promulgated thereunder.
"Securities Intermediary" means State Street Bank and Trust Company, a
Massachusetts trust company, in its capacity as Securities Intermediary
under the Pledge Agreement, together with its successors in such capacity.
"Senior Indebtedness" means indebtedness of any kind of the Company
unless the instrument under which such indebtedness is incurred expressly
provides that it is in parity or subordinate in right of payment to the
Contract Adjustment Payments.
"Separate Notes" has the meaning set forth in the Pledge Agreement.
11
"Settlement Date" means any Early Settlement Date or Merger Early
Settlement Date or the Share Purchase Date.
"Settlement Rate" has the meaning specified in Section 5.1(a).
"Share Purchase Date" means *, 2005.
"Spin-Off" means a dividend or other distribution on the Common Shares
or shares of Capital Stock of any class or series, or similar equity
interests, of or relating to a subsidiary or other business unit of the
Company.
"Stated Amount" means, with respect to any one Normal Unit or Stripped
Unit, $25, and with respect to any one Note, $1,000.
"Stripped Unit" means the collective rights and obligations of a
Holder of a Stripped Units Certificate in respect of a 1/40 undivided
beneficial interest in a Treasury Security, subject to the Pledge thereof,
and the related Purchase Contract.
"Stripped Units Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Stripped Units
specified on such certificate, substantially in the form of Exhibit B
hereto.
"Stripped Units Register" and "Stripped Units Registrar" have the
respective meanings specified in Section 3.5(a).
"Subsequent Remarketing" has the meaning specified in Section
5.4(b)(ii).
"Subsequent Remarketing Date" means any date during any Remarketing
Period on which the Remarketing Agent attempts a Subsequent Remarketing in
accordance with Section 5.4 hereof.
"Tax Event" means the receipt by the Company of an opinion of a
nationally recognized tax counsel experienced in such matters to the effect
that there is more than an insubstantial risk that interest payable by
Platinum Underwriters Finance on the Notes on the next Payment Date will
not be deductible, in whole or in part, by Platinum Underwriters Finance
for United States federal income tax purposes, as a result of (a) any
amendment to, or change (including any announced proposed change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation
(other than any such amendment, change or announced proposed change to the
so-called "earnings stripping" provisions of Section 163(j) of the Internal
Revenue Code, which limit the ability of U.S. corporations to deduct
interest on certain debt owed to or guaranteed by related foreign persons),
(b) any amendment to or change in an official interpretation or application
of such laws or regulations by any legislative body, court,
12
governmental agency or regulatory authority or (c) any official
interpretation, pronouncement or application that provides for a position
with respect to such laws or regulations that differs from the generally
accepted position on _________, 2002, which amendment, change or proposed
change is effective or which interpretation or pronouncement is announced
on or after __________, 2002.
"Tax Event Redemption" means, if a Tax Event shall occur and be
continuing, the redemption of the Notes, at the option of Platinum
Underwriters Finance, in whole but not in part, on not less than 30 days
nor more than 60 days' prior written notice.
"Tax Event Redemption Date" means the date upon which a Tax Event
Redemption is to occur.
"Tax Event Redemption Principal Amount" means (i) in the case of a Tax
Event Redemption Date occurring prior to a successful remarketing of the
Notes pursuant to Section 5.4 hereof, the aggregate principal amount of
Notes included in Normal Units outstanding on such date, and (ii) in the
case of a Tax Event Redemption Date occurring after either a successful
remarketing of the Notes pursuant to Section 5.4 hereof or the Share
Purchase Date, the aggregate principal amount of the Notes outstanding on
such date.
"Tax Event Redemption Treasury Consideration" means, with respect to a
Normal Unit and the U.S. Treasury securities in the Treasury Portfolio,
(A) a 1/40, or 2.5%, undivided beneficial ownership interest in a $1,000
principal or interest amount of a principal or interest strip in a U.S.
Treasury security included in such Treasury Portfolio which matures on or
prior to the Share Purchase Date and (B) for each scheduled interest
Payment Date on the Notes that occurs after the Tax Event Redemption Date
and on or before the Share Purchase Date a *% undivided beneficial
ownership interest in a $1,000 principal or interest of a principal or
interest strip in a U.S. Treasury security included in the Treasury
Portfolio that matures on or prior to that interest Payment Date.
"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 Share Purchase Date, a
judgment, decree or court order shall have been entered granting
relief under the Bankruptcy Code or any other similar foreign, federal
or state law, adjudicating the Company to be insolvent, or approving
as properly filed a petition seeking reorganization or liquidation of
the Company, and, unless such judgment, decree or order shall have
been entered within 60
13
days prior to the Share Purchase Date, such decree or order shall have
continued undischarged and unstayed for a period of 60 days;
(ii) at any time on or prior to the Share Purchase Date, a
judgment, decree or court order for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of the
Company or of its property substantially in its entirety, or for the
winding up or liquidation of its affairs, shall have been entered,
and, unless such judgment, decree or order shall have been entered
within 60 days prior to the Share Purchase Date, such judgment, 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 Share Purchase Date, the
Company shall file a petition for relief under the Bankruptcy Code or
any other similar foreign, federal or state law, or shall consent to
the filing of a bankruptcy proceeding against it, or shall file a
petition or answer or consent seeking reorganization or liquidation
under the Bankruptcy Code or any other similar foreign, 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 substantially in its entirety, 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
5.1(a).
"TIA" means the Trust Indenture Act of 1939, and any statute successor
thereto, in each case as amended from time to time, and the rules and
regulations promulgated thereunder.
"Trading Day" has the meaning specified in Section 5.1(c).
"Treasury Consideration" means the Agent-purchased Treasury
Consideration, the Opt-out Treasury Consideration, the Prepayment Treasury
Consideration or the Tax Event Redemption Treasury Consideration.
"Treasury Portfolio" means: (i) if a Tax Event Redemption occurs prior
to a successful remarketing of the Notes pursuant to the provisions of
Section 5.4 hereof, a portfolio of (A) zero-coupon U.S. Treasury securities
consisting of principal or interest strips of U.S. Treasury securities that
mature on or prior to the Share Purchase Date in an aggregate amount equal
to the applicable Tax Event Redemption Principal Amount and (B) with
respect to each scheduled interest Payment Date on the Notes that occurs
after the Tax Event Redemption Date and on or before the Share Purchase
Date, interest or principal strips of U.S. Treasury securities that mature
on or prior to such interest Payment Date in an aggregate
14
amount equal to the aggregate interest payment that would be due on the
applicable Tax Event Redemption Principal Amount on such date if the
interest rate of the Notes were not reset on the Reset Date, and (ii)
solely for purposes of determining the Treasury Portfolio Purchase Price in
the case of a Tax Event Redemption Date occurring after either of a
successful remarketing of the Notes or the Share Purchase Date, a portfolio
of (A) zero-coupon U.S. Treasury securities consisting of principal or
interest strips of U.S. Treasury securities that mature on or prior to *,
2007 in an aggregate amount equal to the applicable Tax Event Redemption
Principal Amount and (B) with respect to each scheduled interest Payment
Date on the Notes that occurs after the Tax Event Redemption Date and on or
before *, 2007, interest or principal strips of U.S. Treasury securities
that mature on or prior to such interest Payment Date in an aggregate
amount equal to the aggregate interest payment that would be due on the
applicable Tax Event Redemption Principal Amount.
"Treasury Portfolio Purchase Price" means the lowest aggregate price
quoted by a primary U.S. government securities dealer in
New York City to
the Quotation Agent on the third Business Day immediately preceding the Tax
Event Redemption Date for the purchase of the Treasury Portfolio for
settlement on the Tax Event Redemption Date.
"Treasury Security" means a zero-coupon U.S. Treasury security (CUSIP
Number *) maturing on *, 2005 that will pay $1,000 on such maturity date.
"Trustee" means JPMorgan Chase Bank, a
New York banking corporation,
as trustee under the Indenture and the First Supplemental Indenture, or any
successor thereto.
"Underwriting Agreement" means the Underwriting Agreement relating to
the Units dated *, 2002 among the Company, Platinum Underwriters Finance,
Inc., The St. ▇▇▇▇ Companies, Inc. and the underwriters named therein.
"Unit" means a Normal Unit or a Stripped Unit.
"Vice-President" means any vice-president, whether or not designated
by a number or a word or words added before or after the title
"vice-president."
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Agent to take any action under any
provision of this Agreement, the Company shall furnish to the Agent an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Agreement relating to the proposed action have been complied with and, if
requested by the Agent, an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent, if any, have been complied with,
except that in the case of any such
15
application or request as to which the furnishing of such documents is
specifically required by any provision of this Agreement relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(a) a statement that the individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he or she
has made such examination or investigation as is necessary to enable such
individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such individual
based on his or her knowledge, such condition or covenant has been complied
with.
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO AGENT.
(a) 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.
(b) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
16
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the 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 7.1) 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 in any manner which the Agent deems
sufficient.
(c) The ownership of Units shall be proved by the Normal Units
Register or the Stripped Units Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or suffered to be done
by the Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Units entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Agreement to be given, made or
taken by Holders of Units. If any record date is set pursuant to this
paragraph, the Holders of the Outstanding Normal Units and the Outstanding
Stripped Units, as the case may be, on such record date, and no other
Holders, shall be entitled to take the relevant action with respect to the
Normal Units or the Stripped Units, as the case may be, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite number of Outstanding
17
Units 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 Units 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 Units in the manner set forth
in Section 1.6.
(f) 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
Units in the manner set forth in Section 1.6, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to
any record date set pursuant to this Section, the Company shall be deemed
to have initially designated the 180th day after such record date as the
Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
SECTION 1.5 NOTICES.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Agreement to
be made upon, given or furnished to, or filed with:
(a) the Agent by any Holder or by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered,
mailed, first-class postage prepaid, telecopied or delivered by overnight
air courier guaranteeing next day delivery, addressed to and received by
the Agent at JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Institutional Trust Services, telecopy: (212)
946-8154, or at any other address furnished in writing by the Agent to the
Holders and the Company; or
(b) the Company by the Agent or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered,
mailed, first-class postage prepaid, telecopied or delivered by overnight
air courier guaranteeing at least second day delivery, addressed to and
received by the Company at Platinum
18
Underwriters Holdings, Ltd. *, Attention: *, telecopy: *, or at any other
address furnished in writing to the Agent by the Company; or
(c) the Collateral Agent by the Agent, the Company or 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, mailed, first-class postage prepaid, telecopied or
delivered by overnight air courier guaranteeing next day delivery,
addressed to and received by the Collateral Agent at State Street Bank and
Trust Company, ▇▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration, telecopy: (▇▇▇) ▇▇▇-▇▇▇▇, or at
any other address furnished in writing by the Collateral Agent to the
Agent, the Company and the Holders; or
(d) the Trustee 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, mailed, first-class
postage prepaid, telecopied or delivered by overnight air courier
guaranteeing next day delivery, addressed to and received by the Trustee at
JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Institutional Trust Services, telecopy: (▇▇▇) ▇▇▇-▇▇▇▇, or at
any other address furnished in writing by the Trustee to the Company.
SECTION 1.6 NOTICE TO HOLDERS; WAIVER.
(a) Where this Agreement provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at its address as it appears in the
applicable Register, not later than the latest date, and not earlier than
the earliest date, 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.
(b) 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.
19
SECTION 1.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.8 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.9 SEPARABILITY CLAUSE.
If any provision hereof is invalid and unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in order to carry out the intentions of the parties
hereto as nearly as may be possible and (ii) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
SECTION 1.10 BENEFITS OF AGREEMENT.
Nothing in this Agreement or in the Units, 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 Units evidenced by their Certificates by
their acceptance of delivery of such Certificates.
SECTION 1.11 GOVERNING LAW; JURISDICTION.
(a) This Agreement and the Units shall be governed by, deemed to be a
contract under, and construed in accordance with, the laws of the State of
New York, without regard to the conflicts of laws principles thereof.
(b) The Company irrevocably (i) agrees that any legal suit, action or
proceeding against it arising out of or based on this Agreement or the
transactions contemplated hereby or the Units may be instituted in any
United States Federal or State court in the Borough of Manhattan, The City
of
New York (a "
New York Court"), (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding, and (iii) submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company irrevocably waives any immunity to jurisdiction to
which it may otherwise be entitled or become entitled (including sovereign
immunity, immunity to pre-judgment attachment, post-judgment attachment and
execution) in any legal suit, action or proceeding against it arising out
of or based on this Agreement or the transactions contemplated hereby or
the
20
Units which is instituted in any
New York Court or in any foreign court. To
the fullest extent permitted by law, the Company hereby waives any
objection to the enforcement by competent foreign court of any judgment
validly obtained in any such proceeding. The Company designates and
appoints CT Corporation System in New York City as its authorized agent
(the "Authorized Agent") upon which process may be served in any such
action arising out of or based on this Agreement or the transactions
contemplated hereby or the Units which may be instituted in any New York
Court, expressly consents to the jurisdiction of any such court in respect
of any such action, and waives any other requirements of or objections to
personal jurisdiction with respect thereto. Such appointment shall be
irrevocable. The Company represents and warrants that its Authorized Agent
has agreed to act as such agent for service of process and the Company
agrees to take any and all action, including the filing of any and all
documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon
the Authorized Agent and written notice of such service of process to the
Company shall be deemed, in every respect, effective service of process
upon the Company.
SECTION 1.12 LEGAL HOLIDAYS.
(a) In any case where any Payment Date shall not be a Business Day,
then (notwithstanding any other provision of this Agreement or the Normal
Units Certificates) payments on the Notes shall not be made on such date,
but such payments shall be made on the next succeeding day which is a
Business Day with the same force and effect as if made on such Payment
Date, provided that no interest shall accrue or be payable by the Company
in respect of such payment for the period from and after any such Payment
Date, except that if such next succeeding Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day with the same force and effect as if made on such
Payment Date.
(b) If any date on which Contract Adjustment Payments are to be made
on the Purchase Contracts is not a Business Day, then payment of the
Contract Adjustment Payments payable on that date will be made on the next
succeeding day which is a Business Day, and no interest or additional
payment will be paid in respect of the delay. However, if that Business Day
is in the next succeeding calendar year, the payment will be made on the
immediately preceding Business Day with the same force and effect as if
made on that Payment Date.
(c) In any case where the Share Purchase Date shall not be a Business
Day, then (notwithstanding any other provision of this Agreement or the
Certificates), the Purchase Contracts shall not be performed on such date,
but the Purchase Contracts shall be performed on the next succeeding day
which is a
21
Business Day with the same force and effect as if performed on the Share
Purchase Date.
SECTION 1.13 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such counterpart.
SECTION 1.14 INSPECTION OF AGREEMENT.
A copy of this Agreement shall be available at all reasonable times
during normal business hours at the Corporate Trust Office for inspection by any
Holder.
SECTION 1.15 APPOINTMENT OF FINANCIAL INSTITUTION AS AGENT FOR THE
COMPANY.
The Company may appoint a financial institution (which may be the
Collateral Agent) to act as its agent in performing its obligations and in
accepting and enforcing performance of the obligations of the Agent and the
Holders, under this Agreement and the Purchase Contracts, by giving notice of
such appointment in the manner provided in Section 1.5 hereof. Any such
appointment shall not relieve the Company in any way from its obligation
hereunder.
SECTION 1.16 NO WAIVER.
No failure on the part of the Company, the Agent, the Collateral
Agent, the Securities Intermediary or any of their respective agents to
exercise, and no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by the Company, the Agent, the Collateral
Agent, the Securities Intermediary or any of their respective agents of any
right, power or remedy hereunder preclude any further exercise thereof or the
exercise of any right, power or remedy. The remedies herein are cumulative and
are not exclusive of any remedies provided by law.
ARTICLE II
CERTIFICATE FORMS
SECTION 2.1 FORMS OF CERTIFICATES GENERALLY.
(a) The Normal Units Certificates (including the form of Purchase
Contract forming part of the Normal Units 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
22
securities exchange or quotation system on which the Normal Units are
listed or quoted for trading or any depositary therefor, or as may,
consistently herewith, be determined by the officers of the Company
executing such Normal Units Certificates, as evidenced by their execution
of the Normal Units Certificates.
(b) The definitive Normal Units 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 such Normal Units Certificates, consistent with the provisions of
this Agreement, as evidenced by their execution thereof.
(c) The Stripped Units Certificates (including the form of Purchase
Contracts forming part of the Stripped Units evidenced thereby) shall be in
substantially the form set forth in Exhibit B hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required
by the rules of any securities exchange or the quotation system on which
the Stripped Units may be listed or quoted for trading or any depositary
therefor, or as may, consistently herewith, be determined by the officers
of the Company executing such Stripped Units Certificates, as evidenced by
their execution of the Stripped Units Certificates.
(d) The definitive Stripped Units 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 such Stripped Units Certificates, consistent with the provisions
of this Agreement, as evidenced by their execution thereof.
(e) Every Global Certificate authenticated, executed on behalf of the
Holders and delivered hereunder shall bear a legend in substantially the
following form:
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT (AS DEFINED ON THE REVERSE HEREOF) AND IS
REGISTERED IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF.
THIS CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS CERTIFICATE IN WHOLE
OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE
PURCHASE CONTRACT AGREEMENT.
[Unless this Certificate is presented by an authorized representative
of the Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇)
to
23
the Company or its agent for registration or transfer, exchange or
payment, and any Certificate issued is registered in the name of Cede
& Co., or such other name as requested by an authorized representative
of the Depository Trust Company, and any payment hereon is made to
Cede & Co., ANY TRANSFER PLEDGE OR OTHER USE HEREOF OR OTHERWISE BY A
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has
an interest herein.]"
SECTION 2.2 FORM OF AGENT'S CERTIFICATE OF AUTHENTICATION.
(a) The form of the Agent's certificate of authentication of the
Normal Units shall be in substantially the form set forth on the form of
the Normal Units Certificates.
(b) The form of the Agent's certificate of authentication of the
Stripped Units shall be in substantially the form set forth on the form of
the Stripped Units Certificates.
ARTICLE III
THE UNITS
SECTION 3.1 TITLE AND TERMS; DENOMINATIONS.
(a) The aggregate number of Normal Units and Stripped Units, if any,
evidenced by Certificates authenticated, executed on behalf of the Holders
and delivered hereunder is limited to 5,000,000 (5,750,000 if the
underwriters' option to purchase additional Normal Units pursuant to the
Underwriting Agreement is exercised in full), except for Certificates
authenticated, executed on behalf of the Holder and delivered upon
registration of transfer of, in exchange for, or in lieu of, other
Certificates pursuant to Section 3.4, 3.5, 3.10, 3.13, 3.14, 5.9(e),
5.10(e) or 8.5.
(b) The Certificates shall be issuable only in registered form and
only in denominations of a single Unit and any integral multiple thereof.
SECTION 3.2 RIGHTS AND OBLIGATIONS EVIDENCED BY THE CERTIFICATES.
(a) Each Normal Units Certificate shall evidence the number of Normal
Units specified therein, with each such Normal Unit representing the
ownership by the Holder thereof of a 1/40 undivided beneficial interest in
a Note or the appropriate Treasury Consideration, as the case may be,
subject to the Pledge of such interest in the Note or the Treasury
Consideration, as the case may be, by such Holder pursuant to the Pledge
Agreement, and the rights and obligations of the Holder thereof and the
Company under one Purchase Contract. The Agent as attorney-in-fact for, and
on behalf of, the Holder of each Normal
24
Unit shall pledge, pursuant to the Pledge Agreement, the interest in the
Note or the Treasury Consideration forming a part of such Normal Unit, to
the Collateral Agent and grant to the Collateral Agent a security interest
in the right, title, and interest of such Holder in such interest in the
Note or Treasury Consideration for the benefit of the Company, to secure
the obligation of such Holder under the related Purchase Contract to
purchase the Common Shares of the Company.
(b) Each Stripped Units Certificate shall evidence the number of
Stripped Units specified therein, with each such Stripped Unit representing
the ownership by the Holder thereof of a 1/40 undivided beneficial interest
in a Treasury Security, subject to the Pledge of such interest in such
Treasury Security by such Holder pursuant to the Pledge Agreement, and the
rights and obligations of the Holder thereof and the Company under one
Purchase Contract. The Agent as attorney-in-fact for, and on behalf of, the
Holder of each Stripped Unit shall pledge, pursuant to the Pledge
Agreement, the interest in the Treasury Security forming a part of such
Stripped Unit, to the Collateral Agent and grant to the Collateral Agent a
security interest in the right, title, and interest of such Holder in such
interest in the Treasury Security for the benefit of the Company, to secure
the obligation of such Holder under the related Purchase Contract to
purchase the Common Shares of the Company.
(c) Prior to the purchase of Common Shares under each Purchase
Contract, such Purchase Contract shall not entitle the Holder of the
related Units Certificates to any of the rights of a holder of Common
Shares, including, without limitation, the right to vote or receive any
dividends or other payments or to consent or to receive notice as a
shareholder in respect of the meetings of shareholders or for the election
of directors of the Company or for any other matter, or any other rights
whatsoever as a shareholder of the Company.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) Subject to the provisions of Sections 3.13 and 3.14, upon the
execution and delivery of this Agreement, and at any time and from time to
time thereafter, the Company may deliver Certificates executed by the
Company to the Agent for authentication, execution on behalf of the Holders
and delivery, together with its Issuer Order for authentication of such
Certificates, and the Agent in accordance with such Issuer Order shall
authenticate, execute on behalf of the Holders and deliver such
Certificates.
(b) The Certificates shall be executed on behalf of the Company by
the Chief Executive Officer, the Chief Financial Officer, the President,
any Vice-President, the Treasurer, any Assistant Treasurer, the Secretary
or any Assistant Secretary (or other officer performing similar functions)
of the Company and delivered to the Agent. The signature of any of these
officers on the Certificates may be manual or facsimile.
25
(c) 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 Certificates or did not hold such offices at the date of such
Certificates.
(d) No Purchase Contract evidenced by a Certificate shall be valid
until such Certificate has been executed on behalf of the Holder by the
manual signature of an authorized officer of the Agent, as such Holder's
attorney-in-fact. Such signature by an authorized officer of the Agent
shall be conclusive evidence that the Holder of such Certificate has
entered into the Purchase Contract or Purchase Contracts evidenced by such
Certificate.
(e) Each Certificate shall be dated the date of its authentication.
(f) No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on
such Certificate a certificate of authentication substantially in the form
provided for herein executed by an authorized officer of the Agent by
manual signature, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been
duly authenticated and delivered hereunder.
SECTION 3.4 TEMPORARY CERTIFICATES.
(a) Pending the preparation of definitive 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
Certificates, temporary Certificates which are in substantially the form
set forth in Exhibit A or Exhibit B hereto, as the case may be, with such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the Normal Units
or Stripped Units, as the case may be, are listed or quoted for trading or
any depositary transfer, or as may, consistently herewith, be determined by
the officers of the Company executing such Certificates, as evidenced by
their execution of the Certificates.
(b) If temporary Certificates are issued, the Company will cause
definitive Certificates to be prepared without unreasonable delay. After
the preparation of definitive Certificates, the temporary Certificates
shall be exchangeable for definitive Certificates upon surrender of the
temporary Certificates at the Corporate Trust Office, at the expense of the
Company and without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Certificates, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf
of the Holder, and deliver in exchange therefor, one or more definitive
Certificates of like tenor and
26
denominations and evidencing a like number of Normal Units or Stripped
Units, as the case may be, as the temporary Certificate or Certificates so
surrendered. Until so exchanged, the temporary Certificates shall in all
respects evidence the same benefits and the same obligations with respect
to the Normal Units or Stripped Units, as the case may be, evidenced
thereby as definitive Certificates.
SECTION 3.5 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Agent shall keep at the Corporate Trust Office a register
(the "Normal Units Register") in which, subject to such reasonable
regulations as it may prescribe, the Agent shall provide for the
registration of Normal Units Certificates and of transfers of Normal Units
Certificates (the Agent, in such capacity, the "Normal Units Registrar")
and a register (the "Stripped Units Register") in which, subject to such
reasonable regulations as it may prescribe, the Agent shall provide for the
registration of the Stripped Units Certificates and transfers of Stripped
Units Certificates (the Agent, in such capacity, the "Stripped Units
Registrar").
(b) Upon surrender for registration of transfer of any 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 one or more new
Certificates of like tenor and denominations, registered in the name of the
designated transferee or transferees, and evidencing a like number of
Normal Units or Stripped Units, as the case may be.
(c) At the option of the Holder, Certificates may be exchanged for
other Certificates, of like tenor and denominations and evidencing a like
number of Normal Units or Stripped Units, as the case may be, upon
surrender of the Certificates to be exchanged at the Corporate Trust
Office. Whenever any Certificates are so surrendered for exchange, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver the Certificates
which the Holder making the exchange is entitled to receive.
(d) All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same number
of Normal Units or Stripped Units, as the case may be, and be entitled to
the same benefits and subject to the same obligations, under this Agreement
as the Normal Units or Stripped Units, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
(e) Every Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Agent)
be duly endorsed, or be accompanied by a written instrument of transfer in
form
27
satisfactory to the Company and the Agent duly executed by the Holder
thereof or its attorney duly authorized in writing.
(f) No service charge shall be made for any registration of transfer
or exchange of a 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 Certificates, other than any exchanges pursuant
to Sections 3.6, 3.9 and 8.5 not involving any transfer.
(g) 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
Certificate presented or surrendered for registration of transfer or for
exchange on or after the Business Day immediately preceding the earlier of
the Share Purchase Date or the Termination Date. In lieu of delivery of a
new Certificate, upon satisfaction of the applicable conditions specified
above in this Section and receipt of appropriate registration or transfer
instructions from such Holder, the Agent shall,
(i) if the Share Purchase Date has occurred, deliver the
Common Shares issuable in respect of the Purchase Contracts forming a
part of the Units evidenced by such Certificate,
(ii) in the case of Normal Units, if a Termination Event shall
have occurred prior to the Share Purchase Date, transfer the Notes or
the appropriate Treasury Consideration, as applicable, relating to
such Normal Units, or
(iii) in the case of Stripped Units, if a Termination Event
shall have occurred prior to the Share Purchase Date, transfer the
Treasury Securities relating to such Stripped Units,
in each case subject to the applicable conditions and in accordance with
the applicable provisions of Article V.
SECTION 3.6 BOOK-ENTRY INTERESTS.
The Certificates, on original issuance, will be issued in the form of
one or more fully registered Global Certificates, to be delivered to the
Depositary or a nominee or custodian thereof by, or on behalf of, the Company.
Such Global Certificate shall initially be registered on the books and records
of the Company in the name of Cede & Co., the nominee of the Depositary, and no
Beneficial Owner will receive a definitive Certificate representing such
Beneficial Owner's interest in such Global Certificate, except as provided in
Section 3.9. The Agent shall enter into a customary agreement with the
Depositary if so requested by the Company. Unless and until definitive, fully
registered Certificates have been issued to Beneficial Owners pursuant to
Section 3.9:
28
(a) the provisions of this Section 3.6 shall be in full force and
effect;
(b) the Company and the Agent shall be entitled to deal with the
Clearing Agency for all purposes of this Agreement (including the payment
of Contract Adjustment Payments, if any, and receiving approvals, votes or
consents hereunder) as the Holder of the Units and the sole holder of the
Global Certificate(s) and shall have no obligation to the Beneficial
Owners;
(c) to the extent that the provisions of this Section 3.6 conflict
with any other provisions of this Agreement or any Certificate, the
provisions of this Section 3.6 shall control; and
(d) the rights of the Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Beneficial Owners and the Clearing Agency
and/or the Clearing Agency Participants.
The Clearing Agency will make book-entry transfers among Clearing
Agency Participants and receive and transmit payments of Contract Adjustment
Payments to such Clearing Agency Participants.
SECTION 3.7 NOTICES TO HOLDERS.
Whenever a notice or other communication to the Holders is required to
be given under this Agreement, the Company or the Company's agent shall give
such notices and communications to the Holders and, with respect to any Units
registered in the name of a Clearing Agency or the nominee of a Clearing Agency,
the Company or the Company's agent shall, except as set forth herein, have no
obligations to the Beneficial Owners.
SECTION 3.8 APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Units, the Company may, in its sole
discretion, appoint a successor Clearing Agency with respect to the Units.
SECTION 3.9 DEFINITIVE CERTIFICATES.
If
(i) a Clearing Agency notifies the Company that it is
unwilling or unable to continue its services as securities depositary
with respect to the Units and a successor Clearing Agency is not
appointed within 90 days after such discontinuance pursuant to
Section 3.8,
29
(ii) the Company elects to terminate the book-entry system
arrangements through the Clearing Agency with respect to the Units, or
(iii) there shall have occurred and be continuing a default by
the Company in respect of its obligations under one or more Purchase
Contracts,
then upon surrender of the Global Certificates representing the Book-Entry
Interests with respect to the Units by the Clearing Agency, accompanied by
registration instructions, the Company shall cause definitive Certificates to be
delivered to Beneficial Owners in accordance with the instructions of the
Clearing Agency. The Company shall not be liable for any delay in delivery of
such instructions and may conclusively rely on and shall be protected in relying
on, such instructions.
SECTION 3.10 MUTILATED, DESTROYED, LOST AND STOLEN CERTIFICATES.
(a) If any mutilated 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 Certificate at the cost of the Holder, evidencing the same
number of Normal Units or Stripped Units, as the case may be, and bearing a
Certificate number not contemporaneously outstanding.
(b) If there shall be delivered to the Company and the Agent (i)
evidence to their satisfaction of the destruction, loss or theft of any
Certificate, and (ii) such security or indemnity at the cost of the Holder
as may be required by them to hold each of them and any agent of either of
them harmless, then, in the absence of notice to the Company or to a
Responsible Officer of the Agent that such Certificate has been acquired by
a protected 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
Certificate, a new Certificate, evidencing the same number of Normal Units
or Stripped Units, as the case may be, and bearing a Certificate number not
contemporaneously outstanding.
(c) 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 Certificate on or after the Business Day immediately preceding
the earlier of the Share Purchase Date or the Termination Date. In lieu of
delivery of a new Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Agent shall
30
(i) if the Share Purchase Date has occurred, deliver the
Common Shares issuable in respect of the Purchase Contracts forming a
part of the Units evidenced by such Certificate,
(ii) in the case of Normal Units, if a Termination Event shall
have occurred prior to the Share Purchase Date, transfer the Notes or
the appropriate Treasury Consideration, as applicable, relating to
such Normal Units, or
(iii) in the case of Stripped Units, if a Termination Event
shall have occurred prior to the Share Purchase Date, transfer the
Treasury Securities relating to such Stripped Units,
in each case subject to the applicable conditions and in accordance with
the applicable provisions of Article V.
(d) Upon the issuance of any new Certificate under this Section, the
Company and the Agent may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Agent) connected therewith.
(e) Every new Certificate issued pursuant to this Section in lieu of
any destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder in
respect of the Unit evidenced thereby, whether or not the destroyed, lost
or stolen Certificate (and the Units evidenced thereby) shall be at any
time enforceable by anyone, and shall be entitled to all the benefits and
be subject to all the obligations of this Agreement equally and
proportionately with any and all other Certificates delivered hereunder.
(f) The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Certificates.
SECTION 3.11 PERSONS DEEMED OWNERS.
(a) Prior to due presentment of a 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 Certificate is registered on
the Register as the owner of the Units evidenced thereby, for the purpose
of receiving quarterly payments on the Notes or Treasury Consideration,
receiving payment of Contract Adjustment Payments, if any, and any Deferred
Contract Adjustment Payments, performance of the Purchase Contracts and for
all other purposes whatsoever, whether or not any such payments shall be
overdue and notwithstanding any
31
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.
(b) Notwithstanding the foregoing, with respect to any Global
Certificate, nothing herein shall prevent the Company, the Agent or any
agent of the Company or the Agent, from treating the Clearing Agency as the
sole Holder of such Global Certificate or from giving effect to any written
certification, proxy or other authorization furnished by any Clearing
Agency (or its nominee), as a Holder of such Global Certificate, with
respect to such Global Certificate or impair, as between such Clearing
Agency and owners of beneficial interests in such Global Certificate, the
operation of customary practices governing the exercise of rights of such
Clearing Agency (or its nominee) as a Holder of such Global Certificate.
SECTION 3.12 CANCELLATION.
(a) All Certificates surrendered (i) for delivery of Common Shares on
or after any Settlement Date; (ii) upon the transfer of Notes or Treasury
Consideration or Treasury Securities, as the case may be, after the
occurrence of a Termination Event or pursuant to an Early Settlement or
Merger Early Settlement, or a Collateral Substitution or an establishment
or re-establishment of a Normal Unit; or (iii) upon the registration of a
transfer or exchange of a Unit 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 Certificates previously authenticated,
executed on behalf of the Holder and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Certificates so
delivered shall, upon Issuer Order, be promptly cancelled by the Agent. No
Certificates shall be authenticated, executed on behalf of the Holder and
delivered in lieu of or in exchange for any Certificates cancelled as
provided in this Section, except as expressly permitted by this Agreement.
All cancelled Certificates held by the Agent shall be disposed of by the
Agent in accordance with its then customary procedures.
(b) If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Agent
cancelled or for cancellation.
SECTION 3.13 ESTABLISHMENT OF STRIPPED UNITS.
(a) A Holder may separate the Pledged Notes or Pledged Treasury
Consideration (other than Prepayment Treasury Consideration), as
applicable, from the related Purchase Contracts in respect of the Normal
Units held by such Holder by substituting for such Pledged Notes or Pledged
Treasury Consideration, as the case may be, Treasury Securities that will
pay at the Share Purchase Date
32
an amount equal to the aggregate Stated Amount of such Normal Units (a
"Collateral Substitution"), at any time from and after the date of this
Agreement and on or prior to the second Business Day immediately preceding
the Share Purchase Date, by (i) depositing with the Collateral Agent
Treasury Securities having an aggregate principal amount equal to the
aggregate Stated Amount of such Normal Units, and (ii) transferring the
related Normal Units to the Agent accompanied by a notice to the Agent,
substantially in the form of Exhibit D hereto, stating that the Holder has
transferred the relevant amount of Treasury Securities to the Collateral
Agent and requesting that the Agent instruct the Collateral Agent to
release the Pledged Notes or Pledged Treasury Consideration, as the case
may be, underlying such Normal Units, whereupon the Agent shall promptly
give such instruction to the Collateral Agent, substantially in the form of
Exhibit C hereto. Notwithstanding the foregoing, a Holder may not separate
the Pledged Notes or Pledged Treasury Consideration from the related
Purchase Contracts in respect of the Normal Units held by such Holder
during the periods beginning on the fourth Business Day prior to the first
day of any Remarketing Period and ending on the third Business Day after
the end of such Remarketing Period. Upon receipt of the Treasury Securities
described in clause (i) above and the instruction described in clause (ii)
above, in accordance with the terms of the Pledge Agreement, the Collateral
Agent will release to the Agent, on behalf of the Holder, such Pledged
Notes or Pledged Treasury Consideration from the Pledge, free and clear of
the Company's security interest therein, and upon receipt thereof the Agent
shall promptly:
(x) cancel the related Normal Units;
(y) transfer the Pledged Notes or Pledged Treasury
Consideration, as the case may be, to the Holder; and
(z) authenticate, execute on behalf of such Holder and
deliver a Stripped Units Certificate executed by the Company in
accordance with Section 3.3 evidencing the same number of Purchase
Contracts as were evidenced by the cancelled Normal Units.
(b) Holders who elect to separate the Pledged Notes or Pledged
Treasury Consideration, as the case may be, from the related Purchase
Contract and to substitute Treasury Securities for such Pledged Notes or
Pledged Treasury Consideration shall be responsible for any fees or
expenses payable to the Collateral Agent for its services as Collateral
Agent in respect of the substitution, and the Company shall not be
responsible for any such fees or expenses.
(c) Holders may make Collateral Substitutions (i) if Treasury
Securities are being substituted for Pledged Notes, only in integral
multiples of 40 Normal Units, or (ii) if the Collateral Substitutions occur
after a successful remarketing of the Notes pursuant to the provisions of
Section 5.4 or after a Tax
33
Event Redemption, as the case may be, only in integral multiples of Normal
Units such that the Treasury Securities to be deposited and the Treasury
Consideration to be released are in integral multiples of $1,000.
(d) In the event a Holder making a Collateral Substitution pursuant
to this Section 3.13 fails to effect a book-entry transfer of the Normal
Units or fails to deliver a Normal Units Certificate to the Agent after
depositing Treasury Securities with the Collateral Agent, the Pledged Notes
or Pledged Treasury Consideration, as the case may be, constituting a part
of such Normal Units, and any distributions on such Pledged Notes or
Pledged Treasury Consideration shall be held in the name of the Agent or
its nominee in trust for the benefit of such Holder, until such Normal
Units are so transferred or the Normal Units Certificate is so delivered,
as the case may be, or, with respect to a Normal Units Certificate, such
Holder provides evidence satisfactory to the Company and the Agent that
such Normal Units Certificate has been destroyed, lost or stolen, together
with any indemnity that may be required by the Agent and the Company.
(e) Except as described in this Section 3.13, for so long as the
Purchase Contract underlying a Normal Unit remains in effect, such Normal
Unit shall not be separable into its constituent parts, and the rights and
obligations of the Holder of such Normal Unit in respect of the Pledged
Note or the Pledged Treasury Consideration, as the case may be, and the
Purchase Contract comprising such Normal Unit may be acquired, and may be
transferred and exchanged, only as a Normal Unit.
SECTION 3.14 REESTABLISHMENT OF NORMAL UNITS.
(a) A Holder of Stripped Units may reestablish Normal Units at any
time from and after the date of this Agreement and on or prior to the
second Business Day immediately preceding the Share Purchase Date, by (i)
depositing with the Collateral Agent the Notes or the appropriate Treasury
Consideration (identified and calculated by reference to the Treasury
Consideration then comprising Normal Units), as the case may be, then
comprising such number of Normal Units as is equal to the number of such
Stripped Units and (ii) transferring such Stripped Units to the Agent
accompanied by a notice to the Agent, substantially in the form of Exhibit
D hereto, stating that the Holder has transferred the relevant amount of
Notes or the appropriate Treasury Consideration, as the case may be, to the
Collateral Agent and requesting that the Agent instruct the Collateral
Agent to release the Pledged Treasury Securities underlying such Stripped
Unit, whereupon the Agent shall promptly give such instruction to the
Collateral Agent, substantially in the form of Exhibit C hereto.
Notwithstanding the foregoing, a Holder may not reestablish Normal Units
during the periods beginning on the fourth Business Day prior to the first
day of any Remarketing Period and ending on the third Business Day after
the end of such Remarketing Period. Upon receipt of the Notes or the
appropriate Treasury
34
Consideration, as the case may be, described in clause (i) above and the
instruction described in clause (ii) above, in accordance with the terms of
the Pledge Agreement, the Collateral Agent will release to the Agent, on
behalf of the Holder, such Pledged Treasury Securities from the Pledge,
free and clear of the Company's security interest therein, and upon receipt
thereof the Agent shall promptly:
(x) cancel the related Stripped Units;
(y) transfer the Pledged Treasury Securities to the Holder;
and
(z) authenticate, execute on behalf of such Holder and
deliver a Normal Units Certificate executed by the Company in
accordance with Section 3.3 evidencing the same number of Purchase
Contracts as were evidenced by the cancelled Stripped Units.
(b) Holders of Stripped Units may reestablish Normal Units (i) if
Notes are being substituted for the Pledged Treasury Securities, only in
integral multiples of 40 Stripped Units for 40 Normal Units or (ii) if the
reestablishment occurs after a successful remarketing of the Notes pursuant
to the provisions of Section 5.4 or after a Tax Event Redemption, as the
case may be, only in integral multiples of Stripped Units such that the
Treasury Consideration to be deposited and the Treasury Securities to be
released are in integral multiples of $1,000.
(c) Except as provided in this Section 3.14, for so long as the
Purchase Contract underlying a Stripped Unit remains in effect, such
Stripped Unit shall not be separable into its constituent parts, and the
rights and obligations of the Holder of such Stripped Unit in respect of
the Pledged Treasury Securities and Purchase Contract comprising such
Stripped Unit may be acquired, and may be transferred and exchanged, only
as a Stripped Unit.
SECTION 3.15 TRANSFER OF COLLATERAL UPON OCCURRENCE OF TERMINATION
EVENT.
Upon the occurrence of a Termination Event and the transfer to the
Agent of the Notes or the appropriate Treasury Consideration or the Treasury
Securities, as the case may be, underlying the Normal Units and the Stripped
Units pursuant to the terms of the Pledge Agreement, the Agent shall request
transfer instructions with respect to such Notes or the appropriate Treasury
Consideration or Treasury Securities, as the case may be, from each Holder by
written request mailed to such Holder at its address as it appears in the Normal
Units Register or the Stripped Units Register, as the case may be. Upon
book-entry transfer of the Normal Units or Stripped Units or delivery of a
Normal Units Certificate or Stripped Units Certificate to the Agent with such
transfer instructions, the Agent shall transfer the Notes, the appropriate
Treasury Consideration or the Treasury Securities underlying such Normal Units
or Stripped Units, as the case may be, to such Holder by book-entry transfer, or
other appropriate procedures, in accordance with such
35
instructions. In the event a Holder of Normal Units or Stripped Units fails to
effect such transfer or delivery, the Notes, the appropriate Treasury
Consideration or the Treasury Securities, as the case may be, underlying such
Normal Units or Stripped Units, as the case may be, and any distributions
thereon, shall be held in the name of the Agent or its nominee in trust for the
benefit of such Holder, until such Normal Units or Stripped Units are
transferred or the Normal Units Certificate or Stripped Units Certificate is
surrendered or such Holder provides satisfactory evidence that such Normal Units
Certificate or Stripped Units Certificate has been destroyed, lost or stolen,
together with any indemnity that may be required by the Agent and the Company.
In the case of the Treasury Portfolio or any Treasury Securities, the Agent may
dispose of the subject securities for cash and pay the applicable portion of
such cash to the Holders in lieu of such Holders' Treasury Securities, where
such Holder would otherwise have been entitled to receive less than $1,000 of
any such security.
SECTION 3.16 NO CONSENT TO ASSUMPTION.
Each Holder of a Unit, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption (i.e., affirmance),
under Section 365 of the Bankruptcy Code or otherwise, of the Purchase Contract
by the Company, any receiver, liquidator or person or entity performing similar
functions or its trustee in the event that the Company becomes the debtor under
the Bankruptcy Code or subject to other similar state or federal law providing
for reorganization or liquidation.
SECTION 3.17 CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Agent shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders; PROVIDED that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Agent of any
changes in the "CUSIP" numbers.
ARTICLE IV
THE NOTES
SECTION 4.1 PAYMENT OF INTEREST; RIGHTS TO INTEREST PAYMENTS
PRESERVED; NOTICE.
(a) A payment on any Note or Treasury Consideration, as the case may
be, 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 Normal Units Certificate
(or one or more Predecessor Normal Units Certificates) of which such Note
or the
36
appropriate Treasury Consideration is a part is registered at the close of
business on the Record Date for such Payment Date.
(b) Each Normal Units Certificate evidencing Notes delivered under
this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Normal Units Certificate shall carry the rights to
interest accrued and unpaid, and rights to accrue interest, which were
carried by the Notes underlying such other Normal Units Certificate.
(c) In the case of any Normal Unit with respect to which Early
Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date, or with respect to which Merger Early Settlement of the
underlying Purchase Contract is effected on a Merger Early Settlement Date,
or with respect to which Cash Settlement is effected on the Business Day
immediately preceding the Share Purchase Date, or with respect to which a
Collateral Substitution is effected, in each case on a date that is after
any Record Date and on or prior to the next succeeding Payment Date,
payments on the Note or the appropriate Treasury Consideration, as the case
may be, underlying such Normal Unit otherwise payable on such Payment Date
shall be payable on such Payment Date notwithstanding such Early
Settlement, Merger Early Settlement, Cash Settlement or Collateral
Substitution, as the case may be, and such payments shall, subject to
receipt thereof by the Agent, be payable to the Person in whose name the
Normal Units Certificate (or one or more Predecessor Normal Unit
Certificates) was registered at the close of business on such Record Date.
Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Normal Unit with respect to which Early
Settlement, Merger Early Settlement or Cash Settlement of the underlying
Purchase Contract is effected, or with respect to which a Collateral
Substitution has been effected, payments on the related Notes or payments
on the appropriate Treasury Consideration that would otherwise be payable
after the applicable Settlement Date or after such Collateral Substitution,
as the case may be, shall not be payable hereunder to the Holder of such
Normal Unit; provided, that to the extent that such Holder continues to
hold the separated Notes that formerly comprised a part of such Holder's
Normal Units, such Holder shall be entitled to receive any payments on such
separated Notes.
SECTION 4.2 NOTICE AND VOTING.
Under and subject to the terms of the Pledge Agreement and this
Agreement, the Agent will be entitled to exercise the voting and any other
consensual rights pertaining to the Pledged Notes but only to the extent
instructed by the Holders as described below. Upon receipt of notice of any
meeting at which holders of Notes are entitled to vote or upon any solicitation
of consents, waivers or proxies of holders of Notes, the Agent shall, as soon as
practicable thereafter, mail to the Holders of Normal Units a notice (a)
containing such information as is contained in the notice or solicitation,
37
(b) stating that each Holder on the record date set by the Agent therefor
(which, to the extent possible, shall be the same date as the record date for
determining the holders of Notes entitled to vote) shall be entitled to instruct
the Agent as to the exercise of the voting rights pertaining to the Pledged
Notes underlying their Normal Units and (c) stating the manner in which such
instructions may be given. Upon the written request of any Holder of Normal
Units on such record date, the Agent shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the instructions set forth in such
request, the maximum number of Pledged Notes as to which any particular voting
instructions are received. In the absence of specific instructions from the
Holder of a Normal Unit, the Agent shall abstain from voting the Pledged Note
underlying such Normal Unit. The Company hereby agrees, if applicable, to
solicit Holders of Normal Units to timely instruct the Agent in order to enable
the Agent to vote such Pledged Notes.
SECTION 4.3 TAX EVENT REDEMPTION.
Upon the occurrence of a Tax Event Redemption prior to the successful
remarketing of the Notes pursuant to the provisions of Section 5.4, the Company
may elect to instruct in writing the Collateral Agent to apply, and upon such
written instruction, the Collateral Agent shall apply, out of the aggregate
Redemption Price for the Notes that are components of Normal Units, an amount
equal to the Tax Event Redemption Principal Amount to purchase on behalf of the
Holders of Normal Units the Treasury Portfolio and promptly remit the remaining
portion of such Redemption Price to the Agent for payment to the Holders of such
Normal Units. The Treasury Portfolio will be substituted for the Pledged Notes,
and will be pledged to the Collateral Agent in accordance with the terms of the
Pledge Agreement to secure the obligation of each Holder of a Normal Unit to
purchase the Common Shares under the Purchase Contract constituting a part of
such Normal Unit. Following the occurrence of a Tax Event Redemption prior to a
successful remarketing of the Notes pursuant to the provisions of Section 5.4,
the Holders of Normal Units and the Collateral Agent shall have such security
interests, rights and obligations with respect to the Treasury Portfolio as the
Holder of Normal Units and the Collateral Agent had in respect of the Notes, as
the case may be, subject to the Pledge thereof as provided in Articles II, III,
IV, V and VI of the Pledge Agreement, and any reference herein or in the
Certificates to the Note shall be deemed to be a reference to such Treasury
Portfolio and any reference herein or in the Certificates to interest on the
Notes shall be deemed to be a reference to corresponding distributions on the
Treasury Portfolio. The Company may cause to be made in any Normal Unit
Certificates thereafter to be issued such change in phraseology and form (but
not in substance) as may be appropriate to reflect the substitution of the
Treasury Portfolio for Notes as collateral.
Upon the occurrence of a Tax Event Redemption after the successful
remarketing of the Notes, the Redemption Price will be payable in cash to the
holders of the Notes.
38
SECTION 4.4 CONSENT TO TREATMENT FOR TAX PURPOSES.
Each Holder of a Normal Unit or a Stripped Unit, by its acceptance
thereof, covenants and agrees to treat itself as the owner, for federal, state
and local income and franchise tax purposes of (i) the related Notes or the
appropriate Treasury Consideration, in the case of the Normal Units, or (ii) the
Treasury Securities, in the case of the Stripped Units. Each Holder of a Normal
Unit, by its acceptance thereof, further covenants and agrees (i) to treat the
Notes as indebtedness of Platinum Underwriters Finance, Inc. for federal, state
and local income and franchise tax purposes and (ii) to allocate *% of the issue
price of a Normal Unit in the Initial Public Offering to the beneficial interest
in the Note and *% of the issue price to the Purchase Contract.
SECTION 4.5 PREPAYMENT OF NOTES.
Upon the prepayment in full of the principal of the Notes prior to
the earlier to occur of a successful remarketing of the Notes pursuant to the
provisions of Section 5.4 and a Termination Event (a "Prepayment Event"), the
Company shall instruct the Collateral Agent in writing to purchase, and upon
such written instruction, the Collateral Agent shall purchase the Prepayment
Treasury Consideration on behalf of the Holders of Normal Units and promptly
remit the remaining portion of any payments received with respect to such
Notes to the Agent for payment to the Holders of such Normal Units. Any
distribution to Holders of excess funds shall be payable at the Corporate
Trust Office or, at the option of the Holder, by check mailed to the address
of the Person entitled thereto at such address as it appears on the Register
or by wire transfer to an account maintained in the United States specified
by the Holder. The Prepayment Treasury Consideration will be substituted for
the Pledged Notes, and will be pledged to the Collateral Agent in accordance
with the terms of the Pledge Agreement to secure the obligation of each
Holder of a Normal Unit to purchase the Common Shares under the Purchase
Contract constituting a part of such Normal Unit. Following the occurrence of
a Prepayment Event, the Holders of Normal Units and the Collateral Agent
shall have such security interests, rights and obligations with respect to
the Prepayment Treasury Consideration as the Holder of Normal Units and the
Collateral Agent had in respect of the Notes, as the case may be, subject to
the Pledge thereof as provided in Articles II, III, IV, V and VI of the
Pledge Agreement, and any reference herein or in the Certificates to the Note
shall be deemed to be a reference to such Prepayment Treasury Consideration.
The Company may cause to be made in any Normal Unit Certificates thereafter
to be issued such change in phraseology and form (but not in substance) as
may be appropriate to reflect the substitution of the Prepayment Treasury
Consideration for Notes as collateral.
39
ARTICLE V
THE PURCHASE CONTRACTS; THE REMARKETING
SECTION 5.1 PURCHASE OF COMMON SHARES.
(a) Each Purchase Contract shall, unless an Early Settlement has
occurred in accordance with Section 5.9, or a Merger Early Settlement has
occurred in accordance with Section 5.10, obligate the Holder of the
related Unit to purchase, and the Company to sell, on the Share Purchase
Date at a price equal to $25 (the "Purchase Price"), a number of newly
issued Common Shares equal to the Settlement Rate unless, on or prior to
the Share Purchase Date, a Termination Event shall have occurred. The
"Settlement Rate" is equal to,
(i) if the Applicable Market Value (as defined below) is
equal to or greater than $* (the "Threshold Appreciation Price"), *
Common Shares per Purchase Contract,
(ii) if the Applicable Market Value is less than the Threshold
Appreciation Price, but is greater than $*, the number of Common
Shares per Purchase Contract equal to the Purchase Price divided by
the Applicable Market Value, and
(iii) if the Applicable Market Value is equal to or less than
$*, * Common Shares per Purchase Contract,
in each case subject to adjustment as provided in Section 5.6 (and in each
case rounded upward or downward to the nearest 1/10,000th of a share).
(b) No fractional Common Shares will be issued by the Company with
respect to the payment of Contract Adjustment Payments on the Share
Purchase Date. In lieu of fractional shares otherwise issuable with respect
to such payment of Contract Adjustment Payments, the Holder will be
entitled to receive an amount in cash as provided in Section 5.12.
(c) The "Applicable Market Value" means the average of the Closing
Price per Common Share on each of the 20 consecutive Trading Days ending on
the third Trading Day immediately preceding the Share Purchase Date. The
"Closing Price" of the Common Shares 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 Shares on the New York Stock Exchange (the
"NYSE") on such date or, if the Common Shares are 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 Shares
are so listed, or if the Common Shares are not so listed on a United States
securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Shares are not so reported, the last
40
quoted bid price for the Common Shares 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 Shares 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 Shares (A) are 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) have 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 Shares at the close of business on such day.
(d) Each Holder of a Unit, by its acceptance thereof, irrevocably
authorizes the Agent to enter into and perform the related Purchase
Contract on its behalf as its attorney-in-fact (including the execution of
Certificates on behalf of such Holder), agrees to be bound by the terms and
provisions thereof, covenants and agrees to perform its obligations under
such Purchase Contract, consents to the provisions hereof, irrevocably
authorizes the Agent as its attorney-in-fact to enter into and perform the
Pledge Agreement on its behalf as its attorney-in-fact, and consents to and
agrees to be bound by the Pledge of the Notes, the appropriate Treasury
Consideration or the Treasury Securities pursuant to the Pledge Agreement;
provided that upon a Termination Event, the rights of the Holder of such
Unit under the Purchase Contract may be enforced without regard to any
other rights or obligations. Each Holder of a Unit, by its acceptance
thereof, further covenants and agrees, that, to the extent and in the
manner provided in Section 5.4 and the Pledge Agreement, but subject to the
terms thereof, payments in respect of the Pledged Notes, the Pledged
Treasury Consideration or the Pledged Treasury Securities to be paid upon
settlement of such Holder's obligations to purchase Common Shares under the
Purchase Contract, shall be paid on the Share Purchase Date by the
Collateral Agent to the Company in satisfaction of such Holder's
obligations under such Purchase Contract and such Holder shall acquire no
right, title or interest in such payments.
(e) Upon registration of transfer of a Certificate, the transferee
shall be bound (without the necessity of any other action on the part of
such transferee) under the terms of this Agreement, the Purchase Contracts
underlying such Certificate and the Pledge Agreement, and the transferor
shall be released from the obligations under this Agreement, the Purchase
Contracts underlying the Certificate so transferred and the Pledge
Agreement. The Company covenants and agrees, and each Holder of a
Certificate, by its acceptance thereof, likewise covenants and agrees, to
be bound by the provisions of this paragraph.
SECTION 5.2 CONTRACT ADJUSTMENT PAYMENTS.
(a) Subject to Section 5.3 herein, the Company shall pay, on each
Payment Date, the Contract Adjustment Payments, if any, payable in respect
of
41
each Purchase Contract to the Person in whose name a Certificate (or one or
more Predecessor Certificates) is registered on the Register at the close
of business on the Record Date next preceding such Payment Date in such
coin or currency of the United States as at the time of payment shall be
legal tender for payments. The Contract Adjustment Payments, if any, will
be payable at the Corporate Trust Office or, at the option of the Company,
by check mailed to the address of the Person entitled thereto at such
Person's address as it appears on the Register or by wire transfer to the
account maintained in the United States designated by a prior written
notice by such Person.
(b) Upon the occurrence of a Termination Event, the Company's
obligation to pay Contract Adjustment Payments (including any accrued
Deferred Contract Adjustment Payments), if any, shall cease.
(c) Each Certificate delivered under this Agreement upon registration
of transfer of or in exchange for or in lieu of any other Certificate
(including as a result of a Collateral Substitution or the re-establishment
of a Normal Unit) shall carry the rights to Contract Adjustment Payments,
if any, accrued and unpaid, and to accrue Contract Adjustment Payments, if
any, which were carried by the Purchase Contracts underlying such other
Certificates.
(d) Subject to Sections 5.4, 5.9 and 5.10, in the case of any Unit
with respect to which Early Settlement or Merger Early Settlement of the
underlying Purchase Contract is effected on an Early Settlement Date or a
Merger Early Settlement Date, respectively, or in respect of which Cash
Settlement of the underlying Purchase Contract is effected on the Business
Day immediately preceding the Share Purchase Date, or with respect to which
a Collateral Substitution or an establishment or re-establishment of a
Normal Unit pursuant to Section 3.14 is effected, in each case on a date
that is after any Record Date and on or prior to the next succeeding
Payment Date, Contract Adjustment Payments on the Purchase Contract
underlying such Unit otherwise payable on such Payment Date shall be
payable on such Payment Date notwithstanding such Cash Settlement, Early
Settlement, Merger Early Settlement, Collateral Substitution or
establishment or re-establishment of Normal Units, and such Contract
Adjustment Payments shall, subject to receipt thereof by the Agent, be
payable to the Person in whose name the Certificate evidencing such Unit
(or one or more Predecessor Certificates) was registered at the close of
business on such Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Unit with respect to
which Early Settlement or Merger Early Settlement or Cash Settlement of the
underlying Purchase Contract is effected on an Early Settlement Date or
Merger Early Settlement Date or on the Business Day immediately preceding
the Share Purchase Date, as the case may be, or with respect to which a
Collateral Substitution or an establishment or re-establishment of a Normal
Unit has been effected, Contract Adjustment Payments, if any, that would
otherwise be payable after the Early Settlement Date, or Merger Early
42
Settlement Date, Collateral Substitution or such establishment or
re-establishment with respect to such Purchase Contract shall not be
payable.
(e) The Company's obligations with respect to Contract Adjustment
Payments (including any accrued or Deferred Contract Adjustment Payments)
will be subordinated and junior in right of payment to the Company's
obligations under any Senior Indebtedness.
(f) Subject to the provisions of Section 5.8, in the event (x) of any
payment by, or distribution of assets of, the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution, winding-up, liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership
or other proceedings, or (y) subject to the provisions of Section 5.2(h)
below, that (i) a default shall have occurred and be continuing with
respect to the payment of principal, interest or any other monetary amounts
due and payable on any Senior Indebtedness and such default shall have
continued beyond the period of grace, if any, specified in the instrument
evidencing such Senior Indebtedness (and the Agent shall have received
written notice thereof from the Company or one or more holders of Senior
Indebtedness or their representative or representatives or the trustee or
trustees under any indenture pursuant to which any such Senior Indebtedness
may have been issued), or (ii) the maturity of any Senior Indebtedness
shall have been accelerated because of a default in respect of such Senior
Indebtedness (and the Agent shall have received written notice thereof from
the Company or one or more holders of Senior Indebtedness or their
representative or representatives or the trustee or trustees under any
indenture pursuant to which any such Senior Indebtedness may have been
issued), then:
(i) the holders of all Senior Indebtedness shall first be
entitled to receive, in the case of clause (x) above, payment in full
of all amounts due or to become due upon all Senior Indebtedness and,
in the case of subclauses (i) and (ii) of clause (y) above, payment of
all amounts due thereon, or provision shall be made for such payment
in money or money's worth, before the Holders of any of the Units are
entitled to receive any Contract Adjustment Payments on the Purchase
Contracts underlying the Units;
(ii) any payment by, or distribution of assets of, the Company
of any kind or character, whether in cash, property or securities, to
which the Holders of any of the Units would be entitled except for the
provisions of Sections 5.2(e) through (q), including any such payment
or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Company being subordinated to
the payment of such Contract Adjustment Payments on the Purchase
Contracts underlying the Securities, shall be paid or delivered by the
Person making such
43
payment or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or otherwise, directly to the holders of such
Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have been
issued, ratably according to the aggregate amounts remaining unpaid on
account of such Senior Indebtedness held or represented by each, to
the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid after giving effect to any concurrent
payment or distribution (or provision therefor) to the holders of such
Senior Indebtedness, before any payment or distribution is made of
such Contract Adjustment Payments to the Holders of such Units; and
(iii) in the event that, notwithstanding the foregoing, any
payment by, or distribution of assets of, the Company of any kind or
character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being
subordinated to the payment of Contract Adjustment Payments on the
Purchase Contracts underlying the Securities, shall be received by the
Agent or the Holders of any of the Securities when such payment or
distribution is prohibited pursuant to Sections 5.2(e) through (q),
such payment or distribution shall be paid over to the holders of such
Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture pursuant to which any
instruments evidencing any such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness.
(g) For purposes of Sections 5.2(e) through (q), the words "cash,
property or securities" shall not be deemed to include shares of stock of
the Company as reorganized or readjusted, or securities of the Company or
any other Person provided for by a plan of reorganization or readjustment,
the payment of which is subordinated at least to the extent provided in
Sections 5.2(e) through (q) with respect to such Contract Adjustment
Payments on the Securities to the payment of all Senior Indebtedness which
may at the time be outstanding; PROVIDED that (i) the indebtedness or
guarantee of indebtedness, as the case may be, that constitutes Senior
Indebtedness is assumed by the Person, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of the
Senior Indebtedness are not, without the consent of each such holder
adversely affected thereby, altered by such reorganization or readjustment.
44
(h) Any failure by the Company to make any payment on or perform any
other obligation under Senior Indebtedness, other than any indebtedness
incurred by the Company or assumed or guaranteed, directly or indirectly,
by the Company for money borrowed (or any deferral, renewal, extension or
refunding thereof) or any indebtedness or obligation as to which the
provisions of Sections 5.2(e) through (g) shall have been waived by the
Company in the instrument or instruments by which the Company incurred,
assumed, guaranteed or otherwise created such indebtedness or obligation,
shall not be deemed a default or event of default if (i) the Company shall
be disputing its obligation to make such payment or perform such obligation
and (ii) either (A) no final judgment relating to such dispute shall have
been issued against the Company which is in full force and effect and is
not subject to further review, including a judgment that has become final
by reason of the expiration of the time within which a party may seek
further appeal or review, and (B) in the event a judgment that is subject
to further review or appeal has been issued, the Company shall in good
faith be prosecuting an appeal or other proceeding for review and a stay of
execution shall have been obtained pending such appeal or review.
(i) Subject to the payment in full of all Senior Indebtedness, the
Holders of the Purchase Contracts underlying the Units shall be subrogated
(equally and ratably with the holders of all obligations of the Company
which by their express terms are subordinated to Senior Indebtedness of the
Company to the same extent as payment of the Contract Adjustment Payments
in respect of the Purchase Contracts underlying the Units is subordinated
and which are entitled to like rights of subrogation) to the rights of the
holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to the Senior
Indebtedness until all such Contract Adjustment Payments owing on the
Purchase Contracts underlying the Units shall be paid in full, and as
between the Company, its creditors other than holders of such Senior
Indebtedness and the Holders, no such payment or distribution made to the
holders of Senior Indebtedness by virtue of Sections 5.2(e) through (q)
that otherwise would have been made to the Holders shall be deemed to be a
payment by the Company on account of such Senior Indebtedness, it being
understood that the provisions of Sections 5.2(e) through (q) are and are
intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of Senior Indebtedness, on the
other hand.
(j) Nothing contained in Sections 5.2(e) through (q) or elsewhere in
this Agreement or in the Units is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness and
the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders such Contract Adjustment Payments on
the Purchase Contracts underlying the Units as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of the
Company other than the holders of Senior
45
Indebtedness, nor shall anything herein or therein prevent the Agent or any
Holder from exercising all remedies otherwise permitted by applicable law
upon default under this Agreement, subject to the rights, if any, under
these Sections 5.2(e) through (q), of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
(k) Upon payment or distribution of assets of the Company referred to
in these Sections 5.2(e) through (q), the Agent and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending
or upon a certificate of the trustee in bankruptcy, receiver, assignee for
the benefit of creditors, liquidating trustee or agent or other Person
making any payment or distribution, delivered to the Agent or to the
Holders, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to these Sections 5.2(e) through (q).
(l) The Agent shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee or representative on behalf of such holder) to
establish that such notice has been given by a holder of Senior
Indebtedness or a trustee or representative on behalf of any such holder or
holders. In the event that the Agent determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant
to Sections 5.2(e) through (q), the Agent may request such Person to
furnish evidence to the reasonable satisfaction of the Agent as to the
amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under Sections 5.2(e)
through (q), and, if such evidence is not furnished, the Agent may defer
payment to such Person pending judicial determination as to the right of
such Person to receive such payment.
(m) Nothing contained in Sections 5.2(e) through (q) shall affect the
obligations of the Company to make, or prevent the Company from making,
payment of the Contract Adjustment Payments, except as provided in these
Sections 5.2(e) through (q).
(n) Each Holder of Securities, by his acceptance thereof, authorizes
and directs the Agent on his, her or its behalf to take such action as may
be necessary or appropriate to effectuate the subordination provided in
Sections 5.2(e) through (q) and appoints the Agent his, her or its
attorney-in-fact, as the case may be, for any and all such purposes.
46
(o) The Company shall give prompt written notice to the Agent of any
fact known to the Company that would prohibit the making of any payment of
moneys to or by the Agent in respect of the Purchase Contracts underlying
the Units pursuant to the provisions of this Section 5.2. Notwithstanding
the provisions of Sections 5.2(e) through (q) or any other provisions of
this Agreement, the Agent shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of
moneys to or by the Agent, or the taking of any other action by the Agent,
unless and until the Agent shall have received written notice thereof
mailed or delivered to a Responsible Officer of the Agent from the Company,
any Holder, any paying agent or the holder or representative of any Senior
Indebtedness; PROVIDED that if at least two Business Days prior to the date
upon which by the terms hereof any such moneys may become payable for any
purpose, the Agent shall not have received with respect to such moneys the
notice provided for in this Section 5.2(o), then, anything herein contained
to the contrary notwithstanding, the Agent shall have full power and
authority to receive such moneys and to apply the same to the purpose for
which they were received and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to or on
or after such date.
(p) The Agent in its individual capacity shall be entitled to all the
rights set forth in this Section 5.2 with respect to any Senior
Indebtedness at the time held by it, to the same extent as any other holder
of Senior Indebtedness and nothing in this Agreement shall deprive the
Agent of any of its rights as such holder.
(q) No right of any present or future holder of any Senior
Indebtedness to enforce the subordination herein shall at any time or in
any way be prejudiced or impaired by any act or failure to act on the part
of the Company or by any noncompliance by the Company with the terms,
provisions and covenants of this Agreement, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with.
(r) Nothing in this Section 5.2 shall apply to claims of, or payments
to, the Agent under or pursuant to Section 7.7 hereof.
With respect to the holders of Senior Indebtedness, (i) the duties and
obligations of the Agent shall be determined solely by the express provisions of
this Agreement; (ii) the Agent shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Agreement;
(iii) no implied covenants or obligations shall be read into this Agreement
against the Agent; and (iv) the Agent shall not be deemed to be a fiduciary as
to such holders.
47
SECTION 5.3 DEFERRAL OF CONTRACT ADJUSTMENT PAYMENTS.
(a) The Company shall have the right, at any time prior to the Share
Purchase Date, to defer the payment of any or all of the Contract
Adjustment Payments 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 each such deferred Contract Adjustment Payment (specifying the
amount to be deferred) at least ten Business Days prior to the earlier of
(i) the next succeeding Payment Date or (ii) the date the Company is
required to give notice of the Record Date or Payment Date with respect to
payment of such Contract Adjustment Payments to the NYSE or other
applicable self-regulatory organization or to Holders of the Units, but in
any event not less than one Business Day prior to such Record Date. Any
Contract Adjustment Payments so deferred shall, to the extent permitted by
law, accrue additional Contract Adjustment Payments thereon at the rate of
*% per year (computed on the basis of a 360-day year of twelve 30-day
months), compounding on each succeeding Payment Date, until paid in full
(such deferred installments of Contract Adjustment Payments, if any,
together with the additional Contract Adjustment Payments, if any, accrued
thereon, being referred to herein as the "Deferred Contract Adjustment
Payments"). Deferred Contract Adjustment Payments, if any, shall be due on
the next succeeding Payment Date except to the extent that payment is
deferred pursuant to this Section 5.3. No Contract Adjustment Payments may
be deferred to a date that is after the Settlement Date and no such
deferral period may end other than on a Payment Date. If the Purchase
Contracts are terminated upon the occurrence of a Termination Event, the
Holder's right to receive Contract Adjustment Payments, if any, and
Deferred Contract Adjustment Payments, will terminate.
(b) In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until a Payment Date
prior to the Share Purchase Date, then all Deferred Contract Adjustment
Payments, if any, shall be payable to the registered Holders as of the
close of business on the Record Date immediately preceding such Payment
Date.
(c) In the event that the Company elects to defer the payment of
Contract Adjustment Payments on the Purchase Contracts until the Share
Purchase Date, each Holder will receive on the Share Purchase Date in lieu
of a cash payment a number of Common Shares (in addition to a number of
Common Shares equal to the Settlement Rate) equal to (A) the aggregate
amount of Deferred Contract Adjustment Payments payable to such Holder (net
of any required tax withholding on such Deferred Contract Adjustment
Payment, which shall be remitted to the appropriate taxing jurisdiction)
divided by (B) the Applicable Market Value.
(d) No fractional Common Shares will be issued by the Company with
respect to the payment of Deferred Contract Adjustment Payments on the
Share
48
Purchase Date. In lieu of fractional shares otherwise issuable with respect
to such payment of Deferred Contract Adjustment Payments, the Holder will
be entitled to receive an amount in cash as provided in Section 5.12.
(e) In the event the Company exercises its option to defer the
payment of Contract Adjustment Payments then, until the earlier of (x) the
Termination Date or (y) the date on which the Deferred Contract Adjustment
Payments have been paid, the Company shall not declare or pay dividends on,
make distributions with respect to, or redeem, purchase or acquire, or make
a liquidation payment with respect to, any of the Company's Capital Stock
other than:
(i) purchases, redemptions or acquisitions of shares of
Capital Stock of the Company in connection with any employment
contract, benefit plan or other similar arrangement with or for the
benefit of employees, officers, directors or agents or a share
purchase or dividend reinvestment plan, or the satisfaction by the
Company of its obligations pursuant to any contract or security
outstanding on the date the Company exercises its right to defer the
payment of Contract Adjustment Payments;
(ii) as a result of a reclassification of the Company's
Capital Stock or the exchange or conversion of one class or series of
the Company's Capital Stock for another class or series of the
Company's Capital Stock;
(iii) the purchase of fractional interests of the Company's
Capital Stock pursuant to the conversion or exchange provisions of
such Capital Stock or the security being converted or exchanged;
(iv) dividends or distributions in the Company's Capital Stock
(or rights to acquire the Company's Capital Stock) or repurchases,
acquisitions or redemptions of the Company's Capital Stock in exchange
for or out of the net cash proceeds of the sale of the Company's
Capital Stock (or securities convertible into or exchangeable for
shares of the Company's Capital Stock); or
(v) redemptions, exchanges or repurchases of any rights
outstanding under a shareholder rights plan or the declaration or
payment thereunder of a dividend or distribution of or with respect to
rights in the future.
SECTION 5.4 PAYMENT OF PURCHASE PRICE; REMARKETING.
(a) Unless a Tax Event Redemption, Prepayment Event, successful
remarketing of the Notes pursuant to the provisions of this Section 5.4 or
Termination Event has occurred, or a Holder of a Unit has settled the
underlying Purchase Contract through an Early Settlement pursuant to
Section 5.9 or a
49
Merger Early Settlement pursuant to Section 5.10, each Holder of a Normal
Unit may pay in cash ("Cash Settlement") the Purchase Price for the Common
Shares to be purchased pursuant to a Purchase Contract if such Holder
notifies the Agent by surrender of the Normal Unit Certificate and delivery
of a notice in substantially the form of Exhibit E hereto of its intention
to make a Cash Settlement. Such notice shall be made on or prior to
5:00 p.m., New York City time, on the seventh Business Day immediately
preceding the Share Purchase Date. The Agent shall promptly notify the
Collateral Agent of the receipt of such a notice from a Holder intending to
make a Cash Settlement.
(i) A Holder of a Normal Unit who has so notified the Agent
of its intention to make a Cash Settlement is required to pay the
Purchase Price to the Collateral Agent prior to 11:00 a.m., New York
City time, on the Business Day immediately preceding the Share
Purchase Date in lawful money of the United States by certified or
cashiers' check or wire transfer, in each case in immediately
available funds payable to or upon the order of the Company. Any cash
received by the Collateral Agent will be paid to the Company on the
Share Purchase Date in settlement of the Purchase Contract in
accordance with the terms of this Agreement and the Pledge Agreement.
(ii) If a Holder of a Normal Unit fails to notify the Agent of
its intention to make a Cash Settlement in accordance with paragraph
(a)(i) above, the Holder shall be deemed to have consented to the
disposition of the Pledged Notes pursuant to the remarketing as
described in paragraph (b) below. If a Holder of a Normal Unit does
notify the Agent as provided in paragraph (a)(i) above of its
intention to pay the Purchase Price in cash, but fails to make such
payment as required by paragraph (a)(i) above, such failure shall
constitute an event of default; however, the Notes of such a Holder
will not be remarketed but instead the Collateral Agent, for the
benefit of the Company, will exercise its rights as a secured party
with respect to such Notes, including but not limited to those rights
specified in subsection (b)(iii) below.
(b) (i) Unless a Tax Event Redemption or Prepayment Event has
occurred, the Company and Platinum Underwriters Finance shall engage a
nationally recognized investment bank (the "Remarketing Agent") pursuant to
a Remarketing Agreement to be mutually agreed on by the Company, Platinum
Underwriters Finance, the Agent and the Remarketing Agent, but providing
for remarketing procedures substantially as set forth below to sell the
Notes of Holders of Normal Units, other than Holders that have elected not
to participate in the remarketing pursuant to the procedures set forth in
clause (iv) below, and holders of Separate Notes that have elected to
participate in the remarketing pursuant to the procedures set forth in
Section 4.5(d) of the Pledge Agreement. On the seventh Business Day prior
to first day of each Remarketing Period, the
50
Agent shall give Holders of Normal Units and holders of Separate Notes
notice of the remarketing in a daily newspaper in the English language of
general circulation in The City of New York (which is expected to be THE
WALL STREET JOURNAL) including the specific U.S. Treasury security or
securities (including the CUSIP number and/or the principal terms of such
Treasury security or securities) described in clause (iv) below, that must
be delivered by Holders of Normal Units that elect not to participate in
the remarketing pursuant to clause (iv) below no later than 10:00 a.m., New
York City time, on the fourth Business Day preceding the first day of such
Remarketing Period. The Company or the Agent, at the Company's request,
shall request not later than seven nor more than 15 calendar days prior to
any Remarketing Period, that the Clearing Agency notify the Clearing Agency
participants of such Remarketing Period. The Agent shall notify, by
10:00 a.m., New York City time, on the third Business Day preceding the
first day of such Remarketing Period, the Remarketing Agent and the
Collateral Agent of the aggregate number of Notes of Normal Unit Holders to
be remarketed. On the third Business Day preceding the first day of such
Remarketing Period, no later than by 10:00 a.m., New York City time,
pursuant to the terms of the Pledge Agreement, the Custodial Agent will
notify the Remarketing Agent of the aggregate number of Separate Notes to
be remarketed. No later than 10:00 a.m., New York City time, on the
Business Day immediately preceding the first day of such Remarketing
Period, the Collateral Agent and the Custodial Agent, pursuant to the terms
of the Pledge Agreement, will deliver for remarketing to the Remarketing
Agent all Notes to be remarketed. Upon receipt of such notice from the
Agent and the Custodial Agent and such Notes from the Collateral Agent and
the Custodial Agent, the Remarketing Agent will, on the Remarketing Date,
use its commercially reasonable best efforts to sell such Notes on such
date at an aggregate price equal to at least 100.25% of the Remarketing
Value. The Remarketing Agent will use the proceeds from a successful
remarketing to purchase the appropriate U.S. Treasury securities (the
"Agent-purchased Treasury Consideration") with the CUSIP numbers, if any,
selected by the Remarketing Agent, described in clauses (i)(1) and (ii)(1)
of the definition of Remarketing Value related to the Notes of Holders of
Normal Units that were remarketed. On or prior to the third Business Day
following the Remarketing Date or any Subsequent Remarketing Date on which
the Notes are successfully remarketed, the Remarketing Agent shall deliver
such Agent-purchased Treasury Consideration to the Agent, which shall
thereupon deliver such Agent-purchased Treasury Consideration to the
Collateral Agent. The Collateral Agent, for the benefit of the Company,
will thereupon apply such Agent-purchased Treasury Consideration, in
accordance with the Pledge Agreement, to secure such Holders' obligations
under the Purchase Contracts. In the event of a successful remarketing
pursuant to this Section 5.4, the Remarketing Agent will deduct as a
remarketing fee an amount not exceeding 25 basis points (.25%) of the total
proceeds from the remarketing (the "Remarketing Fee"). The Remarketing
Agent will remit (1) the portion of the proceeds from the remarketing
attributable to the Separate Notes to the holders of Separate Notes that
were remarketed and (2) the
51
remaining portion of the proceeds, less those proceeds used to purchase the
Agent-purchased Treasury Consideration, to the Agent for the benefit of the
Holders of the Normal Units that were remarketed, all determined on a pro
rata basis, in each case, on or prior to the third Business Day following
the Remarketing Date or any Subsequent Remarketing Date on which the Notes
were successfully remarketed. Holders whose Notes are so remarketed will
not otherwise be responsible for the payment of any Remarketing Fee in
connection therewith.
(ii) If, in spite of using its commercially reasonable best
efforts, the Remarketing Agent cannot remarket the Notes included in
the remarketing at a price equal to at least 100.25% of the
Remarketing Value on the Remarketing Date, the Remarketing Agent will
attempt to establish a Remarketing Rate meeting these requirements on
each of the two immediately following Business Days. If the
Remarketing Agent cannot establish a Remarketing Rate meeting these
requirements on either of those days, the remarketing in such period
will be deemed to have failed (a "Failed Remarketing"). In the event
of a Failed Remarketing with respect to the first Remarketing Period,
the Remarketing Agent will undertake the procedures set forth in
clause (i) above on each of the three Business Days in the second
Remarketing Period. In the event of a Failed Remarketing in the second
Remarketing Period, the Remarketing Agent will further attempt to
establish such a Remarketing Rate on the third Business Day
immediately preceding the Share Purchase Date. If, in spite of using
its commercially reasonable best efforts, the Remarketing Agent fails
to remarket the Notes underlying the Normal Units at a price equal to
at least 100.25% of the Remarketing Value in accordance with the terms
of the Pledge Agreement by 4:00 p.m., New York City time, on the third
Business Day immediately preceding the Share Purchase Date, the "Last
Failed Remarketing" will be deemed to have occurred. Each remarketing
attempt that takes place in accordance with this Section 5.4 after the
Remarketing Date is referred to herein as a "Subsequent Remarketing."
Within three Business Days following the date of a Failed Remarketing
or the Last Failed Remarketing, as the case may be, the Remarketing
Agent shall return any Notes delivered to it to the Collateral Agent
and the Custodial Agent, as applicable. The Collateral Agent, for the
benefit of the Company, may exercise its rights as a secured party
with respect to such Notes, including those actions specified in (b)
(iii) below; provided that if upon the Last Failed Remarketing, the
Collateral Agent exercises such rights for the benefit of the Company
with respect to such Notes, any accumulated and unpaid interest on
such Notes will become payable by Platinum Underwriters Finance to the
Agent for payment to the Holders of the Normal Units to which such
Notes relate. Such payment will be made by Platinum Underwriters
Finance on or prior to 11:00 a.m., New York City time, on the Share
Purchase Date in lawful money of the United
52
States by certified or cashier's check or wire transfer in immediately
available funds payable to or upon the order of the Agent. The Company
will cause a notice of any Failed Remarketing and of the Last Failed
Remarketing to be published on the fourth Business Day following each
Failed Remarketing and the Last Failed Remarketing, as the case may
be, in a daily newspaper in the English language of general
circulation in The City of New York, which shall be THE WALL STREET
JOURNAL, if such newspaper is then so published. The Company will also
release this information by means of Bloomberg and Reuters newswire.
(iii) With respect to any Notes which constitute part of Normal
Units which are subject to the Last Failed Remarketing, the Collateral
Agent for the benefit of the Company reserves all of its rights as a
secured party with respect thereto and, subject to applicable law and
Section 5.4 (e) below, may, among other things, (A) retain such Notes
in full satisfaction of the Holders' obligations under the Purchase
Contracts or (B) sell such Notes in one or more public or private
sales or otherwise.
(iv) A Holder of Normal Units may elect not to participate in
the remarketing and retain the Notes underlying such Units by
notifying the Agent of such election and delivering the specific U.S.
Treasury security or securities (including the CUSIP number and/or the
principal terms of such security or securities) identified by the
Agent (as having been based solely on the identification that the
Remarketing Agent shall have advised the Agent) that constitute the
U.S. Treasury securities described in clauses (i) and (ii) of the
definition of Remarketing Value relating to the retained Notes (as if
only such Notes were being remarketed) (the "Opt-out Treasury
Consideration") to the Agent not later than 10:00 a.m., New York City
time, on the fourth Business Day prior to the beginning of any
Remarketing Period. Upon receipt thereof by the Agent, the Agent shall
deliver such Opt-out Treasury Consideration to the Collateral Agent,
which will, for the benefit of the Company, thereupon apply such
Opt-out Treasury Consideration to secure such Holder's obligations
under the Purchase Contracts. On the Business Day immediately
preceding the first day of a Remarketing Period, the Collateral Agent,
pursuant to the terms of the Pledge Agreement, will deliver the
Pledged Notes of such Holder to the Agent. Within three Business Days
following the last day of such Remarketing Period, (A) if the
remarketing was successful, the Agent shall distribute such Notes to
the Holders thereof, and (B) if there was a Failed Remarketing on such
date, the Agent will deliver such Notes to the Collateral Agent, which
will, for the benefit of the Company, thereupon apply such Notes to
secure such Holders' obligations under the Purchase Contract and
return the Opt-out Treasury Consideration delivered by such Holders to
such Holders. A Holder that does not so deliver the Opt-out Treasury
Consideration or does
53
not so notify the agent of its election not to participate in the
remarketing pursuant to this clause (iv) shall be deemed to have
elected to participate in the remarketing.
(c) Upon the maturity of the Pledged Treasury Securities underlying
the Stripped Units and, in the event of a successful remarketing, a
Prepayment Event or a Tax Event Redemption, the Pledged Treasury
Consideration underlying the Normal Units on the Share Purchase Date, the
Collateral Agent shall remit to the Company an amount equal to the
aggregate Purchase Price applicable to such Units, as payment for the
Common Shares issuable upon settlement thereof without needing to receive
any instructions from the Holders of such Units. In the event the payments
in respect of the Pledged Treasury Securities or the Pledged Treasury
Consideration underlying a Unit is in excess of the Purchase Price of the
Purchase Contract being settled thereby, the Collateral Agent will
distribute such excess to the Agent for the benefit of the Holder of such
Unit when received.
(d) Any distribution to Holders of excess funds and interest
described in Section 5.4 (b) and (c) above shall be payable at the
Corporate Trust Office or, at the option of the Holder or the holder of
Separate Notes, as applicable, by check mailed to the address of the Person
entitled thereto at such address as it appears on the Register or by wire
transfer to an account maintained in the United States specified by the
Holder or the holder of Separate Notes, as applicable.
(e) Notwithstanding anything to the contrary herein or in the Pledge
Agreement, subject to Section 3.2 of the Pledge Agreement, the obligations
of each Holder to pay the Purchase Price are non-recourse obligations and
are payable solely out of the proceeds of any Collateral pledged to secure
the obligations of the Holders (except to the extent paid by Cash
Settlement, Early Settlement or Merger Early Settlement) and in no event
will Holders be liable for any deficiency between such payments and the
Purchase Price.
(f) Notwithstanding anything to the contrary herein, the Company
shall not be obligated to issue any Common Shares in respect of a Purchase
Contract or deliver any certificates therefor to the Holder of the related
Unit unless the Company shall have (i) received payment in full of the
aggregate Purchase Price for the Common Shares to be purchased thereunder
by such Holder in the manner herein set forth or (ii) exercised its rights
as a secured party under Section 5.4(b)(iii).
SECTION 5.5 ISSUANCE OF COMMON SHARES.
Unless a Termination Event shall have occurred on or prior to the
Share Purchase Date or an Early Settlement or a Merger Early Settlement shall
have occurred, on the Share Purchase Date, upon the Company's receipt of payment
in full of the Purchase Price for the Common Shares purchased by the Holders
pursuant to the
54
foregoing provisions of this Article and subject to Section 5.6(b) or the
Company's exercise of its rights as a secured party pursuant to Section
5.4(b(iii), the Company shall issue and deposit with the Agent, for the benefit
of the Holders of the Outstanding Units, one or more certificates representing
the newly issued Common Shares, registered in the name of the Agent (or its
nominee) as custodian for the Holders (such certificates for Common Shares,
together with any dividends or distributions for which both a record date and
payment date for such dividend or distribution has occurred after the Share
Purchase Date, being hereinafter referred to as the "Purchase Contract
Settlement Fund"), to which the Holders are entitled hereunder. Subject to the
foregoing, upon surrender of a Certificate to the Agent on or after the Share
Purchase Date, together with settlement instructions thereon duly completed and
executed, the Holder of such Certificate shall be entitled to receive in
exchange therefor a certificate representing that number of whole Common Shares
which such Holder is entitled to receive pursuant to the provisions of this
Article V (after taking into account all Units then held by such Holder)
together with cash in lieu of fractional shares as provided in Section 5.12 and
any dividends or distributions with respect to such shares constituting part of
the Purchase Contract Settlement Fund, but without any interest thereon, and the
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 provided by the Holder to the Agent. If any Common
Shares issued in respect of a Purchase Contract are to be registered to a Person
other than the Person in whose name the Certificate evidencing such Purchase
Contract is registered, no such registration shall be made unless the Person
requesting such registration has paid any transfer and other taxes required by
reason of such registration in a name other than that of the registered Holder
of such Certificate or has established to the satisfaction of the Company that
such tax either has been paid or is not payable.
SECTION 5.6 ADJUSTMENT OF SETTLEMENT RATE.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) STOCK DIVIDENDS. In case the Company shall pay or make a
dividend or other distribution on the Common Shares in Common Shares,
the Settlement Rate, as in effect at the opening of business on the
day following the date fixed for the determination of shareholders
entitled to receive such dividend or other distribution shall be
increased by dividing such Settlement Rate by a fraction of which the
numerator shall be the number of Common Shares outstanding at the
close of business on the date fixed for such determination and the
denominator shall be the sum of such number of Common Shares and the
total number of Common 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
Common Shares at the time outstanding shall not include shares held in
the treasury of the Company but shall include any
55
shares issuable in respect of any scrip certificates issued in lieu of
fractions of Common Shares. The Company will not pay any dividend or
make any distribution on Common Shares held in the treasury of the
Company.
(2) SHARE PURCHASE RIGHTS. In case the Company shall issue
rights, options or warrants to all holders of its Common Shares (that
are not available on an equivalent basis to Holders of the Units upon
settlement of the Purchase Contracts underlying such Units) entitling
them, for a period expiring within 45 days after the record date for
the determination of shareholders entitled to receive such rights,
options or warrants, to subscribe for or purchase Common Shares at a
price per share less than the Current Market Price per Common Share on
the date fixed for the determination of shareholders entitled to
receive such rights, options or warrants (other than pursuant to a
dividend reinvestment, share purchase or similar 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, the numerator of which shall be the
number of Common Shares outstanding at the close of business on the
date fixed for such determination plus the number of Common Shares
which the aggregate of the offering price of the total number of
Common Shares so offered for subscription or purchase would purchase
at such Current Market Price per Common Share and the denominator of
which shall be the number of Common Shares outstanding at the close of
business on the date fixed for such determination plus the number of
Common Shares 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 Common Shares at any time
outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of Common Shares. The Company
shall not issue any such rights, options or warrants in respect of
Common Shares held in the treasury of the Company.
(3) STOCK SPLITS; REVERSE SPLITS. In case outstanding Common
Shares shall be subdivided or split into a greater number of Common
Shares, 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 Common Shares shall each be combined into a smaller number
of Common Shares, 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
56
business on the day following the day upon which such subdivision,
split or combination becomes effective.
(4) DEBT OR ASSET DISTRIBUTIONS. (i) In case the Company
shall, by dividend or otherwise, distribute to all holders of its
Common Shares evidences of its indebtedness or assets (including
securities, but excluding any rights or warrants referred to in
paragraph (2) of this Section, shares of capital stock of any class or
series, or similar equity interests, of or relating to a subsidiary or
other business unit in the case of a Spin-Off referred to in the next
paragraph, or 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 shareholders entitled to receive such distribution by
a fraction, the numerator of which shall be the Current Market Price
per Common Share 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 Common Share and the
denominator of which shall be such Current Market Price per Common
Share, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such distribution.
In any case in which this paragraph (4) is applicable, paragraph (2)
of this Section shall not be applicable.
(ii) In the case of a Spin-Off, the Settlement Rate in effect
immediately before the close of business on the record date fixed for
determination of shareholders entitled to receive that distribution
will be increased by multiplying the Settlement Rate by a fraction,
the numerator of which is the Current Market Price per Common Share
plus the Fair Market Value of the portion of those shares of Capital
Stock or similar equity interests so distributed applicable to one
Common Share and the denominator of which is the Current Market Price
per Common Share. Any adjustment to the settlement rate under this
paragraph 4(ii) will occur on the date that is the earlier of (1) the
tenth Trading Day following the effective date of the Spin-Off and (2)
the date of the securities being offered in the Initial Public
Offering of the Spin-Off, if that Initial Public Offering is effected
simultaneously with the Spin-Off.
(5) CASH DISTRIBUTIONS. In case the Company shall, (i) by
dividend or otherwise, distribute to all holders of its Common Shares
cash (excluding any cash that is distributed in a Reorganization Event
to which
57
Section 5.6(b) applies or as part of a distribution referred to in
paragraph (4) of this Section) in an aggregate amount that, combined
together with (ii) the aggregate amount of any other distributions to
all holders of its Common Shares made exclusively in cash (other than
regular quarterly, semi-annual or annual cash dividends) 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 (iii) the aggregate of
any cash plus the fair market value as of the date or expiration of
the tender or exchange offer referred to below (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution filed with the Agent) of consideration
payable in respect of any tender or exchange offer (other than
consideration payable in respect of any odd-lot tender offer) by the
Company or any of its subsidiaries for all or any portion of the
Common Shares concluded within the 12 months preceding the date of
payment of the distribution described in clause (i) above and in
respect of which no adjustment pursuant to this paragraph (5) or
paragraph (6) of this Section has been made, exceeds 10% of the
product of the Current Market Price per Common Share on the date for
the determination of holders of Common Shares entitled to receive such
distribution times the number of Common Shares 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 shareholders
entitled to receive such distribution by a fraction (A) the numerator
of which shall be equal to the Current Market Price per Common Share
on the date fixed for such determination less an amount equal to the
quotient of (x) the combined amount distributed or payable in the
transactions described in clauses (i), (ii) and (iii) above and (y)
the number of Common Shares outstanding on such date for determination
and (B) the denominator of which shall be equal to the Current Market
Price per Common Share on such date for determination.
(6) TENDER OFFERS. In case (i) a tender or exchange offer
made by the Company or any subsidiary of the Company for all or any
portion of the Common Shares shall expire and such tender or exchange
offer (as amended upon the expiration thereof) shall require the
payment to shareholders (based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of Purchased
Shares) of 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 filed with the Agent)
that when combined together with (ii) the aggregate of the cash plus
the fair market value (as determined by the Board of Directors, whose
determination shall be
58
conclusive and described in a Board Resolution filed with the Agent),
as of the expiration of such tender or exchange offer (other than
consideration payable in respect of any odd-lot tender offer), of
consideration payable in respect of any other tender or exchange
offer, by the Company or any subsidiary of the Company for all or any
portion of the Common Shares 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 (iii) the aggregate amount of any
distributions to all holders of the Company's Common Shares made
exclusively in cash (other than regular quarterly, semi-annual or
annual cash dividends) 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 10% of the product of the Current Market Price per
Common Share 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 Common Shares 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 (A) the numerator of which shall be
equal to (x) the product of (I) the Current Market Price per Common
Share on the date of the Expiration Time and (II) the number of Common
Shares outstanding (including any tendered shares) on the Expiration
Time less (y) the amount of cash plus the fair market value
(determined as aforesaid) of the aggregate consideration payable to
shareholders based on the transactions described in clauses (i), (ii)
and (iii) above (assuming in the case of clause (i) the acceptance, up
to any maximum specified in the terms of the tender or exchange offer,
of Purchased Shares), and (B) the denominator of which shall be equal
to the product of (x) the Current Market Price per Common Share as of
the Expiration Time and (y) the number of Common Shares outstanding
(including any tendered shares) as of the Expiration Time less the
number of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares").
(7) RECLASSIFICATION. The reclassification of Common Shares
into securities including securities other than Common Shares (other
than any reclassification upon a Reorganization Event to which Section
5.6(b) applies) shall be deemed to involve (i) a distribution of such
securities other than Common Shares to all holders of Common Shares
(and the effective date of such reclassification shall be deemed to be
"the date fixed
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for the determination of shareholders entitled to receive such
distribution" and the "date fixed for such determination" within the
meaning of paragraph (4) of this Section), and (ii) a subdivision,
split or combination, as the case may be, of the number of Common
Shares outstanding immediately prior to such reclassification into the
number of Common Shares 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) "CURRENT MARKET PRICE". The "Current Market Price" per
Common Share means (a) on any day the average of the Closing Price per
Common Share on each of the 20 consecutive Trading Days ending on the
earlier of the day in question and the day before the "ex date" with
respect to the issuance or distribution requiring such computation,
(b) in the case of any Spin-Off that is effected simultaneously with
an Initial Public Offering of the securities being distributed in the
Spin-Off, the Closing Price of the Common Shares on the Trading Day on
which the initial price of the securities being distributed in the
Spin-Off is determined, and (c) in the case of any other Spin-Off, the
average of the Closing Prices per Common Share over the first 10
Trading Days after the effective date of such Spin-Off. 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 Shares trades regular way on such exchange or in such market
without the right to receive such issuance or distribution.
(9) CALCULATION OF ADJUSTMENTS. All adjustments to the
Settlement Rate shall be calculated to the nearest 1/10,000th of a
Common Share (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, that
any adjustments which by reason of this subparagraph are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment. If an adjustment is made to the Settlement Rate
pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of
this Section 5.6(a), an adjustment shall also be made to the
Applicable Market Value solely to determine which of clauses (i), (ii)
or (iii) of the definition of Settlement Rate in Section 5.1(a) will
apply on the Share Purchase Date. Such adjustment shall be made by
multiplying the Applicable Market Value by a fraction, the numerator
of which shall be the Settlement Rate immediately after such
adjustment pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or
(10) of this Section 5.6(a) and the denominator of which shall be the
Settlement Rate
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immediately before such adjustment; provided, that if such adjustment
to the Settlement Rate is required to be made pursuant to the
occurrence of any of the events contemplated by paragraph (1), (2),
(3), (4), (5), (7) or (10) of this Section 5.6(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) INCREASE OF SETTLEMENT RATE. 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 Common Shares resulting from
any dividend or distribution of Capital 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
(1) 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 Shares
outstanding immediately prior to the merger or consolidation is not
exchanged for cash, securities or other property of the Company or
another corporation),
(2) any sale, transfer, lease or conveyance to another Person
of the property of the Company as an entirety or substantially as an
entirety,
(3) any statutory exchange of securities of the Company with
another Person (other than in connection with a merger or
acquisition), or
(4) 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"),
each Common Share covered by each Purchase Contract forming part of a Unit
immediately prior to such Reorganization Event shall, after such Reorganization
Event, be converted for purposes of the Purchase Contract into the kind and
amount of securities, cash and other property receivable in such Reorganization
Event (without any interest thereon, and without any right to dividends or
distribution thereon which have a record date that is prior to the Share
Purchase Date per Common Share) by a holder of Common Shares that (i) is not a
Person with which the Company consolidated or into which the Company merged or
which merged into the Company or to which such sale or transfer was made, as the
case may be (any such Person, a "Constituent Person"), or an
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Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Shares held by Affiliates of the
Company and non-Affiliates, and (ii) failed to exercise his rights of election,
if any, as to the kind or amount of securities, cash and other property
receivable upon such Reorganization Event (provided that if the kind or amount
of securities, cash and other property receivable upon such Reorganization Event
is not the same for each Common Share held immediately prior to such
Reorganization Event by a Person 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 Common Share by a plurality of the Non-electing
Shares). On the Share Purchase Date, the Settlement Rate then in effect will be
applied to the value on the Share Purchase Date of such securities, cash or
other property.
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
Holder of each Outstanding Unit shall have the rights provided by this Section
5.6. 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 5.7 NOTICE OF ADJUSTMENTS AND CERTAIN OTHER EVENTS.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the Settlement Rate in accordance with
Section 5.6 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) as soon as practicable following the occurrence of an
event that requires an adjustment to the Settlement Rate pursuant to
Section 5.6 (or if the Company is not aware of such occurrence, as
soon as practicable after becoming so aware), provide a written notice
to the Agent of the occurrence of such event and a statement setting
forth in reasonable detail the method by which the adjustment to the
Settlement Rate was determined and setting forth the adjusted
Settlement Rate.
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(b) The Agent shall not at any time be under any duty or
responsibility to any Holder of Units 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 Common Shares, 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 Common Shares pursuant to a Purchase Contract or to comply with
any of the duties, responsibilities or covenants of the Company contained
in this Article.
SECTION 5.8 TERMINATION EVENT; NOTICE.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of Holders
to receive Contract Adjustment Payments, if any, or any Deferred Contract
Adjustment Payments and obligations of Holders to purchase Common Shares, 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 Share
Purchase Date, a Termination Event shall have occurred. Upon and after the
occurrence of a Termination Event, the Normal Units shall thereafter represent
the right to receive the Notes or the appropriate Treasury Consideration, as the
case may be, forming a part of such Normal Units, and the Stripped Units shall
thereafter represent the right to receive the Treasury Securities forming a part
of such Stripped Units, in each case in accordance with the provisions of
Section 4.3 of the Pledge Agreement. Upon the occurrence of a Termination Event,
the Company shall promptly but in no event later than two Business Days
thereafter give written notice to the Agent, the Collateral Agent and to the
Holders, at their addresses as they appear in the Register.
SECTION 5.9 EARLY SETTLEMENT.
(a) Subject to and upon compliance with the provisions of this
Section 5.9, Purchase Contracts underlying Units having an aggregate Stated
Amount equal to $1,000 or an integral multiple thereof may, at the option
of the Holder thereof, be settled early ("Early Settlement") on or prior to
10:00 a.m., New York City time, on the seventh Business Day immediately
preceding the Share Purchase Date. Holders of Stripped Units (and after a
Prepayment Event, Holders of Normal Units) may only effect Early Settlement
of the related Purchase Contracts in integral multiples of 40 Stripped
Units, and if Treasury Consideration has been substituted for the Notes as
a component in the Normal Units due to a successful remarketing or the
occurrence of a Tax Event Redemption, Purchase Contracts underlying such
Normal Units may only be settled early in integral multiples of Normal
Units such that the Treasury
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Consideration to be deposited and the Treasury Consideration to be released
are in integral multiples of $1,000. In order to exercise the right to
effect Early Settlement with respect to any Purchase Contracts, the Holder
of the Certificate evidencing the related Units shall deliver such
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
payable to the Company in immediately available funds in an amount (the
"Early Settlement Amount") equal to (A) the product of (i) the Purchase
Price multiplied by (ii) the number of Purchase Contracts with respect to
which the Holder has elected to effect Early Settlement, plus (B) 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 Contract Adjustment Payments, if any, payable on such Payment Date with
respect to such Purchase Contracts; provided that no payment shall be
required pursuant to clause (B) of this sentence if the Company shall have
elected to defer the Contract Adjustment Payments which would otherwise be
payable on such Payment Date. Except as provided in the immediately
preceding sentence and subject to Section 5.2(d), no payment or adjustment
shall be made upon Early Settlement of any Purchase Contract on any
Contract Adjustment Payments accrued on such Purchase Contract or on
account of any dividends on the Common Shares issued upon such Early
Settlement. If the foregoing requirements are first satisfied with respect
to Purchase Contracts underlying any Unit 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 Unit and if such requirements are first
satisfied after 5:00 p.m., New York City time, on a Business Day or on a
day that is not a Business Day, the "Early Settlement Date" with respect to
such Units shall be the next succeeding Business Day.
(b) Upon Early Settlement of any Purchase Contract by the Holder of
the related Units, the Company shall issue, and the Holder shall be
entitled to receive, * Common Shares on account of such Purchase Contract
(the "Early Settlement Rate"). The Early Settlement Rate shall be adjusted
in the same manner and at the same time as the Settlement Rate is adjusted
pursuant to Section 5.6. As promptly as practicable after Early Settlement
of Purchase Contracts in accordance with the provisions of this Section
5.9, the Company shall issue and shall deliver to the Agent at the
Corporate Trust Office a certificate or certificates for the full number of
Common Shares issuable upon such Early Settlement together with payment in
lieu of any fraction of a share, as provided in Section 5.12.
(c) No later than the third Business Day after the applicable Early
Settlement Date the Company shall cause (i) the Common Shares issuable upon
Early Settlement of Purchase Contracts to be issued and delivered, and (ii)
the related Pledged Notes or Pledged Treasury Consideration, in the case of
Normal
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Units, or the related Pledged Treasury Securities, in the case of Stripped
Units, to be released from the Pledge by the Collateral Agent and
transferred, in each case, to the Agent for delivery to the Holder thereof
or the Holder's designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of Common Shares from the Company and the Pledged Notes, Pledged
Treasury Consideration or Pledged Treasury Securities, as the case may be,
from 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 Certificate evidencing
the related Units, (i) transfer to the Holder the Pledged Notes, Pledged
Treasury Consideration or Pledged Treasury Securities, as the case may be,
forming a part of such Units, and (ii) deliver to the Holder a certificate
or certificates for the full number of Common Shares issuable upon such
Early Settlement together with payment in lieu of any fraction of a share,
as provided in Section 5.12.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Units evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the
Agent shall authenticate, execute on behalf of the Holder and deliver to
the Holder thereof, at the expense of the Company, a Certificate evidencing
the Units as to which Early Settlement was not effected.
(f) No Early Settlement will be permitted under this Section 5.9
unless, at the time of delivery of the Election to Settle Early form or the
time the Early Settlement is effected, there is an effective registration
statement with respect to the Common Shares to be issued and delivered in
connection with such Early Settlement, if such a registration statement is
required (in the view of counsel, which need not be in the form of a
written opinion, for either the Company or the Agent) under the Securities
Act. If such a registration statement is so required, the Company covenants
and agrees to use its commercially reasonable efforts to (A) have in effect
a registration statement covering the Common Shares to be delivered in
respect of the Purchase Contracts being settled and (B) provide a
prospectus in connection therewith, in each case in a form that the Agent
may use in connection with such Early Settlement.
SECTION 5.10 EARLY SETTLEMENT UPON CASH MERGER.
(a) In the event of a merger or consolidation of the Company of the
type described in clause (1) of Section 5.6(b) in which the Common Shares
outstanding immediately prior to such merger or consolidation are exchanged
for consideration consisting of at least 30% cash or cash equivalents (any
such event a "Cash Merger"), then the Company (or the successor to the
Company hereunder) shall be required to offer the Holder of each Unit the
right to settle the Purchase Contract underlying such Unit prior to the
Share Purchase Date
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("Merger Early Settlement") as provided herein. On or before the fifth
Business Day after the consummation of a Cash Merger, the Company or, at
the request and expense of the Company, the Agent, shall give all Holders
notice of the occurrence of the Cash Merger and of the right of Merger
Early Settlement arising as a result thereof. The Company shall also
deliver a copy of such notice to the Agent and the Collateral Agent.
Each such notice shall contain:
(i) the date, which shall be not less than 20 nor more than
30 calendar days after the date of such notice, on which the Merger
Early Settlement will be effected (the "Merger Early Settlement
Date");
(ii) the date, which shall be on or one Business Day prior to
the Merger Early Settlement Date, by which the Merger Early Settlement
right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash
Merger and the kind and amount of securities, cash and other property
receivable by the Holder upon settlement of each Purchase Contract
pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the
Purchase Price payable by the Holder to settle the Purchase Contract
will be offset against the amount of cash so receivable upon exercise
of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the
Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall
deliver to the Agent at the Corporate Trust Office on or before 5:00 p.m.,
New York City time, on the date specified in the notice the Certificate(s)
evidencing the Units with respect to which the Merger Early Settlement
right is being exercised duly endorsed for transfer to the Company or in
blank with the form of Election to Settle Early on the reverse thereof duly
completed and accompanied by payment payable to the Company in immediately
available funds in an amount equal to the Early Settlement Amount less the
amount of cash that otherwise would be deliverable by the Company or its
successor upon settlement of the Purchase Contract in lieu of Common Shares
pursuant to Section 5.6(b) and as described in the notice to Holders (the
"Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or
cause to be delivered (i) the net cash, securities and other property to be
received by such exercising Holder, equal to the Settlement Rate as
adjusted pursuant to Section 5.6, in respect of the number of Purchase
Contracts for which
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such Merger Early Settlement right was exercised, and (ii) the related
Pledged Notes or Pledged Treasury Consideration, in the case of Normal
Units, or Pledged Treasury Securities, in the case of Stripped Units, to be
released from the Pledge by the Collateral Agent and transferred, in each
case, to the the Corporate Trust Office for delivery to the Holder thereof
or its designee. In the event a Merger Early Settlement right shall be
exercised by a Holder in accordance with the terms hereof, all references
herein to Share Purchase Date shall be deemed to refer to such Merger Early
Settlement Date.
(d) Upon Merger Early Settlement of any Purchase Contracts, and
subject to receipt of such net cash, securities or other property from the
Company and the Pledged Notes, Pledged Treasury Consideration or Pledged
Treasury Securities, as the case may be, from 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 Certificate evidencing the related Units, (i) transfer
to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged
Treasury Securities, as the case may be, forming a part of such Units, and
(ii) deliver to the Holder such net cash, securities or other property
issuable upon such Merger Early Settlement together with payment in lieu of
any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with
respect to Purchase Contracts underlying less than all the Units evidenced
by a Certificate, upon such Merger Early Settlement the Company (or the
successor to the Company hereunder) shall execute and the Agent shall
authenticate, execute on behalf of the Holder and deliver to the Holder
thereof, at the expense of the Company, a Certificate evidencing the Units
as to which Merger Early Settlement was not effected.
SECTION 5.11 CHARGES AND TAXES.
The Company will pay all stock transfer and similar taxes attributable
to the initial issuance and delivery of the Common Shares pursuant to the
Purchase Contracts and in payment of any Deferred Contract Adjustment Payments;
provided, that the Company shall not be required to pay any such tax or taxes
which may be payable in respect of any exchange of or substitution for a
Certificate evidencing a Unit or any issuance of a Common Share in a name other
than that of the registered Holder of a Certificate surrendered in respect of
the Units 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
Common Share certificates or Certificates unless and 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.
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SECTION 5.12 NO FRACTIONAL SHARES.
No fractional shares or scrip representing fractional Common Shares
shall be issued or delivered upon settlement on the Share Purchase Date or upon
Early Settlement or Merger Early Settlement of any Purchase Contracts. If
Certificates evidencing more than one Purchase Contract shall be surrendered for
settlement at one time by the same Holder, the number of full Common Shares
which shall be delivered upon settlement shall be computed on the basis of the
aggregate number of Purchase Contracts evidenced by the Certificates so
surrendered. Instead of any fractional Common Share which would otherwise be
deliverable upon settlement of any Purchase Contracts on the applicable
Settlement Date or upon Early Settlement or Merger Early Settlement, the
Company, through the Agent, shall make a cash payment in respect of such
fractional shares in an amount equal to the value of such fractional shares
times the Applicable Market Value. 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 5.12 in a timely manner.
ARTICLE VI
REMEDIES
SECTION 6.1 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PURCHASE
CONTRACT ADJUSTMENT PAYMENTS AND PURCHASE COMMON SHARES.
The Holder of any Unit shall have the right, which is absolute and
unconditional,
(a) subject to the right of the Company to defer payment thereof
pursuant to Section 5.3, and to the forfeiture of any Deferred Contract
Adjustment Payments upon Early Settlement pursuant to Section 5.9 or upon
Merger Early Settlement pursuant to Section 5.10 or upon the occurrence of
a Termination Event, to receive payment of each installment of the Contract
Adjustment Payments, if any, with respect to the Purchase Contract
constituting a part of such Unit on the respective Payment Date for such
Unit, and to institute suit for the enforcement of such right to receive
Contract Adjustment Payments, and
(b) to purchase Common Shares pursuant to the Purchase Contract
constituting a part of such Unit and to institute suit for the enforcement
of any such right to purchase Common Shares, and such rights shall not be
impaired without the consent of such Holder.
SECTION 6.2 RESTORATION OF RIGHTS AND REMEDIES.
If any Holder has instituted any proceeding to enforce any right or
remedy under this Agreement and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Holder, then
and in every such case,
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subject to any determination in such proceeding, the Company and such Holder
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of such Holder shall continue as though
no such proceeding had been instituted.
SECTION 6.3 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates in Section 3.10(f),
no right or remedy herein conferred upon or reserved to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.4 DELAY OR OMISSION NOT WAIVER.
No delay or omission of any Holder to exercise any right or remedy
upon a default shall impair any such right or remedy or constitute a waiver of
any such right. Every right and remedy given by this Article or by law to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
SECTION 6.5 UNDERTAKING FOR COSTS.
All parties to this Agreement agree, and each Holder of a Unit, by its
acceptance of such Unit 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 Units, or to any suit instituted by any Holder for the enforcement
of distributions on any Notes or Contract Adjustment Payments, if any, on any
Purchase Contract on or after the respective Payment Date therefor in respect of
any Unit held by such Holder, or for enforcement of the right to purchase Common
Shares under the Purchase Contract constituting part of any Unit held by such
Holder.
SECTION 6.6 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the
69
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, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VII
THE AGENT
SECTION 7.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) (1) The Agent undertakes to perform, with respect to the Units
and Separate Notes, such duties and only such duties as are specifically
set forth in this Agreement and the Pledge Agreement, and no implied
covenants or obligations shall be read into this Agreement against the
Agent; and
(2) in the absence of bad faith, willful misconduct or
negligence on its part, the Agent may, with respect to the Units and
Separate Notes, 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 (but need not confirm or investigate the accuracy of
the mathematical calculations or other facts stated therein).
(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, its own bad faith or its own willful misconduct, except
that:
(1) this paragraph (b) shall not be construed to limit the
effect of paragraph (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.
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(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.
(d) The Agent is authorized to execute and deliver the Pledge
Agreement in its capacity as Agent. The Agent shall be entitled to all of
the rights, privileges, immunities and indemnities contained in this
Agreement with respect to any duties of the Agent under, or actions taken,
omitted to be taken or suffered by the Agent pursuant to the Pledge
Agreement.
SECTION 7.2 NOTICE OF DEFAULT.
Within 30 days after the occurrence of any default by the Company
hereunder of which a Responsible Officer of the Agent has actual knowledge, the
Agent shall transmit by mail to the Company and the Holders of Units, as their
names and addresses appear in the applicable Register, notice of such default
hereunder, unless such default shall have been cured or waived.
SECTION 7.3 CERTAIN RIGHTS OF AGENT.
Subject to the provisions of Section 7.1:
(a) the Agent may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably 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 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;
71
(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
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 given a reasonable opportunity to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
(f) the Agent may execute any of the powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys or an
Affiliate of the Agent and the Agent shall not be responsible for any
misconduct or negligence on the part of any agent or attorney or an
Affiliate appointed by the Agent with due care PROVIDED that such agent or
attorney or Affiliate agrees for the benefit of the Company and the Holders
that it is and shall be subject to the same standards as the Agent's
hereunder.
SECTION 7.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF UNITS.
The recitals contained herein and in the Certificates shall be taken
as the statements of the Company and the Agent assumes no responsibility for
their accuracy. The Agent makes no representations as to the validity or
sufficiency of either this Agreement or of the Units, or of the Pledge Agreement
or the Pledge. The Agent shall not be accountable for the use or application by
the Company of the Units or the proceeds therefrom or in respect of the Purchase
Contracts.
SECTION 7.5 MAY HOLD UNITS.
Any Registrar or any other agent of the Company, or the Agent and its
Affiliates, in their individual or any other capacity, may become the owner or
pledgee of Units and may otherwise deal with the Company, the Collateral Agent
or any other Person with the same rights it would have if it were not Registrar
or such other agent, or the Agent.
SECTION 7.6 MONEY HELD IN CUSTODY.
Money held by the Agent in custody hereunder need not be segregated
from the Agent's other funds except to the extent required by law or provided
herein. The Agent shall be under no obligation to invest or pay interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 7.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
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(a) to pay to the Agent from time to time reasonable compensation for
all services rendered by it hereunder;
(b) 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 reasonable
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence,
willful misconduct or bad faith; and
(c) to indemnify the Agent and any predecessor Agent for, and to hold
it harmless against, any loss, liability or expense incurred without
negligence, willful misconduct 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. The Agent shall promptly notify the Company
of any third party claim which may give rise to the indemnity hereunder and
give the Company the opportunity to control the defense of such claim with
counsel reasonably satisfactory to the indemnified party, and no such claim
shall be settled without the written consent of the Company, which consent
shall not be unreasonably withheld.
For purposes of this Section 7.7, "Agent" shall include any
predecessor Agent; provided, however, that the negligence, bad faith or willful
misconduct of any Agent hereunder shall not affect the rights of any other Agent
hereunder.
The provisions of this Section 7.7 shall survive the termination of
this Agreement, the satisfaction or discharge of the Units and/or the Separate
Notes and/or the resignation or removal of the Agent.
SECTION 7.8 CORPORATE AGENT REQUIRED; ELIGIBILITY.
There shall at all times be an Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having (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, 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
73
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 7.9 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 7.10.
(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 7.10
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 Units 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 Unit for at least six
months; or
(2) the Agent shall cease to be eligible under Section 7.8
and shall fail to resign after written request therefor by the Company
or by any such Holder; or
(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, (x) the Company by a Board Resolution may remove
the Agent, or (y) any Holder who has been a bona fide Holder of a Unit for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Agent and the appointment of a successor Agent.
74
(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 reason,
the Company, by a Board Resolution, shall promptly appoint a successor
Agent and shall comply with the applicable requirements of Section 7.10. If
no successor Agent shall have been so appointed by the Company and accepted
appointment in the manner required by Section 7.10, any Holder who has been
a bona fide Holder of a Unit for at least six months may, on behalf of
itself 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 as their names and
addresses appear in the applicable Register. Each notice shall include the
name of the successor Agent and the address of its Corporate Trust Office.
SECTION 7.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor 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. 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 7.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Person into which the Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any Person
succeeding to all or
75
substantially all the corporate trust business of the Agent, shall be the
successor of the Agent hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Certificates shall have been authenticated and executed on behalf of the
Holders, but not delivered, by the Agent then in office, any successor to such
Agent shall adopt such authentication and execution and deliver the Certificates
so authenticated and executed with the same effect as if such successor Agent
had itself authenticated and executed such Units.
SECTION 7.12 PRESERVATION OF INFORMATION.
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 Registrar.
SECTION 7.13 NO OBLIGATIONS OF AGENT.
Except to the extent otherwise provided in this Agreement, the Agent
assumes no obligation and shall not be subject to any liability under this
Agreement, the Pledge Agreement or any Purchase Contract in respect of the
obligations of the Holder of any Unit thereunder. The Company agrees, and each
Holder of a Certificate, by such Holder's acceptance thereof, shall be deemed to
have agreed, that the Agent's execution of the Certificates on behalf of the
Holders shall be solely as agent and attorney-in-fact for the Holders, and that
the Agent shall have no obligation to perform such Purchase Contracts on behalf
of the Holders, except to the extent expressly provided in Article V.
SECTION 7.14 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 Units or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Units. Such compliance shall include, without limitation, the preparation
and timely filing of required returns and the timely payment of all amounts
required to be withheld to the appropriate taxing authority or its
designated agent.
(b) The Agent shall comply with any reasonable written direction
timely received from the Company with respect to the execution or
certification of any required documentation and the application of such
requirements to particular payments or Holders or in other particular
circumstances, and may for purposes of this Agreement conclusively rely on
any such direction in accordance with the provisions of Section 7.1(a)(2).
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available,
on
76
written request, to the Company or its authorized representative within a
reasonable period of time after receipt of such request.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
SECTION 8.1 SUPPLEMENTAL AGREEMENTS WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company 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:
(a) 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 Certificates; or
(b) 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
(c) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent; or
(d) to make provision with respect to the rights of Holders pursuant
to the requirements of Section 5.6(b) or 5.10; or
(e) 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 8.2 SUPPLEMENTAL AGREEMENTS WITH CONSENT OF HOLDERS.
(a) With the consent of the Holders of not less than a majority of
the outstanding Purchase Contracts voting together as one class, by Act of
said Holders delivered to the Company and the 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 Purchase Contracts, or the provisions of this
Agreement or the rights of the Holders in respect of the Units; provided,
however, that, except as contemplated herein, no such supplemental
agreement shall, without the consent of the Holder of each Outstanding Unit
affected thereby:
(1) change any Payment Date;
77
(2) change the amount or the type of Collateral required to
be Pledged to secure a Holder's obligations under the Purchase
Contract, impair the right of the Holder of any Purchase Contract to
receive distributions on the related Collateral (except for the rights
of Holders of Normal Units to substitute the Treasury Securities for
the Pledged Notes or Pledged Treasury Consideration or the rights of
holders of Stripped Units to substitute Notes or appropriate Treasury
Consideration for the Pledged Treasury Securities) or otherwise
materially adversely affect the Holder's rights in or to such
Collateral;
(3) reduce any Contract Adjustment Payments or any Deferred
Contract Adjustment Payment, or change any place where, or the coin or
currency in which, any Contract Adjustment Payment is payable or
increase any amounts payable in respect of the Units or decrease any
other amounts receivable by Holders in respect of the Units;
(4) impair the right to institute suit for the enforcement of
any Purchase Contract, any Contract Adjustment Payment, if any, or any
Deferred Contract Adjustment Payment, if any;
(5) reduce the number of Common Shares to be purchased
pursuant to any Purchase Contract, increase the price to purchase
Common Shares upon settlement of any Purchase Contract, change the
Share Purchase Date or otherwise materially adversely affect the
Holder's rights under any Purchase Contract; or
(6) reduce the percentage of the outstanding Purchase
Contracts the consent of whose Holders is required for any such
supplemental agreement;
PROVIDED, that if any amendment or proposal referred to above would
adversely affect only the Normal Units or the Stripped Units, then only the
affected class of Holder as of the record date for the Holders entitled to
vote thereon will be entitled to vote on or consent to such amendment or
proposal, and such amendment or proposal shall not be effective except with
the consent of Holders of not less than a majority of such class; provided,
however, that no such agreement, whether with or without the consent of
Holders, shall affect Section 3.16.
(b) 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.
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SECTION 8.3 EXECUTION OF SUPPLEMENTAL AGREEMENTS.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Agent shall be entitled to receive
and (subject to Section 7.1) shall be fully protected in relying upon, an
Officer's Certificate and an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement and
that all conditions precedent to the execution of such supplemental agreement
have been satisfied. The Agent shall enter into any such supplemental agreement
which does not materially adversely affect the Agent's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 8.4 EFFECT OF SUPPLEMENTAL AGREEMENTS.
Upon the execution of any supplemental agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Certificates theretofore or thereafter authenticated, executed on behalf of
the Holders and delivered hereunder shall be bound thereby.
SECTION 8.5 REFERENCE TO SUPPLEMENTAL AGREEMENTS.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the 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 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 Certificates.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY
PROPERTY EXCEPT UNDER CERTAIN CONDITIONS.
The Company covenants that, so long as any Units are outstanding,
it will not (a) merge with or into or consolidate with any other Person or
(b) transfer, lease or convey all or substantially all its assets to any
Person, unless (i) either the Company shall be the continuing entity, or the
successor (if other than the Company) shall be a corporation, partnership or
trust organized and existing under the laws of Bermuda or the United States
of America or a State thereof or the District of Columbia and such Person
shall expressly assume all the obligations of the Company under the Purchase
Contracts, this Agreement, the Remarketing Agreement and the Pledge Agreement
by one or more
79
supplemental agreements in form reasonably satisfactory to the Agent and the
Collateral Agent, executed and delivered to the Agent and the Collateral Agent
by such Person, and (ii) the Company or such successor, as the case may be,
shall not, immediately after such merger or consolidation, or such transfer,
lease or conveyance, be in default in the performance of any covenant or
condition hereunder, under any of the Purchase Contracts, under the Remarketing
Agreement or under the Pledge Agreement.
SECTION 9.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
(a) In case of any such consolidation, merger, transfer, lease or
conveyance and upon any such assumption by a successor entity in accordance
with Section 9.1, such successor entity 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 entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of
the Certificates evidencing Units 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 Certificates which previously shall have been
signed and delivered by the officers of the Company to the Agent for
authentication, execution on behalf of the Holder and delivery, and any
Certificate evidencing Units which such successor entity thereafter shall
cause to be signed and delivered to the Agent for that purpose. All the
Certificates so issued shall in all respects have the same legal rank and
benefit under this Agreement as the Certificates theretofore or thereafter
issued in accordance with the terms of this Agreement as though all of such
Certificates had been issued at the date of the execution hereof.
(b) In case of any such consolidation, merger, transfer, lease or
conveyance such change in phraseology and form (but not in substance) may
be made in the Certificates evidencing Units thereafter to be issued as may
be appropriate.
SECTION 9.3 OPINION OF COUNSEL GIVEN TO AGENT.
The Agent, subject to Sections 7.1 and 7.3, shall receive an Opinion
of Counsel as conclusive evidence that any such consolidation, merger, transfer,
lease 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.
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ARTICLE X
COVENANTS
SECTION 10.1 PERFORMANCE UNDER PURCHASE CONTRACTS.
The Company covenants and agrees for the benefit of the Holders from
time to time of the Units 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 10.2 MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company will maintain in the Borough of Manhattan, The City
of New York an office or agency where Certificates may be presented or
surrendered for acquisition of Common Shares upon settlement of the
Purchase Contracts on any Settlement Date and for transfer of Collateral
upon occurrence of a Termination Event, where Certificates may be
surrendered for registration of transfer or exchange, for a Collateral
Substitution or reestablishment of Normal Units and where notices and
demands to or upon the Company in respect of the Units 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.
(b) The Company may also from time to time designate one or more
other offices or agencies where Certificates may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the Borough of Manhattan, The City of New
York for such purposes. The Company will give prompt written notice to the
Agent of any such designation or rescission and of any change in the
location of any such other office or agency. The Company hereby designates
as the place of payment for the Units the Corporate Trust Office and
appoints the Agent at its Corporate Trust Office as paying agent in such
city.
SECTION 10.3 COMPANY TO RESERVE COMMON SHARES.
The Company shall at all times prior to the Share Purchase Date
reserve and keep available, free from preemptive rights, out of its authorized
but unissued Common Shares the maximum number of Common Shares issuable against
tender of
81
payment in respect of all Purchase Contracts constituting a part of the Units
evidenced by Outstanding Certificates.
SECTION 10.4 COVENANTS AS TO COMMON SHARES.
The Company covenants that all Common Shares which may be issued
against tender of payment in respect of any Purchase Contract constituting a
part of the Outstanding Units will, upon issuance, be duly authorized, validly
issued, fully paid and nonassessable.
SECTION 10.5 STATEMENTS OF OFFICER 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 such Officers may have knowledge. In the event the Company shall change
its fiscal year at any time the Units are outstanding, the Company shall
notify the Agent of the effective date of such change.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By:
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Purchase Contract Agent
By:
-------------------------------------
Name:
Title:
EXHIBIT A
FORM OF NORMAL UNITS CERTIFICATE
(FORM OF GLOBAL CERTIFICATE LEGEND)
[THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE
CONTRACT AGREEMENT (AS DEFINED ON THE REVERSE HEREOF) AND IS REGISTERED IN THE
NAME OF THE CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF
THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE
PURCHASE CONTRACT AGREEMENT.]*
[SO LONG AS DTC IS THE DEPOSITARY, INSERT: Unless this Certificate is presented
by an authorized representative of The Depository Trust Company (55 ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) to the Company or its agent for registration or
transfer, exchange or payment, and any Certificate issued is registered in the
name of Cede & Co., or such other name as requested by an authorized
representative of the Depository Trust Company, and any payment hereon is made
to Cede & Co., ANY TRANSFER PLEDGE OR OTHER USE HEREOF OR OTHERWISE BY A PERSON
IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.]
(Form of Face of Normal Units Certificate)
Platinum Underwriters Holdings, Ltd.
___% Adjustable Conversion Rate Equity Security Units
No._______________ CUSIP No.
Number of Normal Units _____________
This Normal Units Certificate certifies that _____ is the registered
Holder of the number of Normal Units set forth above. Each Normal Unit
represents (i) either (a) a 1/40, or 2.5%, beneficial ownership interest of the
Holder in one % Senior Note due 2007 (the "Note") of Platinum Underwriters
Finance, Inc., a Delaware corporation, having a principal amount of $1,000,
subject to the Pledge of such Note by such Holder pursuant to the Pledge
Agreement, or (b) if the Note has been remarketed by the Remarketing Agent (or
if the Holder has elected not to have the Note remarketed or a Tax Event
Redemption has occurred), the appropriate Treasury Consideration, subject to the
Pledge of such Treasury Consideration by such Holder pursuant to the Pledge
Agreement, and (ii) the rights and obligations of the Holder under one Purchase
Contract with Platinum Underwriters Holdings, Ltd., a Bermuda corporation (the
"Company").
----------
* To be inserted in Global Certificates only.
A-1
Each Normal Unit will have a stated amount of $25 (the "Stated Amount"). All
capitalized terms used herein which are defined in the
Purchase Contract
Agreement have the meaning set forth therein.
Pursuant to the Pledge Agreement, the interest in the Note or the
appropriate Treasury Consideration, as the case may be, constituting part of
each Normal Unit evidenced hereby has been pledged to the Collateral Agent, for
the benefit of the Company, to secure the obligations of the Holder under the
Purchase Contract comprising a part of such Normal Unit to purchase Common
Shares of the Company. Prior to the purchase of Common Shares under each
Purchase Contract, such Purchase Contracts shall not entitle the Holders of
Normal Units Certificates to any of the rights of a holder of Common Shares,
including without limitation, the right to vote or receive any dividends or
other payments or to consent or to receive notice as shareholders in respect of
the meetings of shareholders, or for the election of directors of the Company or
for any other matter or any other rights whatsoever as shareholder of the
Company.
The Pledge Agreement provides that all payments in respect of the
Pledged Notes or Pledged Treasury Consideration received by the Collateral
Agent shall be paid by the Collateral Agent by wire transfer in same day
funds (i) in the case of (A) quarterly cash distributions on Normal Units
which include Pledged Notes or Pledged Treasury Consideration and (B) any
payments in respect of the Notes or Treasury Consideration, as the case may
be, that have been released from the Pledge pursuant to the Pledge Agreement,
to the Agent to the account designated by the Agent, no later than 10:00
a.m., 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 9:00 a.m., New
York City time, on a Business Day, then such payment shall be made no later
than 9:30 a.m., New York City time, on the next succeeding Business Day) and
(ii) in the case of payments in respect of any Pledged Notes or Pledged
Treasury Consideration, as the case may be, to be paid upon settlement of
such Holder's obligations to purchase Common Shares under the Purchase
Contract, to the Company on the Share Purchase Date (as defined herein) in
accordance with the terms of the Pledge Agreement, in full satisfaction of
the respective obligations of the Holders of the Normal Units of which such
Pledged Notes or Pledged Treasury Consideration are a part under the Purchase
Contracts forming a part of such Normal Units. Quarterly distributions on
Normal Units which include Pledged Notes or Pledged Treasury Consideration
(other than Prepayment Treasury Consideration) which are payable quarterly in
arrears on *, *, *, and * each year, commencing *, 2002 (a "Payment Date"),
shall, subject to receipt thereof by the Agent from the Trustee or Collateral
Agent, as the case may be, be paid to the Person in whose name this Normal
Units Certificate (or a Predecessor Normal Units Certificate) is registered
at the close of business on the Record Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Normal Units Certificate to purchase, and the Company to sell, on *, 2005 (the
"Share Purchase Date"), at a price equal to $25 (the "Purchase Price"), a number
of Common
A-2
Shares, $0.01 par value per share ("Common Shares"), of the Company, equal to
the Settlement Rate, unless on or prior to the Share Purchase Date there shall
have occurred a Termination Event or an Early Settlement or Merger Early
Settlement with respect to the Normal Units of which such Purchase Contract is a
part, all as provided in the
Purchase Contract Agreement, as defined and more
fully described on the reverse hereof. The Purchase Price for the Common Shares
purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be satisfied on the Share Purchase Date by either (i) the
application of payments received with regard to Pledged Treasury Consideration,
or (ii) the exercise of the Company's rights as a secured party in connection
with the Pledged Notes, as the case may be.
Payments on the Notes or the appropriate Treasury Consideration 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 Normal Units Register or by wire transfer to an
account specified by the Company.
The Company shall pay on each Payment Date in respect of each Purchase
Contract forming part of a Normal Unit evidenced hereby an amount (the "Contract
Adjustment Payments") equal to *% per year of the Stated Amount, computed on the
basis of a 360-day year of twelve 30-day months, subject to deferral at the
option of the Company as provided in the
Purchase Contract Agreement and more
fully described on the reverse hereof (provided that if on any date on which
Contract Adjustment Payments are to be made on the Purchase Contracts is not a
Business Day, then payment of the Contract Adjustment Payments payable on that
date will be made on the next succeeding day which is a Business Day, and no
interest or payment will be paid in respect of the delay, except that if such
next succeeding Business Day is in the next succeeding calendar year, such
payment will be made on the immediately preceding Business Day). Such Contract
Adjustment Payments shall be payable to the Person in whose name this Normal
Units Certificate (or a Predecessor Normal Units Certificate) is registered at
the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments 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
Normal Units Register or by wire transfer to the account designated by such
Person in writing.
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 Normal Units 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.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
-------------
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By:
-------------------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase
Contracts evidenced hereby)
By: JPMORGAN CHASE BANK,
not individually but solely as
Attorney-in-Fact of such Holder
By:
----------------------------------
Name:
Title:
A-4
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Normal Units Certificates referred to in the within
mentioned Purchase Contract Agreement.
JPMORGAN CHASE BANK,
as Purchase Contract Agent
Dated: By:
---------------- ----------------------------------
Authorized Officer
A-5
(Form of Reverse of Normal Units Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of *, 2002 (as may be supplemented from time to
time, the "Purchase Contract Agreement"), between the Company and JPMorgan Chase
Bank, as Purchase Contract Agent (including its successors thereunder, 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 Normal
Units Certificates are, and are to be, executed and delivered. All defined terms
used but not defined in this Certificate have the meanings ascribed to them in
the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby obligates the Holder of this
Normal Units Certificate to purchase, and the Company to sell, on the Share
Purchase Date at a price equal to $25 (the "Purchase Price"), a number of Common
Shares of the Company equal to the Settlement Rate, unless, on or prior to the
Share Purchase Date, there shall have occurred a Termination Event or a Cash
Settlement, Early Settlement or Merger Early Settlement with respect to the Unit
of which such Purchase Contract is a part. The "Settlement Rate" is equal to (a)
if the Applicable Market Value (as defined below) is equal to or greater than $*
(the "Threshold Appreciation Price"), * Common Shares per Purchase Contract, (b)
if the Applicable Market Value is less than the Threshold Appreciation Price but
is greater than $*, the number of Common Shares per Purchase Contract equal to
the Purchase Price divided by the Applicable Market Value and (c) if the
Applicable Market Value is equal to or less than $*, * Common Shares per
Purchase Contract, in each case subject to adjustment as provided in the
Purchase Contract Agreement. No fractional Common Shares 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 Price
per Common Share on each of the 20 consecutive Trading Days ending on the third
Trading Day immediately preceding the Share Purchase Date or, in the event of a
Cash Merger, the Cash Merger Date.
The "Closing Price" of the Common Shares on any date of determination
means the closing sale price (or, if no closing sale price is reported, the last
reported sale price) of the Common Shares on the New York Stock Exchange (the
"NYSE") on such date or, if the Common Shares are 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 Shares are so
listed, or if the Common Shares are not so listed on a United States national or
regional securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Shares are not so reported, the last quoted bid price for the Common
Shares 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 Shares on such date as determined by a nationally
recognized independent investment banking firm retained for this purpose by the
Company.
A-6
A "Trading Day" means a day on which the Common Shares (A) are 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 Shares at the close of business on such day.
Each Purchase Contract evidenced hereby may be settled prior to the
Share Purchase Date through Cash Settlement, Early Settlement or Merger Early
Settlement, in accordance with the terms of the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Normal Units Certificate shall pay the Purchase Price for the
Common Shares purchased pursuant to each Purchase Contract evidenced hereby (i)
by effecting a Cash Settlement, an Early Settlement or Merger Early Settlement,
(ii) by application of payments received in respect of the Pledged Treasury
Consideration acquired from the proceeds of a remarketing of the related Pledged
Notes underlying the Normal Units represented by this Normal Units Certificate
as contemplated by Section 5.4 of the Purchase Contract Agreement or (iii) if
the Holder has elected not to participate in the remarketing, by application of
payments received in respect of the Pledged Opt-out Treasury Consideration
deposited by such Holder in respect of such Purchase Contract or (iv) if a Tax
Event Redemption has occurred prior to the successful remarketing of the Notes
as contemplated by Section 5.4 of the Purchase Contract Agreement, by
application of payments received in respect of the Pledged Treasury
Consideration purchased by the Collateral Agent on behalf of the Holder of this
Normal Units Certificate. If, as provided in the Purchase Contract Agreement,
upon the occurrence of a Last Failed Remarketing the Collateral Agent, for the
benefit of the Company, exercises its rights as a secured creditor with respect
to the Pledged Notes related to this Normal Units Certificate, any accrued and
unpaid interest on such Pledged Notes will become payable by the Company to the
Holder of this Normal Units Certificate in the manner provided for in the
Purchase Contract Agreement.
Under and subject to the terms of the Pledge Agreement and the
Purchase Contract Agreement, the Agent will be entitled to exercise the voting
and any other consensual rights pertaining to the Pledged Notes, but only to the
extent instructed by the Holders as described below. Upon receipt of notice of
any meeting at which holders of Notes are entitled to vote or upon the
solicitation of consents, waivers or proxies of holders of Notes, the Agent
shall, as soon as practicable thereafter, mail to the Holders of Normal Units a
notice (a) containing such information as is contained in the notice or
solicitation, (b) stating that each such Holder on the record date set by the
Agent therefor (which, to the extent possible, shall be the same date as the
record date for determining the holders of Notes entitled to vote) shall be
entitled to instruct the Agent as to the exercise of the voting rights
pertaining to the Pledged Notes constituting a part of such Holder's Normal
Units and (c) stating the manner in which such instructions may be given. Upon
the written request of any Holder of Normal Units on such record date, the Agent
shall endeavor insofar as practicable to vote or cause to be voted, in
accordance
A-7
with the instructions set forth in such request the maximum number of Pledged
Notes as to which any particular voting instructions are received. In the
absence of specific instructions from the Holder of a Normal Unit, the Agent
shall abstain from voting the Pledged Note evidenced by such Normal Unit.
The Normal Units Certificates are issuable only in registered form and
only in denominations of a single Normal Unit and any integral multiple thereof.
The transfer of any Normal Units Certificate will be registered and Normal Units
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The Normal Units 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 of a Normal Units Certificate, but the
Company and the Agent may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Certificates, other than exchanges not
involving any transfer as provided for in the Purchase Contract Agreement. The
Holder of a Normal Unit may substitute for the Pledged Notes or Pledged Treasury
Consideration securing its obligations under the related Purchase Contract
Treasury Securities in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement. From and after such Collateral Substitution,
the Unit for which such Pledged Treasury Securities secures the Holder's
obligation under the Purchase Contract shall be referred to as a "Stripped
Unit." A Holder that elects to substitute Treasury Securities for Pledged Notes
or Pledged Treasury Consideration, thereby creating Stripped Units, shall be
responsible for any fees or expenses payable in connection therewith. Except as
provided in the Purchase Contract Agreement, for so long as the Purchase
Contract underlying a Normal Unit remains in effect, such Normal Unit shall not
be separable into its constituent parts, and the rights and obligations of the
Holder of such Normal Units in respect of the Pledged Note or Pledged Treasury
Consideration and Purchase Contract comprising such Normal Unit may be acquired,
and may be transferred and exchanged, only as a Normal Unit.
A Holder of Stripped Units may reestablish Normal Units at any time
from and after the date of the Purchase Contract Agreement and on or prior to
the second Business Day immediately preceding the Share Purchase Date by
depositing with the Collateral Agent the Notes or the appropriate Treasury
Consideration in exchange for the release of the Pledged Treasury Securities in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
Subject to the next succeeding paragraph, the Company shall pay, on
each Payment Date, the Contract Adjustment Payments, if any, payable in respect
of each Purchase Contract to the Person in whose name the Normal Units
Certificate (or one or more Predecessor Normal Units Certificates) evidencing
such Purchase Contract is registered on the Normal Units Register at the close
of business on the Record Date next preceding such Payment Date. The Contract
Adjustment Payments, if any, will be payable at the Corporate Trust Office or,
at the option of the Company, by check mailed to the address of the Person
entitled thereto at such Person's address as it appears on the
A-8
Normal Units Register or by wire transfer to the account designated by such
Person in writing.
The Company shall have the right, at any time prior to the Share
Purchase Date, to defer the payment of any or all of the Contract Adjustment
Payments 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 each such
Contract Adjustment Payments as provided in the Purchase Contract Agreement. Any
Contract Adjustment Payments so deferred shall, to the extent permitted by law,
accrue additional Contract Adjustment Payments thereon at the rate of *% per
year (computed on the basis of a 360-day year of twelve 30-day months),
compounding on each succeeding Payment Date, until paid in full (such deferred
installments of Contract Adjustment Payments, if any, together with the
additional Contract Adjustment Payments, if any, accrued thereon, are referred
to herein as the "Deferred Contract Adjustment Payments"). Deferred Contract
Adjustment Payments, if any, 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 Adjustment Payments may be deferred to a date that is
after the Share Purchase Date and no such deferral period may end other than on
a Payment Date.
In the event that the Company elects to defer the payment of Contract
Adjustment Payments on the Purchase Contracts until a Payment Date prior to the
Share Purchase Date, then all Deferred Contract Adjustment Payments, if any,
shall be payable to the registered Holders as of the close of business on the
Record Date immediately preceding such Payment Date.
The Company's obligations with respect to Contract Adjustment Payments
(including any accrued or Deferred Contract Adjustment Payments) will be
subordinated and junior in right of payment to the Company's obligations under
any Senior Indebtedness.
In the event that the Company elects to defer the payment of Contract
Adjustment Payments on the Purchase Contracts until the Share Purchase Date, the
Holder of this Normal Units Certificate will receive on the Share Purchase Date,
in lieu of a cash payment, a number of Common Shares (in addition to the number
of Common Shares equal to the Settlement Rate) equal to (i) the aggregate amount
of Deferred Contract Adjustment Payments payable to the Holder of this Normal
Units Certificate divided by (ii) the Applicable Market Value.
In the event the Company exercises its option to defer the payment of
Contract Adjustment Payments, then, until the Deferred Contract Adjustment
Payments have been paid, the Company shall not, and will not permit any
subsidiary of the Company to, declare or pay dividends on, make distributions
with respect to, or redeem, purchase or acquire, or make a liquidation payment
with respect to, any of the Company's Capital Stock other than (i) purchases,
redemptions or acquisitions of shares of the Company's Capital Stock in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of employees, officers, directors
A-9
or agents or a stock purchase or dividend reinvestment plan, or the satisfaction
by the Company of its obligations pursuant to any contract or security
outstanding on the date the Company exercises its rights to defer the Contract
Adjustment Payments; (ii) as a result of a reclassification of the Company's
Capital Stock or the exchange or conversion of one class or series of the
Company's Capital Stock for another class or series of the Company's Capital
Stock; (iii) the purchase of fractional interests in shares of any series of the
Company's Capital Stock pursuant to the conversion or exchange provisions of
such Capital Stock or the security being converted or exchanged; (iv) dividends
or distributions in any series of the Company's Capital Stock (or rights to
acquire Capital Stock) or repurchases, acquisitions or redemptions of the
Company's Capital Stock in connection with the issuance or exchange of any
series of the Company's Capital Stock (or securities convertible into or
exchangeable for shares of the Company's Capital Stock); or (v) redemptions,
exchanges or repurchases of any rights outstanding under a shareholder rights
plan or the declaration or payment thereunder of a dividend or distribution of
or with respect to rights in the future.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive accumulated Contract Adjustment Payments, if any, or any
Deferred Contract Adjustment Payments and the obligations of the Holders to
purchase Common Shares, 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 Share Purchase Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, the Company shall promptly
but in no event later than two Business Days thereafter give written notice to
the Agent, the Collateral Agent and to the Holders, at their addresses as they
appear in the Normal Units Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Notes or
Pledged Treasury Consideration from the Pledge in accordance with the provisions
of the Pledge Agreement.
Upon registration of transfer of this Normal Units 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, the Purchase Contracts evidenced hereby and the Pledge Agreement and
the transferor shall be released from the obligations under the Purchase
Contract Agreement, the Purchase Contracts evidenced by this Normal Units
Certificate and the Pledge Agreement. The Company covenants and agrees, and the
Holder, by its acceptance hereof, likewise covenants and agrees, to be bound by
the provisions of this paragraph.
The Holder of this Normal Units Certificate, by its acceptance hereof,
irrevocably authorizes the Agent to enter into and perform the related Purchase
Contracts forming part of the Normal Units evidenced hereby on his behalf as his
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and
A-10
provisions thereof, covenants and agrees to perform such Holder's 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 such Holder's behalf as attorney-in-fact, and consents to the
Pledge of the Notes or the appropriate Treasury Consideration underlying this
Normal Units Certificate pursuant to the Pledge Agreement. The Holder further
covenants and agrees, that, to the extent and in the manner provided in the
Purchase Contract Agreement and the Pledge Agreement, but subject to the terms
thereof, payments in respect of the Pledged Notes or the Pledged Treasury
Consideration to be paid upon settlement of such Holder's obligations to
purchase Common Shares under the Purchase Contract, shall be paid on the Share
Purchase Date by the Collateral Agent to the Company in satisfaction of such
Holder's obligations under such Purchase Contract and such Holder shall acquire
no right, title or interest in such payments. The obligations of each Holder to
pay the Purchase Price are non-recourse obligations and except to the extent
paid by Cash Settlement, Early Settlement or Merger Early Settlement, are
payable solely out of the proceeds of any Collateral pledged to secure the
obligations of the Holders and in no event will Holders be liable for any
deficiency between such payments and the Purchase Price. Notwithstanding
anything to the contrary herein, the Company shall not be obligated to issue any
Common Shares in respect of a Purchase Contract or deliver any certificates
therefor to the Holder of the related Unit unless the Company shall have (i)
received payment in full of the aggregate Purchase Price for the Common Shares
to be purchased thereunder by such Holder in the manner herein set forth or (ii)
exercised its rights as a secured party under Section 5.4(b)(iii) of the
Purchase Contract Agreement.
Each Holder of any Unit, and each Beneficial Owner thereof, by its
acceptance thereof or of its interest therein, further agrees to treat (i)
itself as the owner of the related Notes, Treasury Consideration or Treasury
Securities, as the case may be, and (ii) the Notes as indebtedness of Platinum
Underwriters Finance, Inc. in each case, for United States federal, state and
local income and franchise tax purposes.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
outstanding Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, deemed
to be a contract under, and construed in accordance with, the laws of the State
of New York, without regard to the conflicts of laws principles thereof.
The Company, the Agent and its Affiliates and any agent of the Company
or the Agent may treat the Person in whose name this Normal Units Certificate is
registered as the owner of the Normal Units evidenced hereby for the purpose of
receiving quarterly payments of interest on the Notes or the Treasury
Consideration, as the case may be, receiving payments of Contract Adjustment
Payments, if any, and any Deferred Contract Adjustment Payments, performance of
the Purchase Contracts and for all other purposes whatsoever, whether or not any
payments in respect thereof be overdue
A-11
and notwithstanding any notice to the contrary, and neither the Company, the
Agent, such Affiliates 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 Common Shares.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Agent.
A-12
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
-----------------------------------
(cust) (minor)
Under Uniform Gifts to Minors Act
-----------------------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
A-13
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)_______________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Normal Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ________________________________________
attorney to transfer said Normal Units Certificates on the books of Platinum
Underwriters Holdings, Ltd. with full power of substitution in the premises.
Dated:________________ Signature:
---------------------------------
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within Normal Units
Certificates in every particular, without
alteration or enlargement or any change
whatsoever.
Signature Guarantee:
-----------------------------------------------------------
A-14
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for Common Shares
deliverable upon settlement on or after the Share Purchase Date of the Purchase
Contracts underlying the number of Normal Units evidenced by this Normal Units
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:
--------------------------
Signature Guarantee:
----------------
(if assigned to another person)
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person other
than the Holder, please (i) print such
Person's name and address and (ii) Please print name and address of
provide a guarantee of your signature: Registered Holder:
---------------------------------------- ------------------------------------
Name Name
---------------------------------------- ------------------------------------
Address Address
Social Security or other Taxpayer
Identification Number, if any
A-15
ELECTION TO SETTLE EARLY
The undersigned Holder of this Normal Units 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 Normal Units evidenced by this Normal Units
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Normal Units with
an aggregate Purchase Price equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for Common Shares 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 Normal Units Certificate
representing any Normal Units evidenced hereby as to which Early Settlement of
the related Purchase Contracts is not effected, to the undersigned at the
address indicated below unless a different name and address have been indicated
below. Pledged Notes or Pledged Treasury Consideration deliverable upon such
Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If Common 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:
--------------------------
Signature Guarantee: Signature Guarantee:
------------------- ----------------
Number of Units evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If Common Shares are to be registered in REGISTERED HOLDER
the name of and delivered to and Pledged
Notes or Pledged Treasury Consideration
are to be transferred to a Person other Please print name and address of
than the Holder, please print such Registered Holder:
Person's name and address:
---------------------------------------- ------------------------------------
Name Name
---------------------------------------- ------------------------------------
Address Address
Social Security or other Taxpayer
Identification Number, if any
Transfer instructions for Pledged Notes or Pledged Treasury Consideration
transferable upon Early Settlement or a Termination Event:
A-16
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have
been made:
STATED AMOUNT
AMOUNT OF AMOUNT OF OF THE GLOBAL
DECREASE IN INCREASE IN CERTIFICATE SIGNATURE OF
STATED AMOUNT STATED AMOUNT FOLLOWING AUTHORIZED
OF THE GLOBAL OF THE GLOBAL SUCH DECREASE OFFICER OF
DATE CERTIFICATE CERTIFICATE OR INCREASE AGENT
-------------- ----------------- ----------------- ---------------- --------------
A-17
EXHIBIT B
FORM OF STRIPPED UNITS CERTIFICATE
(FORM OF GLOBAL CERTIFICATE LEGEND)
[THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE
CONTRACT AGREEMENT (AS DEFINED ON THE REVERSE HEREOF) AND IS REGISTERED IN THE
NAME OF A CLEARING AGENCY OR A NOMINEE THEREOF. THIS CERTIFICATE MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A CERTIFICATE REGISTERED, AND NO TRANSFER OF
THIS CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH CLEARING AGENCY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.]*
[SO LONG AS DTC IS THE DEPOSITARY, INSERT: Unless this Certificate is presented
by an authorized representative of The Depository Trust Company (55 ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) to the Company or its agent for registration of
transfer, exchange or payment, and any Certificate issued is registered in the
name of Cede & Co., or such other name as requested by an authorized
representative of The Depository Trust Company, and any payment hereon is made
to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.]
Form of Face of Stripped Units Certificate
No. CUSIP No.
Number of Stripped Units
This Stripped Units Certificate certifies that _________ is the
registered Holder of the number of Stripped Units set forth above. Each Stripped
Unit represents (i) a 1/40 undivided beneficial ownership interest in a Treasury
Security, subject to the Pledge of such interest in such Treasury Security by
such Holder pursuant to the Pledge Agreement, and (ii) the rights and
obligations of the Holder under one Purchase Contract with platinum Underwriters
Holdings, Ltd., a Bermuda corporation (the "Company"). Each Stripped Unit will
have a stated amount of $25 (the "Stated Amount"). All capitalized terms used
herein which are defined in the Purchase Contract Agreement have the meaning set
forth therein.
Pursuant to the Pledge Agreement, the Treasury Security constituting
part of each Stripped Unit evidenced hereby has been pledged to the Collateral
Agent, for the benefit of the Company, to secure the obligations of the Holder
under the Purchase
----------
* To be inserted in Global Certificates only.
B-1
Contract comprising a part of such Stripped Unit to purchase Common Shares of
the Company. Prior to the purchase of Common Shares under each Purchase
Contract, such Purchase Contracts shall not entitle the Holders of Normal Units
Certificates to any of the rights of a holder of Common Shares, including
without limitation, the right to vote or receive any dividends or other payments
or to consent or to receive notice as shareholders in respect of the meetings of
shareholders, or for the election of directors of the Company or for any other
matter or any other rights whatsoever as shareholder of the Company.
Each Purchase Contract evidenced hereby obligates the Holder of this
Stripped Units Certificate to purchase, and the Company to sell, on *, 2005 (the
"Share Purchase Date"), at a price equal to $25 (the "Purchase Price"), a number
of Common Shares, $0.01 par value per share ("Common Shares"), of the Company,
equal to the Settlement Rate, unless on or prior to the Share Purchase Date
there shall have occurred a Termination Event or an Early Settlement or Merger
Early Settlement with respect to the Stripped Units 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 (as defined herein)
for the Common Shares purchased pursuant to each Purchase Contract evidenced
hereby, if not paid earlier, shall be paid on the Share Purchase Date by
application of payments received in respect of the Pledged Treasury Securities
pledged to secure the obligations of the Holder under such Purchase Contract in
accordance with the terms of the Pledge Agreement.
The Company shall pay on each Payment Date in respect of each Purchase
Contract forming part of a Stripped Unit evidenced hereby an amount (the
"Contract Adjustment Payments") equal to *% per year of the Stated Amount,
computed on the basis of a 360-day year of twelve 30-day months, subject to
deferral at the option of the Company as provided in the Purchase Contract
Agreement and more fully described on the reverse hereof (provided that if on
any date on which Contract Adjustment Payments are to be made on the Purchase
Contracts is not a Business Day, then payment of the Contract Adjustment
Payments payable on that date will be made on the next succeeding day which is a
Business Day, and no interest or payment will be paid in respect of the delay,
except that if such next succeeding Business Day is in the next succeeding
calendar year, such payment will be made on the immediately preceding Business
Day). Such Contract Adjustment Payments shall be payable to the Person in whose
name this Stripped Units Certificate (or a Predecessor Stripped Units
Certificate) is registered at the close of business on the Record Date for such
Payment Date.
Contract Adjustment Payments 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
Normal Units Register or by wire transfer to the account designated by such
Person in writing.
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.
B-2
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Stripped Units 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.
B-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:_________________
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By:
-------------------------------------
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase
Contracts evidenced hereby)
By: JPMORGAN CHASE BANK, not
individually but solely as
Attorney-in-Fact of such Holder
By:
---------------------------------
Name:
Title:
B-4
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Stripped Units Certificates referred to in the
within-mentioned Purchase Contract Agreement.
JPMORGAN CHASE BANK,
as Purchase Contract Agent
By:
----------------------------------
Authorized Officer
B-5
(Form of Reverse of Stripped Units Certificate)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of *, 2002 (as may be supplemented from time to
time, the "Purchase Contract Agreement"), between the Company and JPMorgan Chase
Bank, as Purchase Contract Agent (including its successors thereunder, herein
called the "Agent"), to which the Purchase Contract Agreement and supplemental
agreements thereto reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Agent, the Company and the Holders and of the terms upon which the Stripped
Units Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Stripped Units Certificate to purchase, and the Company to sell, on the Share
Purchase Date at a price equal to $25 (the "Purchase Price"), a number of Common
Shares of the Company equal to the Settlement Rate, unless, on or prior to the
Share Purchase Date, there shall have occurred a Termination Event or a Cash
Settlement, an Early Settlement or Merger Early Settlement with respect to the
Unit of which such Purchase Contract is a part. The "Settlement Rate" is equal
to (a) if the Applicable Market Value (as defined below) is equal to or greater
than $* (the "Threshold Appreciation Price"), * Common Shares per Purchase
Contract, (b) if the Applicable Market Value is less than the Threshold
Appreciation Price but is greater than $*, the number of Common Shares per
Purchase Contract equal to the Purchase Price divided by the Applicable Market
Value and (c) if the Applicable Market Value is equal to or less than $*, *
Common Shares per Purchase Contract, in each case subject to adjustment as
provided in the Purchase Contract Agreement. No fractional Common Shares 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 Price
per Common Share on each of the 20 consecutive Trading Days ending on the third
Trading Day immediately preceding the Share Purchase Date or in the event of a
Cash Merger, the Cash Merger Date.
The "Closing Price" of the Common Shares on any date of determination
means the closing sale price (or, if no closing sale price is reported, the last
reported sale price) of the Common Shares on the New York Stock Exchange (the
"NYSE") on such date or, if the Common Shares are 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 Shares are so
listed, or if the Common Shares are not so listed on a United States national or
regional securities exchange, as reported by The Nasdaq Stock Market, or, if the
Common Shares are not so reported, the last quoted bid price for the Common
Shares 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 Shares on such date as determined by a nationally
recognized independent investment banking firm retained for this purpose by the
Company.
B-6
A "Trading Day" means a day on which the Common Shares (A) are 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 Shares at the close of business of such day.
Each Purchase Contract evidenced hereby may be settled prior to the
Share Purchase Date through Cash Settlement, Early Settlement or Merger Early
Settlement, in accordance with the terms of the Purchase Contract Agreement.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Stripped Units Certificate shall pay the Purchase Price for the
Common Shares purchased pursuant to each Purchase Contract evidenced hereby (i)
by effecting a Cash Settlement, an Early Settlement or Merger Early Settlement
or (ii) by application of payments received in respect of the Pledged Treasury
Securities underlying the Stripped Units represented by this Stripped Units
Certificate.
The Company shall not be obligated to issue any Common Shares 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 Common Shares to be purchased thereunder in the manner herein set
forth.
The Stripped Units Certificates are issuable only in registered form
and only in denominations of a single Stripped Unit and any integral multiple
thereof. The transfer of any Stripped Units Certificate will be registered and
Stripped Units Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Stripped Units 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 of a Stripped Units
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
Certificates, other than exchanges not involving any transfer as provided for in
the Purchase Contract Agreement. The Holder of a Stripped Unit may substitute
for the Pledged Treasury Securities securing its obligations under the related
Purchase Contract Notes or the appropriate Treasury Consideration in accordance
with the terms of the Purchase Contract Agreement and the Pledge Agreement. From
and after such Collateral Substitution, the Unit for which such Pledged Notes or
Pledged Treasury Consideration secures the Holder's obligation under the
Purchase Contract shall be referred to as a "Normal Unit." A Holder that elects
to substitute Notes or the appropriate Treasury Consideration for Pledged
Treasury Securities, thereby reestablishing Normal Units, shall be responsible
for any fees or expenses payable in connection therewith. Except as provided in
the Purchase Contract Agreement, for so long as the Purchase Contract underlying
a Stripped Unit remains in effect, such Stripped Unit shall not be separable
B-7
into its constituent parts, and the rights and obligations of the Holder of such
Stripped Unit in respect of the Pledged Treasury Security and the Purchase
Contract comprising such Stripped Unit may be acquired, and may be transferred
and exchanged, only as a Stripped Unit.
A Holder of Normal Units may establish Stripped Units at any time from
and after the date of the Purchase Contract Agreement and on or prior to the
second Business Day immediately preceding the Share Purchase Date by depositing
with the Collateral Agent Treasury Securities in exchange for the release of the
Pledged Notes or the appropriate Pledged Treasury Consideration in accordance
with the terms of the Purchase Contract Agreement and the Pledge Agreement.
Subject to the next succeeding paragraph, the Company shall pay, on
each Payment Date, the Contract Adjustment Payments, if any, payable in respect
of each Purchase Contract to the Person in whose name the Stripped Units
Certificate (or one or more Predecessor Stripped Units Certificates) evidencing
such Purchase Contract is registered on the Stripped Units Register at the close
of business on the Record Date next preceding such Payment Date. Contract
Adjustment Payments, if any, will be payable at the Corporate Trust Office or,
at the option of the Company, by check mailed to the address of the Person
entitled thereto at such Person's address as it appears on the Stripped Units
Register or by wire transfer to the account designated by such Person in
writing.
The Company shall have the right, at any time prior to the Share
Purchase Date, to defer the payment of any or all of the Contract Adjustment
Payments 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 each such
Contract Adjustment Payments as provided in the Purchase Contract Agreement. Any
Contract Adjustment Payments so deferred shall, to the extent permitted by law,
accrue additional Contract Adjustment Payments thereon at the rate of *% per
year (computed on the basis of a 360-day year of twelve 30-day months),
compounding on each succeeding Payment Date, until paid in full (such deferred
installments of Contract Adjustment Payments, if any, together with the
additional Contract Adjustment Payments, if any, accrued thereon, are referred
to herein as the "Deferred Contract Adjustment Payments"). Deferred Contract
Adjustment Payments, if any, 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 Adjustment Payments may be deferred to a date that is
after the Share Purchase Date and no such deferral period may end other than on
a Payment Date.
In the event that the Company elects to defer the payment of Contract
Adjustment Payments on the Purchase Contracts until a Payment Date prior to the
Share Purchase Date, then all Deferred Contract Adjustment Payments, if any,
shall be payable to the registered Holders as of the close of business on the
Record Date immediately preceding such Payment Date.
B-8
In the event that the Company elects to defer the payment of Contract
Adjustment Payments on the Purchase Contracts until the Share Purchase Date, the
Holder of this Stripped Units Certificate will receive on the Share Purchase
Date, in lieu of a cash payment, a number of Common Shares (in addition to the
number of Common Shares equal to the Settlement Rate) equal to (i) the aggregate
amount of Deferred Contract Adjustment Payments payable to the Holder of this
Stripped Units Certificate divided by (ii) the Applicable Market Value.
In the event the Company exercises its option to defer the payment of
Contract Adjustment Payments, then, until the Deferred Contract Adjustment
Payments have been paid, the Company shall not, and will not permit any
subsidiary of the Company to, declare or pay dividends on, make distributions
with respect to, or redeem, purchase or acquire, or make a liquidation payment
with respect to, any of the Company's Capital Stock other than (i) purchases,
redemptions or acquisitions of shares of the Company's Capital Stock in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of employees, officers, directors or agents
or a stock purchase or dividend reinvestment plan, or the satisfaction by the
Company of its obligations pursuant to any contract or security outstanding on
the date the Company exercises its rights to defer the Contract Adjustment
Payments; (ii) as a result of a reclassification of the Company's Capital Stock
or the exchange or conversion of one class or series of the Company's Capital
Stock for another class or series of the Company's Capital Stock; (iii) the
purchase of fractional interests in shares of the Company's Capital Stock
pursuant to the conversion or exchange provisions of such Capital Stock or the
security being converted or exchanged; (iv) dividends or distributions in any
series of the Company's Capital Stock (or rights to acquire Capital Stock) or
repurchases, acquisitions or redemptions of the Company's Capital Stock in
connection with the issuance or exchange of any series of the Company's Capital
Stock (or securities convertible into or exchangeable for shares of the
Company's Capital Stock); or (v) redemptions, exchanges or repurchases of any
rights outstanding under a shareholder rights plan or the declaration or payment
thereunder of a dividend or distribution of or with respect to rights in the
future.
The Purchase Contracts and all obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive accumulated Contract Adjustment Payments, if any, or any
Deferred Contract Adjustment Payments, and the obligations of the Holders to
purchase Common Shares, 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 Share Purchase Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, the Company shall promptly
but in no event later than two business days thereafter give written notice to
the Agent, the Collateral Agent and to the Holders, at their addresses as they
appear in the Stripped Units Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Treasury
Securities from the Pledge in accordance with the provisions of the Pledge
Agreement.
B-9
Upon registration of transfer of this Stripped Units 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, the Purchase Contracts evidenced hereby and the Pledge Agreement and
the transferor shall be released from the obligations under the Purchase
Contract Agreement, the Purchase Contracts evidenced by this Stripped Units
Certificate and the Pledge Agreement. 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 Stripped Units Certificate, by its acceptance
hereof, irrevocably authorizes the Agent to enter into and perform the related
Purchase Contracts forming part of the Stripped Units evidenced hereby on his
behalf as its attorney-in-fact, expressly withholds any consent to the
assumption (i.e., affirmance) of the Purchase Contracts by the Company or its
trustee in the event that the Company becomes the subject of a case under the
Bankruptcy Code, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform such Holder's 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 such
Holder's behalf as attorney-in-fact, and consents to the Pledge of the Treasury
Securities underlying this Stripped Units Certificate pursuant to the Pledge
Agreement. The Holder further covenants and agrees, that, to the extent and in
the manner provided in the Purchase Contract Agreement and the Pledge Agreement,
but subject to the terms thereof, payments in respect of the Pledged Treasury
Securities, to be paid upon settlement of such Holder's obligations to purchase
Common Shares under the Purchase Contract, shall be paid on the Share Purchase
Date by the Collateral Agent to the Company in satisfaction of such Holder's
obligations under such Purchase Contract and such Holder shall acquire no right,
title or interest in such payments. The obligations of each Holder to pay the
Purchase Price are non-recourse obligations and except to the extent paid by
Early Settlement or Merger Early Settlement, are payable solely out of the
proceeds of any Collateral pledged to secure the obligations of the Holders and
in no event will Holders be liable for any deficiency between such payments and
the Purchase Price.
Each Holder of any Unit, and each Beneficial Owner thereof, by its
acceptance thereof or of its interest therein, further agrees to treat (i)
itself as the owner of the related Notes, Treasury Consideration or Treasury
Securities, as the case may be, and (ii) the Notes as indebtedness of the
Platinum Underwriters Finance, Inc., in each case, for United States federal,
state and local income and franchise tax purposes.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
B-10
The Purchase Contracts shall for all purposes be governed by and
deemed to be a contract under, and construed in accordance with, the laws of the
State of New York, without regard to conflicts of laws principles thereof.
The Company, the Agent and its Affiliates and any agent of the Company
or the Agent may treat the Person in whose name this Stripped Units Certificate
is registered as the owner of the Stripped Units evidenced hereby for the
purpose of receiving any Contract Adjustment Payments and any Deferred Contract
Adjustment Payments, performance of the Purchase Contracts and for all other
purposes whatsoever, whether or not any payments in respect thereof be overdue
and notwithstanding any notice to the contrary, and neither the Company, the
Agent, such Affiliate, 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 Common Shares.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Agent.
B-11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
-----------------------------------
(cust) (minor)
Under Uniform Gifts to Minors Act
-----------------------------------
(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
Additional abbreviations may also be used though not in the above list.
B-12
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)_______________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Stripped Units Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ______________________________________
attorney to transfer said Stripped Units Certificates on the books of Platinum
Underwriters Holdings, Ltd. with full power of substitution in the premises.
Dated:_________________ Signature:
-----------------------------
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within
Stripped Units Certificates in every
particular, without alteration or
enlargement or any change whatsoever.
Signature Guarantee:
-----------------------------------------------------------
B-13
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for Common Shares
deliverable upon settlement on or after the Share Purchase Date of the Purchase
Contracts underlying the number of Stripped Units evidenced by this Stripped
Units 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:
--------------------------
Signature Guarantee:
----------------
(if assigned to another person)
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person other
than the Holder, please (i) print such
Person's name and address and (ii) Please print name and address of
provide a guarantee of your signature: Registered Holder:
---------------------------------------- ------------------------------------
Name Name
---------------------------------------- ------------------------------------
Address Address
Social Security or other Taxpayer
Identification Number, if any
B-14
ELECTION TO SETTLE EARLY
The undersigned Holder of this Stripped Units 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 Stripped Units evidenced by this Stripped
Units Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Stripped Units with
an aggregate Purchase Price equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for Common Shares 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 Stripped Units Certificate
representing any Stripped Units evidenced hereby as to which Early Settlement of
the related Purchase Contracts is not effected, to the undersigned at the
address indicated below unless a different name and address have been indicated
below. Pledged Treasury Securities deliverable upon such Early Settlement will
be transferred in accordance with the transfer instructions set forth below. If
shares are to be registered in the name of a Person other than the undersigned,
the undersigned will pay any transfer tax payable incident thereto.
Dated:________________ Signature:
--------------------------
Signature Guarantee:
----------------
Number of Units evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If Common Shares are to be registered in REGISTERED HOLDER
the name of and delivered to and Pledged
Treasury Securities are to be transferred
to a Person other than the Holder, please Please print name and address of
print such Person's name and address: Registered Holder:
---------------------------------------- ------------------------------------
Name Name
---------------------------------------- ------------------------------------
Address Address
Social Security or other Taxpayer
Identification Number, if any
Transfer instructions for Pledged Treasury Securities, transferable upon Early
Settlement or a Termination Event:
B-15
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have
been made:
STATED AMOUNT
AMOUNT OF AMOUNT OF OF THE GLOBAL
DECREASE IN INCREASE IN CERTIFICATE SIGNATURE OF
STATED AMOUNT STATED AMOUNT FOLLOWING AUTHORIZED
OF THE GLOBAL OF THE GLOBAL SUCH DECREASE OFFICER OF
DATE CERTIFICATE CERTIFICATE OR INCREASE AGENT
-------------- ----------------- ----------------- ---------------- --------------
B-16
EXHIBIT C
INSTRUCTION FROM PURCHASE CONTRACT AGENT TO
COLLATERAL AGENT
State Street Bank and Trust Company
*
*
*
Attention: *
Re: EQUITY SECURITY UNITS OF PLATINUM UNDERWRITERS
HOLDINGS, LTD. (THE "COMPANY")
We hereby notify you in accordance with Section 4.1 of the Pledge
Agreement, dated as of *, 2002, among the Company, you, as Collateral Agent,
Custodial Agent and Securities Intermediary, and us, as Purchase Contract Agent
and as attorney-in-fact for the holders of [Normal Units] [Stripped Units] from
time to time, that the holder of securities listed below (the "Holder") has
elected to substitute [$ _______ aggregate principal amount of Treasury
Securities (CUSIP No. _____)] [$_______ principal amount of Notes or the
appropriate Treasury Consideration, as the case may be,] in exchange for the
related [Pledged Notes or Pledged Treasury Consideration] [Pledged Treasury
Securities (CUSIP No. ____),] held by you in accordance with the Pledge
Agreement and has delivered to us a notice stating that the Holder has
transferred [Treasury Securities] [Notes or the appropriate Treasury
Consideration] to you, as Collateral Agent. We hereby instruct you, upon receipt
of such [Pledged Treasury Securities] [Pledged Notes or Pledged Treasury
Consideration], and upon the payment by such Holder of any applicable fees, to
release the [Notes or Treasury Consideration, as the case may be,] [Treasury
Securities] related to such [Normal Units] [Stripped Units] to us in accordance
with the Holder's instructions. Capitalized terms used herein but not defined
shall have the meaning set forth in the Purchase Contract Agreement.
Date:_________________
JPMORGAN CHASE BANK,
As Purchase Contract Agent under the Purchase
Contract Agreement, dated as of *, 2002,
between the Company and the Purchase Contract
Agent
By:
------------------------------------
Name:
Title:
C-1
Please print name and address of Registered Holder electing to substitute
[Treasury Securities] [Notes or Treasury Consideration, as the case may be,] for
the [Pledged Notes or Pledged Treasury Consideration, as the case may be,]
[Pledged Treasury Securities]:
Name
Address
Social Security or other Taxpayer Identification
Number, if any
C-2
EXHIBIT D
INSTRUCTION TO PURCHASE CONTRACT AGENT
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Institutional Trust Services
Re: EQUITY SECURITY UNITS OF PLATINUM UNDERWRITERS
HOLDINGS, LTD. (THE "COMPANY")
The undersigned Holder hereby notifies you, as Purchase Contract Agent
under the Purchase Contract Agreement, dated as of *, 2002, between the Company
and you, that it has delivered to State Street Bank and Trust Company, as
Collateral Agent, Custodial Agent and Securities Intermediary [$_________
aggregate principal amount of Treasury Securities] [$_________ principal amount
of Notes or the appropriate Treasury Consideration, as the case may be,] in
exchange for the related [Pledged Notes or Pledged Treasury Consideration, as
the case may be,] [Pledged Treasury Securities] held by the Collateral Agent, in
accordance with Section 4.1 of the Pledge Agreement, dated as of *, 2002, among
you, the Company and the Collateral Agent. The undersigned Holder has paid the
Collateral Agent all applicable fees relating to such exchange. The undersigned
Holder hereby instructs you to instruct the Collateral Agent to release to you
on behalf of the undersigned Holder the [Pledged Notes or Pledged Treasury
Consideration, as the case may be,] [Pledged Treasury Securities] related to
such [Normal Units] [Stripped Units]. Capitalized terms used herein but not
defined shall have the meaning set forth in the Purchase Contract Agreement.
Date:
By:
---------------------------------------
Signature Guarantee:
----------------------
Dated:
Please print name and address of
Registered Holder:
Name Social Security or other Taxpayer
Identification Number, if any
Address
EXHIBIT E
NOTICE TO SETTLE BY SEPARATE CASH
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Institutional Trust Services
Re: EQUITY SECURITY UNITS OF PLATINUM UNDERWRITERS
HOLDINGS, LTD. (THE "COMPANY")
The undersigned Holder hereby notifies you in accordance with Section
5.4 of the Purchase Contract Agreement, dated as of *, 2002, between the Company
and you, that it has delivered to State Street Bank and Trust Company, as
Collateral Agent, Custodial Agent and Securities Intermediary as Purchase
Contract Agent, Attorney-in-Fact and Trustee for the Holders of the Purchase
Contracts, that such Holder has elected to pay to the Collateral Agent, on or
prior to 11:00 a.m. New York City time, on the Business Day immediately
preceding the Share Purchase Date, (in lawful money of the United States by
certified or cashiers check or wire transfer, in each case in immediately
available funds), $_________ as the Purchase Price for the Common Shares
issuable to such Holder by the Company under the related Purchase Contract on
the Share Purchase Date. The undersigned Holder hereby instructs you to notify
promptly the Collateral Agent of the undersigned Holder's election to make such
cash settlement with respect to the Purchase Contracts related to such Holder's
Normal Units. Capitalized terms used herein but not defined shall have the
meaning set forth in the Purchase Contract Agreement.
Date:
By:
---------------------------------------
Signature Guarantee:
-----------------------
Dated:
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Please print name and address of
Registered Holder:
Name Social Security or other Taxpayer
Identification Number, if any
Address