Exhibit 4.7
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FORM OF
PURCHASE CONTRACT AGREEMENT
BETWEEN
SIERRA PACIFIC RESOURCES
AND
THE BANK OF NEW YORK,
AS PURCHASE CONTRACT AGENT
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DATED AS OF NOVEMBER __, 2001
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Other Provisions
of General Applications
Section 1.1. Definitions.....................................................................................1
Section 1.2. Compliance Certificates and Opinions...........................................................13
Section 1.3. Form of Documents Delivered to Purchase Contract Agent.........................................14
Section 1.4. Acts of Holders; Record Dates..................................................................14
Section 1.5. Notices........................................................................................15
Section 1.6. Notice to Holders; Waiver......................................................................16
Section 1.7. Effect of Headings and Table of Contents.......................................................17
Section 1.8. Successors and Assigns.........................................................................17
Section 1.9. Severability...................................................................................17
Section 1.10. Benefits of Agreement..........................................................................17
Section 1.11. Governing Law; Jurisdiction and Venue..........................................................17
Section 1.12. Legal Holidays.................................................................................18
Section 1.13. Counterparts...................................................................................18
Section 1.14. Inspection of Agreement........................................................................18
ARTICLE II
Certificate Forms
Section 2.1. Forms of Certificates Generally................................................................19
Section 2.2. Form of Purchase Contract Agent's Certificate of Authentication................................20
ARTICLE III
The PIES
Section 3.1. Amount; Form and Denominations.................................................................20
Section 3.2. Rights and Obligations Evidenced by the Certificates...........................................20
Section 3.3. Execution, Authentication, Delivery and Dating.................................................21
Section 3.4. Temporary Certificates.........................................................................22
Section 3.5. Registration; Registration of Transfer and Exchange............................................22
Section 3.6. Book-Entry Interests...........................................................................24
Section 3.7. Notices to Holders.............................................................................24
Section 3.8. Appointment of Successor Depositary............................................................25
Section 3.9. Definitive Certificates........................................................................25
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.............................................25
Section 3.11. Persons Deemed Owners..........................................................................26
Section 3.12. Cancellation...................................................................................27
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Section 3.13. Creation of Treasury PIES by Substitution of Treasury Securities...............................27
Section 3.14. Recreation of Corporate PIES...................................................................29
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event....................................30
Section 3.16. No Consent to Assumption.......................................................................31
ARTICLE IV
The Senior Notes
Section 4.1. Interest Payments; Rights to Interest Preserved................................................31
Section 4.2. Interest Rate Reset............................................................................32
Section 4.3. Notice and Voting..............................................................................32
ARTICLE V
The Purchase Contracts; The Remarketing
Section 5.1. Purchase of Shares of Common Stock.............................................................33
Section 5.2. Purchase Contract Adjustment Payments..........................................................35
Section 5.3. Payment of Purchase Price; Remarketing.........................................................36
Section 5.4. Issuance of Shares of Common Stock.............................................................41
Section 5.5. Adjustment of Settlement Rate and Early Settlement Rate........................................42
Section 5.6. Notice of Adjustments and Certain Other Events.................................................48
Section 5.7. Termination Event; Notice......................................................................49
Section 5.8. Cash Settlement................................................................................49
Section 5.9. Early Settlement...............................................................................52
Section 5.10. Early Settlement Upon Merger...................................................................54
Section 5.11. Optional Remarketing...........................................................................55
Section 5.12. No Fractional Shares...........................................................................56
Section 5.13. Charges and Taxes..............................................................................56
ARTICLE VI
Remedies
Section 6.1. Unconditional Right of Holders to Receive Purchase Contract Adjustment Payments and to
Purchase Shares of Common Stock................................................................57
Section 6.2. Restoration of Rights and Remedies.............................................................57
Section 6.3. Rights and Remedies Cumulative.................................................................57
Section 6.4. Delay or Omission Not Waiver...................................................................57
Section 6.5. Undertaking for Costs..........................................................................57
Section 6.6. Waiver of Stay or Extension Laws...............................................................58
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ARTICLE VII
The Purchase Contract Agent
Section 7.1. Certain Duties and Responsibilities............................................................58
Section 7.2. Notice of Default..............................................................................59
Section 7.3. Certain Rights of Purchase Contract Agent......................................................59
Section 7.4. Not Responsible for Recitals or Issuance of PIES...............................................61
Section 7.5. May Hold PIES..................................................................................61
Section 7.6. Money Held in Custody..........................................................................61
Section 7.7. Compensation and Reimbursement.................................................................62
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility........................................62
Section 7.9. Resignation and Removal; Appointment of Successor..............................................63
Section 7.10. Acceptance of Appointment by Successor.........................................................64
Section 7.11. Merger, Conversion, Consolidation or Succession to Business....................................64
Section 7.12. Preservation of Information; Communications to Holders.........................................65
Section 7.13. No Obligations of Purchase Contract Agent......................................................65
Section 7.14. Tax Compliance.................................................................................65
ARTICLE VIII
Supplemental Agreements
Section 8.1. Supplemental Agreements Without Consent of Holders.............................................66
Section 8.2. Supplemental Agreements With Consent of Holders................................................67
Section 8.3. Execution of Supplemental Agreements...........................................................68
Section 8.4. Effect of Supplemental Agreements..............................................................68
Section 8.5. Reference to Supplemental Agreements...........................................................68
ARTICLE IX
Merger, Consolidation Sale or Conveyance
Section 9.1. When Company May Merge, Etc....................................................................68
Section 9.2. Successor Corporation Substituted..............................................................69
Section 9.3. Limitation.....................................................................................69
ARTICLE X
Covenants
Section 10.1. Performance Under Purchase Contracts...........................................................70
Section 10.2. Maintenance of Office or Agency................................................................70
Section 10.3. Company to Reserve Common Stock................................................................70
Section 10.4. Covenants as to Common Stock...................................................................71
Section 10.5. Statements of Officers of the Company as to Default............................................71
Section 10.6. ERISA..........................................................................................71
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EXHIBITS
EXHIBIT A Form of Face of Corporate PIES Certificate.................................................A-1
EXHIBIT B Form of Face of Treasury PIES Certificate .................................................B-1
EXHIBIT C Notice from Holder to Purchase Contract Agent
(Election for Creation of Treasury PIES or Recreation of
Corporate PIES)............................................................................C-1
EXHIBIT D Instruction From Holder to Purchase Contract Agent
(Creation of Treasury PIES or Recreation of Corporate PIES)................................D-1
EXHIBIT E Notice from Purchase Contract Agent to Holders
(Transfer of Collateral upon Occurrence of a Termination Event)............................E-1
EXHIBIT F Notice to Settle by Cash...................................................................F-1
EXHIBIT G Notice from Purchase Contract Agent to Remarketing Agent,
Collateral Agent, Trustee and the Company
(Initial, Subsequent or Final Remarketing).................................................G-1
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PURCHASE CONTRACT AGREEMENT, dated as of November __, 2001,
between SIERRA PACIFIC RESOURCES, a Nevada corporation (the "Company"), and THE
BANK OF
NEW YORK, a
New York banking corporation, acting as purchase contract
agent for the Holders of PIES from time to time (the "Purchase Contract Agent").
RECITALS
The Company has duly authorized the execution and delivery of
this Agreement and the Certificates evidencing the PIES.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company, authenticated, executed on behalf of
the Holders and delivered by the Purchase Contract Agent, as provided in this
Agreement, the valid obligations of the Company, and to constitute this
Agreement a valid agreement of the Company, in accordance with its terms, have
been done.
For and in consideration of the premises and the purchase of
the PIES by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATIONS
Section 1.1. Definitions.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular,
and nouns and pronouns of the masculine gender include the feminine and neuter
genders;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States;
(c) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section, Exhibit or other subdivision;
(d) the following terms have the meanings given to them in
this Section 1.1(d):
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.4.
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"Adjusted Purchase Contract Adjustment Payment Rate" means,
with respect to any Reset Transaction, the rate per annum that is the arithmetic
average of the rates quoted by two Reference Dealers selected by the Company as
the rate at which Purchase Contract Adjustment Payments should accrue so that
the fair closing price, expressed in dollars, of a Corporate PIES immediately
after the later of (i) public announcement of such Reset Transaction or (ii)
public announcement of a change in dividend policy in connection with such Reset
Transaction will equal the average Trading Price of a Corporate PIES for the 20
Trading Days immediately preceding the date of public announcement of such Reset
Transaction; PROVIDED that the Adjusted Purchase Contract Adjustment Payment
Rate shall not be less than ___% per annum.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Affiliated Person" with respect to any specified Person means
any other Person that is an Affiliate of such specified Person.
"Agreement" means this
Purchase Contract Agreement as the same
may be amended, modified or supplemented from time to time in accordance with
the terms hereof.
"Applicable Closing Price" has the meaning set forth in
Section 5.1.
"applicants" has the meaning set forth in Section 7.12(b).
"Authorized Newspaper" means THE WALL STREET JOURNAL, another
daily newspaper in the English language of general circulation in
New York,
New
York that is acceptable to the Remarketing Agent or, at the discretion of the
Remarketing Agent after consultation with the Company, a nationally recognized
quotation system that would be an effective medium of publicizing the event to
be publicized.
"Bankruptcy Code" means Title 11 of the United States Code, or
any other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry
Interest, a Person who is the beneficial owner of such Book-Entry Interest as
reflected on the books of the Depositary or on the books of a Person maintaining
an account with such Depositary (directly as a Depositary Participant or as an
indirect participant, in each case in accordance with the rules of such
Depositary).
"Board of Directors" means the board of directors of the
Company or a duly authorized committee of that board.
"Board Resolution" means one or more resolutions or unanimous
written consents of the Board of Directors, a copy each of which has been
certified by the Secretary or an
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Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification
and delivered to the Purchase Contract Agent.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Depositary as described in Section 3.6.
"Business Day" means any day other than a Saturday or Sunday
or a day on which banking institutions in The City of
New York are authorized or
required by law or executive order to remain closed.
"Cash Merger" has the meaning set forth in Section 5.10(a).
"Cash Merger Date" has the meaning set forth in Section
5.10(a).
"Cash Settlement" has the meaning set forth in Section
5.8(a)(i).
"Certificate" means a Corporate PIES Certificate or a Treasury
PIES Certificate.
"Closing Price" has the meaning set forth in Section 5.1.
"Code" means the Internal Revenue Code of 1986, as amended,
and the rules and regulations promulgated thereunder.
"Collateral" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Collateral Account" has the meaning set forth in Section 1 of
the Pledge Agreement.
"Collateral Agent" means ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
Collateral Agent under the Pledge Agreement until a successor Collateral Agent
shall have become such pursuant to the applicable provisions of the Pledge
Agreement, and thereafter "Collateral Agent" shall mean the Person who is then
the Collateral Agent thereunder.
"Collateral Substitution" means the substitution of Treasury
Securities, for a Holder's Senior Notes, pursuant to Section 3.13 of this
Agreement and Section 5.2 of the Pledge Agreement, and the substitution of a
Holder's Senior Notes for Treasury Securities, pursuant to Section 3.14 of this
Agreement and Section 5.3 of the Pledge Agreement.
"Common Stock" means the common stock, par value $1.00 per
share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such pursuant
to the applicable provision of this Agreement, and thereafter "Company" shall
mean such successor.
"Constituent Person" has the meaning set forth in Section
5.5(b).
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"Corporate PIES" means the collective rights and obligations
of a Holder of a Corporate PIES Certificate in respect of the Senior Notes or,
if substituted therefore, in respect of the Treasury Portfolio Interest, in each
case, subject to the Pledge thereof, and the related Purchase Contract.
"Corporate PIES Certificate" means a certificate evidencing
the rights and obligations of a Holder in respect of the number of Corporate
PIES specified on such certificate.
"Corporate PIES Register" and "Corporate PIES Registrar" have
the respective meanings specified in Section 3.5.
"Corporate Trust Office" means the office of the Purchase
Contract Agent at which, at any particular time, its corporate trust business
shall be principally administered, which office at the date hereof is located at
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration.
"Coupon Rate" means the percentage rate per annum at which
each Senior Note will bear interest initially.
"Current Market Price" has the meaning specified in Section
5.5(a)(8).
"Depositary" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act that is acting as a
depositary for the PIES and in whose name, or in the name of a nominee of that
organization, shall be registered a Global Certificate and which shall undertake
to effect book-entry transfers and pledges of the PIES. Initially, DTC shall be
the Depositary.
"Depositary Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Depositary
effects book-entry transfers and pledges of securities deposited with the
Depositary.
"Dividend Yield" means, with respect to any security for any
period, the dividends paid or proposed to be paid pursuant to an announced
dividend policy on such security for such period divided by, if with respect to
dividends paid on such security, the average Closing Price of such security
during such period and, if with respect to dividends so proposed to be paid on
such security, the Closing Price of such security on the effective date of the
related Reset Transaction.
"DTC" means The Depository Trust Company, the initial
Depositary.
"Early Settlement" has the meaning set forth in Section
5.9(a).
"Early Settlement Amount" has the meaning set forth in Section
5.9(a).
"Early Settlement Date" has the meaning set forth in Section
5.9(a).
"Early Settlement Rate" has the meaning set forth in Section
5.9(b).
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"Election Date" means _____________, 2005, which is the fourth
Business Day prior to the Initial Remarketing Date.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934 and
any statute successor thereto, in each case as amended from time to time, and
the rules and regulations promulgated thereunder.
"Expiration Date" has the meaning set forth in Section 1.4(e).
"Expiration Time" has the meaning set forth in Section
5.5(a)(6).
"Failed Remarketing" has the meaning set forth in Section
5.3(c).
"Final Remarketing" has the meaning set forth in the
Remarketing Agreement.
"Final Remarketing Date" has the meaning set forth in the
Remarketing Agreement.
"Global Certificate" means a Certificate that is issued in
global form, evidencing all or part of the PIES, and is registered in the name
of a Depositary or a nominee thereof.
"Holder" means, with respect to a PIES, the Person in whose
name the PIES evidenced by a Corporate PIES Certificate and/or a Treasury PIES
Certificate is registered in the related Corporate PIES Register and/or the
Treasury PIES Register, as the case may be; PROVIDED, HOWEVER, that in
determining whether the Holders of the requisite number of Corporate PIES and/or
Treasury PIES have Acted on any matter, then for the purpose of such
determination only (and not for any other purpose hereunder), if the PIES
remains in the form of one or more Global Certificates and if the Depositary
which is the registered holder of such Global Certificate has sent an omnibus
proxy assigning voting rights to the Depositary Participants to whose accounts
the PIES are credited on the applicable record date, the term "Holder" shall
mean such Depositary Participant acting at the direction of the Beneficial
Owners.
"Indenture" means the Indenture, dated as of May 1, 2000,
between the Company and the Trustee (the "Original Indenture") and the Officers'
Certificate, dated as of November __, 2001 establishing the terms and other
provisions of the Senior Notes pursuant to the Original Indenture (the
"Indenture Officers' Certificate" and together with the Original Indenture, the
"Indenture"), as the same may be amended, modified or supplemented from time to
time in accordance with the terms thereof.
"Initial Remarketing" has the meaning set forth in the
Remarketing Agreement. "Initial Remarketing Date" has the meaning set forth in
Remarketing Agreement.
"Issuer Order" or "Issuer Request" means a written request or
order signed in the name of the Company by (i) either its Chief Executive
Officer, its President or one of its Vice
6
Presidents and (ii) either its Corporate Secretary or one of its Assistant
Corporate Secretaries or its Treasurer or one of its Assistant Treasurers, and
delivered to the Purchase Contract Agent.
"Merger Early Settlement" has the meaning set forth in Section
5.10.
"Merger Early Settlement Amount" has the meaning set forth in
Section 5.10(b).
"Merger Early Settlement Date" has the meaning set forth in
Section 5.10(a)(i).
"non-electing share" has the meaning set forth in Section
5.5(b).
"NYSE" means the
New York Stock Exchange, Inc.
"Officers' Certificate" means a certificate signed by (i)
either the Chief Executive Officer, the President or one of the Vice Presidents
and (ii) either the Corporate Secretary or one of the Assistant Corporate
Secretaries or the Treasurer or one of the Assistant Treasurers, of the Company,
and delivered to the Purchase Contract Agent.
"Opinion of Counsel" means a written opinion of counsel, which
may be counsel for the Company (and who may be an employee of the Company), and
which shall be reasonably acceptable to the Purchase Contract Agent.
"Outstanding PIES" means, with respect to any Corporate PIES
or Treasury PIES and as of the date of determination, all Corporate PIES or
Treasury PIES evidenced by Certificates theretofore authenticated, executed and
delivered under this Agreement, EXCEPT:
(1) If a Termination Event has occurred, Corporate PIES and
Treasury PIES for which the related Senior Notes, the Treasury
Portfolio or Treasury Securities, as the case may be, have been
theretofore deposited with the Purchase Contract Agent in trust for the
Holders of such Corporate PIES or Treasury PIES, as the case may be;
(2) Corporate PIES and Treasury PIES evidenced by Certificates
theretofore cancelled by the Purchase Contract Agent or delivered to
the Purchase Contract Agent for cancellation or deemed cancelled
pursuant to the provisions of this Agreement; and
(3) Corporate PIES and Treasury PIES evidenced by Certificates
in exchange for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered pursuant
to this Agreement, other than any such Certificate in respect of which
there shall have been presented to the Purchase Contract Agent proof
satisfactory to it that such Certificate is held by a BONA FIDE
purchaser in whose hands the Corporate PIES or Treasury PIES evidenced
by such Certificate are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
number of the Corporate PIES or Treasury PIES have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Corporate PIES or
Treasury PIES owned by the Company or any Affiliate of the Company shall be
disregarded and deemed not to be Outstanding PIES, except that, in determining
whether the Purchase Contract Agent shall be protected in relying
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upon any such request, demand, authorization, direction, notice, consent or
waiver, only Corporate PIES or Treasury PIES which a Responsible Officer of the
Purchase Contract Agent knows to be so owned shall be so disregarded. Corporate
PIES or Treasury PIES so owned which have been pledged in good faith may be
regarded as Outstanding PIES if the pledgee establishes to the satisfaction of
the Purchase Contract Agent the pledgee's right so to act with respect to such
Corporate PIES or Treasury PIES and that the pledgee is not the Company or any
Affiliate of the Company.
"Payment Date" means each ___________, ___________,
___________ and __________, commencing ___________, 2002.
"Permitted Investments" has the meaning set forth in Section 1
of the Pledge Agreement.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof or any other entity of
whatever nature.
"PIES" means a Corporate PIES, a Treasury PIES, or the
collective reference to the Corporate PIES and the Treasury PIES, as the case
may be.
"Plan" means an employee benefit plan that is subject to
ERISA, a plan or individual retirement account that is subject to Section 4975
of the Code or any entity whose assets are considered assets of any such plan.
"Pledge" means the pledge under the Pledge Agreement of the
Senior Notes, any Treasury Portfolio or any Treasury Securities, in each case,
constituting a part of the PIES.
"Pledge Agreement" means the Pledge Agreement, dated as of the
date hereof, by and among the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact for the Holders from time to time of the PIES, as the same may
be amended, modified or supplemented from time to time in accordance with the
terms thereof.
"Pledged Senior Notes" has the meaning set forth in Section 1
of the Pledge Agreement.
"Pledged Treasury Portfolio Interest" has the meaning set
forth in Section 1 of the Pledge Agreement.
"Pledged Treasury Securities" has the meaning set forth in
Section 1 of the Pledge Agreement.
"Predecessor Certificate" means a Predecessor Corporate PIES
Certificate or a Predecessor Treasury PIES Certificate.
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"Predecessor Corporate PIES Certificate" of any particular
Corporate PIES Certificate means every previous Corporate PIES Certificate
evidencing all or a portion of the rights and obligations of the Company and the
Holder under the Corporate PIES evidenced thereby; and, for the purposes of this
definition, any Corporate PIES Certificate authenticated and delivered under
Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Corporate PIES Certificate shall be deemed to evidence the same rights
and obligations of the Company and the Holder as the mutilated, destroyed, lost
or stolen Corporate PIES Certificate.
"Predecessor Treasury PIES Certificate" of any particular
Treasury PIES Certificate means every previous Treasury PIES Certificate
evidencing all or a portion of the rights and obligations of the Company and the
Holder under the Treasury PIES evidenced thereby; and, for the purposes of this
definition, any Treasury PIES Certificate authenticated and delivered under
Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Treasury PIES Certificate shall be deemed to evidence the same rights and
obligations of the Company and the Holder as the mutilated, destroyed, lost or
stolen Treasury PIES Certificate.
"Proceeds" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Purchase Contract" means, with respect to any PIES, the
contract contained in this Agreement and forming a part of such PIES and
obligating (i) the Company to sell, and the Holder of such PIES to purchase,
shares of Common Stock and (ii) the Company to pay to the Holder Purchase
Contract Adjustment Payments, in each case, on the terms and subject to the
conditions set forth in Article Five.
"Purchase Contract Adjustment Payments" means the payments
payable by the Company on the Payment Dates in respect of each Purchase
Contract, equal to (a) if a Reset Transaction has not occurred, ____% per annum
of the Stated Amount or (b) following the occurrence of a Reset Transaction, the
Adjusted Purchase Contract Adjustment Payment Rate related to such Reset
Transaction until any succeeding Reset Transaction shall occur, in either case
computed (i) for any full quarterly period on the basis of a 360-day year of
twelve 30-day months, (ii) for any period shorter than a full quarterly period
for which such payments are calculated, on the basis of a 30-day month and (iii)
for periods of less than a month, the actual number of days elapsed per 30-day
month.
"Purchase Contract Agent" means the Person named as the
"Purchase Contract Agent" in the first paragraph of this Agreement until a
successor Purchase Contract Agent shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Purchase Contract
Agent" shall mean such Person.
"Purchase Contract Settlement Date" means November __, 2005,
which is the fourth anniversary of the issuance of the PIES hereunder.
"Purchase Contract Settlement Fund" has the meaning set forth
in Section 5.4.
"Purchase Price" has the meaning set forth in Section 5.1.
"Purchased Shares" has the meaning set forth in Section
5.5(a)(6).
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"Record Date" for the Purchase Contract Adjustment Payments
payable on any Payment Date means the fifteenth Business Day prior to such
Payment Date.
"Reference Dealer" means a dealer engaged in the trading of
convertible securities.
"Reference Price" has the meaning set forth in Section 5.1.
"Register" means the Corporate PIES Register and the Treasury
PIES Register.
"Registrar" means the Corporate PIES Registrar and the
Treasury PIES Registrar.
"Remarketing" means the remarketing of the Remarketing Senior
Notes pursuant to the Remarketing Procedures.
"Remarketing Agent" has the meaning set forth in Section
5.3(b).
"Remarketing Agreement" means the Remarketing Agreement, dated
as of the date hereof, between the Company and the Remarketing Agent, as the
same may be amended, modified or supplemented from time to time in accordance
with the terms thereof.
"Remarketing Date" means the date of any Successful
Remarketing.
"Remarketing Fee" has the meaning set forth in Section 5.3(b).
"Remarketing Procedures" means, collectively, the procedures
and requirements relating to the Remarketing and the determination of the Reset
Rate as set forth in the Indenture, this Agreement, the Pledge Agreement and the
Remarketing Agreement.
"Remarketing Senior Notes" has the meaning set forth in
Section 5.3(b).
"Remarketing Settlement Date" means the date of the settlement
of any Successful Remarketing, which will be three Business Days after such
Remarketing.
"Remarketing Value" means the sum of
(1) Unless the Remarketing occurs on the Final Remarketing
Date, the value on the Remarketing Date of U.S. Treasury securities
that will mature or pay, on or prior to the Payment Date falling on the
Purchase Contract Settlement Date, an amount of cash equal to the
aggregate interest that is scheduled to be payable on that Payment
Date, on (i) the Senior Notes that are included in Corporate PIES and
(ii) the Separated Senior Notes, in each case, which are participating
in the Remarketing, assuming for that purpose that the interest rate on
the Senior Notes is equal to the Coupon Rate;
(2) the value on the Remarketing Date of U.S. Treasury
securities that will pay, on or prior to the Purchase Contract
Settlement Date, an amount of cash equal to the Stated Amount of (i)
such Senior Notes that are included in Corporate PIES and (ii) the
Separated Senior Notes, in each case, which are participating in the
Remarketing; and
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(3) the Remarketing Fee;
PROVIDED that, for purposes of each of clauses (1) through (3) above,
the Remarketing Value shall be calculated on the assumptions that (i)
the U.S. Treasury securities are highly liquid securities and mature on
or within 35 days prior to the Purchase Contract Settlement Date, as
determined in good faith by the Remarketing Agent in a manner intended
to minimize the Remarketing Value, and (ii) the U.S. Treasury
securities are valued based on the ask-side price of the Treasury
securities at a time between 9:00 a.m. and 11:00 a.m. (
New York City
time), selected by the Remarketing Agent, on the Remarketing Date as
determined on a third-day settlement basis by a reasonably and
customary means selected in good faith by the Remarketing Agent, plus
accrued interest to that date; and PROVIDED FURTHER that, the
Remarketing Agent shall, in its sole discretion, select the U.S.
Treasury securities in connection with a Remarketing in open market
transactions, at a U.S. Treasury auction and/or from its own account.
"Reorganization Event" has the meaning set forth in Section
5.5(b).
"Reset Rate" has the meaning set forth in the Indenture.
"Reset Transaction" means a merger, consolidation or statutory
share exchange to which the Person that is the issuer of the shares of Common
Stock for which the Purchase Contracts are then to be settled is a party, a sale
of all or substantially all assets of such Person, a recapitalization of such
Common Stock or a distribution described in Section 5.5(a)(4) by such Person and
after the effective date of such transaction the Purchase Contracts are then to
be settled for shares of common stock of a Person (i) which had a Dividend Yield
for the four fiscal quarters immediately preceding the public announcement
thereof which was, or (ii) that announces a dividend policy prior to the
effective date thereof which policy, if implemented, would result in a Dividend
Yield on such shares of Common Stock for the next four fiscal quarters which
would be, more than 250 basis points higher than the Dividend Yield on the
shares of Common Stock for which the Purchase Contracts are to be settled prior
to such effective date for the four fiscal quarters immediately preceding such
public announcement.
"Responsible Officer," means, when used with respect to the
Agent, any officer within the Corporate Trust Administration unit of the
Purchase Contract Agent (or any successor unit or department of the Agent)
located at the Corporate Trust Office of the Purchase Contract Agent who has
direct responsibility for the administration of this Agreement.
"Securities Intermediary" means ▇▇▇▇▇ Fargo Bank Minnesota,
N.A., as Securities Intermediary under the Pledge Agreement until a successor
Securities Intermediary shall have become such pursuant to the applicable
provisions of the Pledge Agreement, and thereafter "Securities Intermediary"
shall mean such successor.
"Senior Notes" means the ______% Senior Notes due 2007 to be
issued by the Company under the Indenture, each having a minimum denomination of
$50 and bearing interest, payable on the Payment Dates, initially at the Coupon
Rate to, but excluding, the Remarketing Settlement Date or the Purchase Contract
Settlement Date, as applicable, and, thereafter, at the Reset Rate, in each case
pursuant to the Indenture. Any reference herein to
11
"one Senior Note," "a Senior Note" or "the Senior Note" or any phrase herein
having a similar meaning shall be a reference to a Senior Note in the principal
amount of $50.
"Separated Senior Notes" has the meaning set forth in the
Pledge Agreement.
"Settlement Rate" has the meaning specified in Section 5.1.
"Stated Amount" means, with respect to any one PIES, $50 in
cash.
"Stated Maturity" means, with respect to the Senior Notes,
____________, 2007.
"Subsequent Remarketing" has the meaning specified in the
Remarketing Agreement.
"Subsequent Remarketing Date" has the meaning specified in the
Remarketing Agreement.
"Successful Final Remarketing" has the meaning specified in
the Pledge Agreement.
"Successful Initial Remarketing" has the meaning specified in
the Pledge Agreement.
"Successful Remarketing" has the meaning specified in the
Remarketing Agreement.
"Successful Subsequent Remarketing" has the meaning specified
in the Pledge Agreement.
"Termination Date" means the date, if any, on which a
Termination Event occurs.
"Termination Event" means the occurrence of any of the
following events:
(1) at any time on or prior to the Purchase Contract
Settlement Date, a judgment, decree or court order shall have been
entered granting relief with respect to the Company under the
Bankruptcy Code or any other similar applicable Federal or state law,
adjudicating the Company to be insolvent, or approving as properly
filed a petition seeking reorganization or liquidation of the Company,
and, unless such judgment, decree or order shall have been entered
within 60 days prior to the Purchase Contract Settlement Date, such
decree or order shall have continued undischarged and unstayed for a
period of 60 days;
(2) a judgment, decree or court order for the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company or of its property, or for the winding up or
liquidation of its affairs, shall have been entered, and, unless such
judgment, decree or order shall have been entered within 60 days prior
to the Purchase Contract Settlement Date, such judgment, decree or
order shall have continued undischarged and unstayed for a period of 60
days; or
12
(3) at any time on or prior to the Purchase Contract
Settlement Date, the Company shall file a petition for relief under the
Bankruptcy Code, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization or liquidation of the Company under the
Bankruptcy Code or any other similar applicable Federal or state law,
or shall consent to the filing of any such petition, or shall consent
to the appointment of a receiver or liquidator or trustee or assignee
in bankruptcy or insolvency of it or of its property, or shall make an
assignment for the benefit of its creditors, or shall admit in writing
its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning set forth in
Section 5.1.
"TIA" means the Trust Indenture Act of 1939, as amended from
time to time, or any successor legislation, and the rules and regulations
promulgated thereunder.
"Trading Day" has the meaning set forth in Section 5.1.
"Trading Price" of a security on any date of determination
means:
(1) the closing sale price (or, if no closing price is
reported, the last reported sale price) of a security (regular way) on
the NYSE on such date;
(2) if such security is not listed for trading on the NYSE on
any such date, the closing sale price as reported in the composite
transactions for the principal United States securities exchange on
which such security is so listed;
(3) if such security is not so listed on a United States
national or regional securities exchange, the closing sale price as
reported by the NASDAQ Stock Market;
(4) if such security is not so reported, the price quoted by
Interactive Data Corporation for such security or, if Interactive Data
Corporation is not quoting such price, a similar quotation service
selected by the Company;
(5) if such security is not so quoted, the average of the
mid-point of the last bid and ask prices for such security from at
least two dealers recognized as market-makers for such security; or
(6) if such security is not so quoted, the average of the last
bid and ask prices for such security from a Reference Dealer.
"Treasury PIES" means, following the substitution of Treasury
Securities for Senior Notes as collateral to secure a Holder's obligations under
a Purchase Contract, the collective rights and obligations of a Holder of a
Treasury PIES Certificate in respect of such Treasury Securities, subject to the
Pledge thereof, and the related Purchase Contract.
"Treasury PIES Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Treasury PIES
specified on such certificate.
13
"Treasury PIES Register" and "Treasury PIES Registrar" have
the respective meanings set forth in Section 3.5.
"Treasury Portfolio" has the meaning specified in Section
5.3(b).
"Treasury Portfolio Interest" has the meaning specified in
Section 5.3(b).
"Treasury Portfolio Return" has the meaning specified in
Section 4.1.
"Treasury Security" means a zero-coupon U.S. Treasury Security
that has a principal amount at maturity of $1,000 and which matures on or prior
to the Business Day prior to the Purchase Contract Settlement Date.
"Trustee" means The Bank of
New York, a
New York corporation,
as trustee under the Indenture, or any successor thereto.
"Underwriters" means ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇, Sachs & Co. and First Union
Securities, Inc., as underwriters under the Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement
dated November ___, 2001 between the Company and the Underwriters relating to
the offer, issuance and sale of the Corporate PIES, as the same may be amended,
modified or supplemented from time to time in accordance with the terms thereof.
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon
any application or request by the Company to the Purchase Contract Agent to take
any action in accordance with any provision of this Agreement, the Company shall
furnish to the Purchase Contract Agent an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and, if requested by the Purchase
Contract Agent, an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Agreement
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement (other than pursuant to
Section 10.5) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
14
(3) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Purchase Contract Agent.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Agreement, they may, but need not, be consolidated
and form one instrument.
Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Purchase Contract Agent and, where it is hereby expressly required, to
the Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Agreement and (subject to Section 7.1) conclusive in favor of
the Purchase Contract Agent and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner which the Purchase
Contract Agent deems sufficient.
15
(c) The ownership of PIES shall be proved by the Corporate
PIES Register or the Treasury PIES Register, as the case may be.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Certificate shall bind every
future Holder of the same Certificate and the Holder of every Certificate issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Purchase Contract Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Certificate.
(e) The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding PIES entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Agreement to be given, made or taken
by Holders of PIES. If any record date is set pursuant to this paragraph, the
Holders of the Outstanding Corporate PIES and the Outstanding Treasury PIES, as
the case may be, on such record date, and no other Holders, shall be entitled to
take the relevant action with respect to the Corporate PIES or the Treasury
PIES, as the case may be, whether or not such Holders remain Holders after such
record date; PROVIDED that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
number of Outstanding PIES on such record date. Nothing contained in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and be of no effect), and nothing
contained in this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite number of Outstanding PIES on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Purchase Contract Agent in writing and to each Holder of PIES in
the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section,
the Company may designate any date as the "Expiration Date" and from time to
time may change the Expiration Date to any earlier or later day; PROVIDED that
no such change shall be effective unless notice of the proposed new Expiration
Date is given to the Purchase Contract Agent in writing, and to each Holder of
PIES in the manner set forth in Section 1.6, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the Company shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Section 1.5. Notices.
Any notice or communication is duly given if in writing and
delivered in Person or mailed by first-class mail (registered or certified,
return receipt requested), telecopier (with receipt confirmed) or overnight air
courier guaranteeing next day delivery, to the others' address;
16
provided that notice shall be deemed given to the Purchase Contract
Agent and the Trustee, as the case may be, only upon receipt thereof:
If to the Company:
Sierra Pacific Resources
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.:__________
Attention: (775) _________
If to the Purchase Contract Agent:
The Bank of New York
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇(▇▇) ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
If to the Collateral Agent and Securities Intermediary:
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
Sixth and Marquette
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
If to the Trustee:
The Bank of New York
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇(▇▇) ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Section 1.6. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at its address as it appears in the
applicable Register, not later than the latest date, and not earlier than the
earliest date, 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
17
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Purchase Contract Agent, but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Purchase
Contract Agent shall constitute a sufficient notification for every purpose
hereunder.
Section 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.8. Successors and Assigns.
All covenants and agreements in this Agreement by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.9. Severability.
If any provision in this Agreement is invalid or unenforceable
in any jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions of this Agreement shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision of this Agreement in any
jurisdiction shall not in any way affect the validity or enforceability of such
provision in any other jurisdiction.
Section 1.10. Benefits of Agreement.
Nothing contained in this Agreement or in the PIES, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and, to the extent provided hereby, the Holders, any
benefits or any legal or equitable right, remedy or claim under this Agreement.
The Holders from time to time shall be beneficiaries of this Agreement and shall
be bound by all of the terms and conditions hereof and of the PIES evidenced by
their Certificates by their acceptance of delivery of such Certificates.
Section 1.11. Governing Law; Jurisdiction and Venue.
THIS AGREEMENT AND THE PIES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company, the Purchase Contract Agent and the Holders from
time to time of the PIES, acting through the Purchase Contract Agent as their
attorney-in-fact, hereby submit to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York
state court sitting in New York City for the purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions contemplated
hereby. The Company and the Holders from time to time of the PIES, acting
through the Purchase
18
Contract Agent as their attorney-in-fact, irrevocably waive, to the fullest
extent permitted by applicable law, any objection which they may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
Section 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business
Day, then (notwithstanding any other provision of this Agreement, the Corporate
PIES Certificates or the Treasury PIES Certificates) payments by or owed from
the Company contemplated by this Agreement shall not be made on such date, but
shall be made on the next succeeding Business Day with the same force and effect
as if made on such Payment Date, PROVIDED that no interest shall accrue or be
payable by the Company or any Holder for the period from and after any such
Payment Date, except that, if such next succeeding Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day with the same force and effect as if made on such Payment
Date.
In any case where any Purchase Contract Settlement Date shall
not be a Business Day, notwithstanding any other provision of this Agreement,
the Corporate PIES Certificates or the Treasury PIES Certificates, Purchase
Contracts shall not be settled on such date, but the Purchase Contracts shall be
settled on the immediately following Business Day with the same force and effect
as if performed on the Purchase Contract Settlement Date.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts
by the parties hereto on separate counterparts, each of which, when so executed
and delivered, shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable
times during normal business hours at the Corporate Trust Office for inspection
by any Holder or Beneficial Owner.
19
ARTICLE II
CERTIFICATE FORMS
Section 2.1. Forms of Certificates Generally.
The Corporate PIES Certificates (including the form of
Purchase Contract forming part of the Corporate PIES evidenced thereby) shall be
in substantially the form set forth in Exhibit A hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by the
rules of any securities exchange on which the Corporate PIES are listed or any
depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Corporate PIES Certificates, as evidenced
by their execution of the Corporate PIES Certificates.
The definitive Corporate PIES Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Corporate PIES evidenced by such Corporate PIES Certificates, consistent with
the provisions of this Agreement, as evidenced by their execution thereof.
The Treasury PIES Certificates (including the form of Purchase
Contracts forming part of the Treasury PIES evidenced thereby) shall be in
substantially the form set forth in Exhibit B hereto, with such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Treasury PIES may be listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Treasury PIES Certificates, as evidenced by their
execution of the Treasury PIES Certificates.
The definitive Treasury PIES Certificates shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing the
Treasury PIES evidenced by such Treasury PIES Certificates, consistent with the
provisions of this Agreement, as evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of
the Holders and delivered hereunder shall bear a legend in substantially the
following form:
"This Certificate is a Global Certificate within the meaning of
the
Purchase Contract Agreement hereinafter referred to and is
registered in the name of The Depository Trust Company, a New York
corporation (the "Depositary"), or a nominee of the Depositary. This
Certificate is exchangeable for certificates registered in the name of
a person other than the Depositary or its nominee only in the limited
circumstances described in the
Purchase Contract Agreement and no
transfer of this Certificate (other than a transfer of this
Certificate as a whole by the Depositary to a nominee of the
20
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Certificate is presented by an authorized
representative of the Depositary to Sierra Pacific Resources or its
agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such
other name as is requested by an authorized representative of the
Depositary (and any payment hereon is made to Cede & Co. or to such
other entity as is requested by an authorized representative of the
Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein."
Section 2.2. Form of Purchase Contract Agent's Certificate of
Authentication.
The form of the Purchase Contract Agent's certificate of
authentication of the Corporate PIES shall be in substantially the form set
forth on the form of the Corporate PIES Certificates.
The form of the Purchase Contract Agent's certificate of
authentication of the Treasury PIES shall be in substantially the form set forth
on the form of the Treasury PIES Certificates.
ARTICLE III
THE PIES
Section 3.1. Amount; Form and Denominations.
The aggregate number of PIES evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to 6,000,000 (or up to 6,900,000 if the Underwriters' over-allotment
option pursuant to the Underwriting Agreement is exercised in full), except for
Certificates authenticated, executed and delivered upon registration of transfer
of, in exchange for, or in lieu of, other Certificates pursuant to Sections 3.4,
3.5, 3.10, 3.13, 3.14, 5.9 or 5.10.
The Certificates shall be issuable only in registered form and
only in denominations of a single Corporate PIES or Treasury PIES and any
integral multiple thereof.
Section 3.2. Rights and Obligations Evidenced by the Certificates.
Each Corporate PIES Certificate shall evidence the number of
Corporate PIES specified therein, with each such Corporate PIES representing (1)
the ownership by the Holder thereof of a beneficial interest in one Senior Note
or, if substituted therefor, the Pledged Treasury Portfolio Interest, in either
case, subject to the Pledge of such Senior Note or such Pledged Treasury
Portfolio Interest, as the case may be, by such Holder pursuant to the Pledge
Agreement, and (2) the rights and obligations of the Holder thereof and the
Company under one Purchase Contract. The Purchase Contract Agent as
attorney-in-fact for, and on behalf of, the Holder of each Corporate PIES shall
pledge, pursuant to the Pledge Agreement, the Senior Note
21
or, if substituted therefor, the Treasury Portfolio Interest, forming a part of
such Corporate PIES, to the Collateral Agent and grant to the Collateral Agent a
security interest in the right, title and interest of such Holder in such Senior
Note or such Treasury Portfolio Interest, as the case may be, for the benefit of
the Company, to secure the obligation of the Holder under each Purchase Contract
to purchase shares of Common Stock pursuant to the Purchase Contract.
Upon the formation of Treasury PIES pursuant to Section 3.13,
each Treasury PIES Certificate shall evidence the number of Treasury PIES
specified therein, with each such Treasury PIES representing (1) the ownership
by the Holder thereof of a 1/20 undivided beneficial interest in a Treasury
Security with a principal amount equal to $1,000, subject to the Pledge of such
Treasury Security by such Holder pursuant to the Pledge Agreement, and (2) the
rights and obligations of the Holder thereof and the Company under one Purchase
Contract. The Purchase Contract Agent as attorney-in-fact for, and on behalf of,
the Holder of each Treasury PIES shall pledge, pursuant to the Pledge Agreement,
the Treasury Security or Treasury Securities forming a part of such Treasury
PIES, to the Collateral Agent and grant to the Collateral Agent a security
interest in the right, title and interest of such Holder in such Treasury
Security or Treasury Securities for the benefit of the Company, to secure the
obligation of the Holder under each Purchase Contract to purchase shares of
Common Stock pursuant to this Agreement and the related Purchase Contract.
Prior to the purchase of shares of Common Stock under each
Purchase Contract, such Purchase Contract shall not entitle the Holder of a
Corporate PIES Certificate or a Treasury PIES Certificate to any of the rights
of a holder of shares of Common Stock, including, without limitation, the right
to vote or receive any dividends or other payments or to consent or to receive
notice as a shareholder in respect of the meetings of shareholders or for the
election of directors of the Company or for any other matter, or any other
rights whatsoever as a shareholder of the Company.
Section 3.3. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Sections 3.1, 3.13 and 3.14
hereof, upon the execution and delivery of this Agreement, and at any time and
from time to time thereafter, the Company may deliver Certificates executed by
the Company to the Purchase Contract Agent for authentication, execution on
behalf of the Holders and delivery, together with its Issuer Order for
authentication of such Certificates, and the Purchase Contract Agent in
accordance with such Issuer Order shall authenticate, execute on behalf of the
Holders and deliver such Certificates.
The Certificates shall be executed on behalf of the Company by
its Chairman of the Board, President, one of its Vice Presidents, Corporate
Secretary or Treasurer. The signature of any of these officers on the
Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of an
individual who was at any time the proper officer of the Company shall bind the
Company, notwithstanding that such individual has ceased to hold such office
prior to the authentication and delivery of such Certificates or did not hold
such office at the date of such Certificates.
22
No Purchase Contract evidenced by a Certificate shall be valid
until such Certificate has been executed on behalf of the Holder by the manual
signature of an authorized officer of the Purchase Contract Agent, as such
Holder's attorney-in-fact. Such signature by an authorized officer of the
Purchase Contract Agent shall be conclusive evidence that the Holder of such
Certificate has entered into the Purchase Contract or Purchase Contracts
evidenced by such Certificate.
Each Certificate shall be dated the date of its
authentication.
No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by an authorized officer of the Purchase Contract Agent by
manual signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
Section 3.4. Temporary Certificates.
Pending the preparation of definitive Certificates, the
Company shall execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall authenticate, execute on behalf of the Holders,
and deliver, in lieu of such definitive Certificates, temporary Certificates
which are in substantially the form set forth in Exhibit A or Exhibit B hereto,
as the case may be, with such letters, numbers or other marks of identification
or designation and such legends or endorsements printed, lithographed or
engraved thereon as may be required by the rules of any securities exchange on
which the Corporate PIES or Treasury PIES are or may be listed, or as may,
consistently herewith, be determined by the officers of the Company executing
such Certificates, as evidenced by their execution of the Certificates.
If temporary Certificates are issued, the Company will cause
definitive Certificates to be prepared without unreasonable delay. After the
preparation of definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the Corporate Trust Office, at the expense of the Company and
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Company shall execute and deliver to the Purchase
Contract Agent, and the Purchase Contract Agent shall authenticate, execute on
behalf of the Holder, and deliver in exchange therefor, one or more definitive
Certificates of like tenor and denominations and evidencing a like aggregate
number of Corporate PIES or Treasury PIES, as the case may be, as the temporary
Certificate or Certificates so surrendered. Until so exchanged, the temporary
Certificates shall in all respects evidence the same benefits and the same
obligations with respect to the Corporate PIES or Treasury PIES, as the case may
be, evidenced thereby as definitive Certificates.
Section 3.5. Registration; Registration of Transfer and Exchange.
The Purchase Contract Agent shall keep at the Corporate Trust
Office a register (the "Corporate PIES Register") in which, subject to such
reasonable regulations as it may prescribe, the Purchase Contract Agent shall
provide for the registration of Corporate PIES
23
Certificates and of transfers of Corporate PIES Certificates (the Purchase
Contract Agent, in such capacity, the "Corporate PIES Registrar") and a register
(the "Treasury PIES Register") in which, subject to such reasonable regulations
as it may prescribe, the Purchase Contract Agent shall provide for the
registration of the Treasury PIES Certificates and transfers of Treasury PIES
Certificates (the Purchase Contract Agent, in such capacity, the "Treasury PIES
Registrar").
Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office, the Company shall execute and deliver to the
Purchase Contract Agent, and the Purchase Contract Agent shall authenticate,
execute on behalf of the designated transferee or transferees, and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of any authorized denominations, like tenor, and evidencing a like
aggregate number of Corporate PIES or Treasury PIES, as the case may be.
At the option of the Holder, Certificates may be exchanged for
other Certificates, of any authorized denominations and evidencing a like number
of Corporate PIES or Treasury PIES, as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and
deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall
authenticate, execute on behalf of the Holder, and deliver the Certificates
which the Holder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same aggregate
number of Corporate PIES or Treasury PIES, as the case may be, and be entitled
to the same benefits and subject to the same obligations, under this Agreement
as the Corporate PIES or Treasury PIES, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Purchase Contract Agent)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Purchase Contract Agent duly executed, by
the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of a Certificate, but the Company and the Purchase Contract
Agent may require payment from the Holder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Certificates, other than any exchanges
pursuant to Sections 3.4, 3.6 and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall not be obligated to authenticate, execute on
behalf of the Holder and deliver any Certificate in exchange for any other
Certificate presented or surrendered for registration of transfer or for
exchange on or after the Business Day immediately preceding the earlier of the
Purchase Contract Settlement Date or the Termination Date. In lieu of delivery
of a new Certificate, upon satisfaction of the applicable conditions specified
above in this Section and receipt of appropriate registration or transfer
instructions from such Holder, the Purchase Contract Agent shall:
24
(1) if the Purchase Contract Settlement Date has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the PIES evidenced by such other
Certificate; or
(2) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Senior Notes, the
Treasury Portfolio or the Treasury Securities, as the case may be,
evidenced thereby,
in each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
Section 3.6. Book-Entry Interests.
The Certificates, on original issuance, will be issued in the
form of one or more fully registered Global Certificates, to be delivered to the
Depositary or its custodian by, or on behalf of, the Company. Such Global
Certificate shall initially be registered on the books and records of the
Company in the name of Cede & Co., the nominee of the Depositary, and no
Beneficial Owner will receive a definitive Certificate representing such
Beneficial Owner's interest in such Global Certificate, except as provided in
Section 3.9. The Purchase Contract Agent shall enter into an agreement with the
Depositary if so requested by the Company. Unless and until definitive, fully
registered Certificates have been issued to Beneficial Owners pursuant to
Section 3.9:
(1) the provisions of this Section 3.6 shall be in full force
and effect;
(2) the Company shall be entitled to deal with the Depositary
for all purposes of this Agreement (including making Purchase Contract
Adjustment Payments and receiving approvals, votes or consents
hereunder) as the Holder of the PIES and the sole holder of the Global
Certificates and shall have no obligation to the Beneficial Owners;
(3) to the extent that the provisions of this Section 3.6
conflict with any other provisions of this Agreement, the provisions of
this Section 3.6 shall control; and
(4) the rights of the Beneficial Owners shall be exercised
only through the Depositary and shall be limited to those established
by law and agreements between such Beneficial Owners and the Depositary
and/or the Depositary Participants.
Section 3.7. Notices to Holders.
Whenever a notice or other communication to the Holders is
required to be given under this Agreement, the Company or the Company's agent
shall give such notices and communications to the Holders and, with respect to
any PIES registered in the name of a Depositary or the nominee of a Depositary,
the Company or the Company's agent shall, except as set forth herein, have no
obligations to the Beneficial Owners.
25
Section 3.8. Appointment of Successor Depositary.
If any Depositary elects to discontinue its services as
securities depositary with respect to the PIES or ceases to be eligible as a
"depositary" under the Exchange Act, the Company may, in its sole discretion,
appoint a successor Depositary with respect to the PIES.
Section 3.9. Definitive Certificates.
If (a) the Depositary is at any time unwilling, unable or
ineligible to continue as a "clearing agency" registered under the Exchange Act
and a successor Depositary is not appointed by the Company pursuant to Section
3.8 within 90 days of the date the Company and the Purchase Contract Agent is so
informed in writing thereof, (b) the Company executes and delivers to the
Purchase Contract Agent a Company Order (as defined in the Indenture) to the
effect that the Global Certificates shall be exchangeable for Definitive
Certificates or (c) a default by the Company in respect of its obligations under
one or more Purchase Contracts has occurred and is continuing, then upon
surrender of the Global Certificates representing the PIES by the Depositary,
accompanied by registration instructions, the Company shall cause definitive
Certificates to be delivered to Beneficial Owners in accordance with the
instructions of the Depositary. The Company and the Purchase Contract Agent
shall not be liable for any delay in delivery of such instructions and may
conclusively rely on and shall be protected in relying on, such instructions.
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.
If any mutilated Certificate is surrendered to the Purchase
Contract Agent, the Company shall execute and deliver to the Purchase Contract
Agent, and the Purchase Contract Agent shall authenticate, execute on behalf of
the Holder, and deliver in exchange therefor, a new Certificate, evidencing the
same number of Corporate PIES or Treasury PIES, as the case may be, and bearing
a Certificate number not contemporaneously outstanding.
If there shall be delivered to the Company and the Purchase
Contract Agent (i) evidence to their satisfaction of the destruction, loss or
theft of any Certificate, and (ii) such security or indemnity as may be required
by them to hold each of them and any agent of any of them harmless, then, in the
absence of notice to the Company or to a Responsible Officer of the Purchase
Contract Agent that such Certificate has been acquired by a bona fide purchaser,
the Company shall execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or stolen
Certificate, a new Certificate, evidencing the same number of Corporate PIES or
Treasury PIES, as the case may be, and bearing a Certificate number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall not be obligated to authenticate, execute on
behalf of the Holder, and deliver to the Holder, a Certificate on or after the
Business Day immediately preceding the earlier of the Purchase Contract
Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the
26
applicable conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Purchase Contract
Agent shall:
(1) if the Purchase Contract Settlement Date has occurred,
deliver the shares of Common Stock issuable in respect of the Purchase
Contracts forming a part of the PIES evidenced by such Certificate; or
(2) if a Termination Event shall have occurred prior to the
Purchase Contract Settlement Date, transfer the Senior Notes, the
Treasury Portfolio or the Treasury Securities, as the case may be,
evidenced thereby,
in each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
Upon the issuance of any new Certificate under this Section,
the Company and the Purchase Contract Agent may require the payment by the
Holder of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Purchase Contract Agent) connected therewith.
Every new Certificate issued pursuant to this Section in lieu
of any destroyed, lost or stolen Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder in respect of
the PIES evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the PIES evidenced thereby) shall be at any time enforceable by
anyone, and shall be entitled to all the benefits and be subject to all the
obligations of this Agreement equally and proportionately with any and all other
Certificates delivered hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.11. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of
transfer, the Company and the Purchase Contract Agent, and any agent of the
Company or the Purchase Contract Agent, may treat the Person in whose name such
Certificate is registered as the owner of the Corporate PIES or Treasury PIES
evidenced thereby, for the purpose of receiving interest payments on the Senior
Notes, receiving Purchase Contract Adjustment Payments, performance of the
Purchase Contracts and for all other purposes whatsoever, whether or not any
interest payments on the Senior Notes or the Purchase Contract Adjustment
Payments payable in respect of the Purchase Contracts constituting a part of the
Corporate PIES or Treasury PIES evidenced thereby shall be overdue and
notwithstanding any notice to the contrary, and neither the Company nor the
Purchase Contract Agent, nor any agent of the Company or the Purchase Contract
Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global
Certificate, nothing contained herein shall prevent the Company, the Purchase
Contract Agent or any agent of the Company or the Purchase Contract Agent, from
giving effect to any written certification, proxy or other authorization
furnished by any Depositary (or its nominee), as a Holder, with respect to
27
such Global Certificate or impair, as between such Depositary and owners of
beneficial interests in such Global Certificate, the operation of customary
practices governing the exercise of rights of such Depositary (or its nominee)
as Holder of such Global Certificate.
Section 3.12. Cancellation.
All Certificates surrendered for delivery of shares of Common
Stock on or after the Purchase Contract Settlement Date, upon the transfer of
Senior Notes, the Treasury Portfolio or Treasury Securities, as the case may be,
after the occurrence of a Termination Event or pursuant to an Early Settlement,
or a Collateral Substitution or the recreation of Corporate PIES or upon the
registration of a transfer or exchange of a PIES, shall, if surrendered to any
Person other than the Purchase Contract Agent, be delivered to the Purchase
Contract Agent and, if not already cancelled, shall be promptly cancelled by it.
The Company may at any time deliver to the Purchase Contract Agent for
cancellation any Certificates previously authenticated, executed and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Certificates so delivered shall, upon Issuer Order, be promptly cancelled by the
Purchase Contract Agent. No Certificates shall be authenticated, executed on
behalf of the Holder and delivered in lieu of or in exchange for any
Certificates cancelled as provided in this Section, except as expressly
permitted by this Agreement. All cancelled Certificates held by the Purchase
Contract Agent shall be disposed of by the Purchase Contract Agent in accordance
with its customary procedures.
If the Company or any Affiliate of the Company shall acquire
any Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Purchase
Contract Agent cancelled or for cancellation.
Section 3.13. Creation of Treasury PIES by Substitution of Treasury
Securities.
A Holder may separate the Senior Notes from the related
Purchase Contracts in respect of such Holder's Corporate PIES by substituting
for such Senior Notes Treasury Securities or security entitlements thereto,
pursuant to the Pledge Agreement, in an aggregate principal amount equal to the
aggregate principal amount of such Senior Notes, at any time from and after the
date of this Agreement until 5:00 p.m. (New York City time) on the Election Date
by:
(1) providing notice to the Purchase Contract Agent,
substantially in the form of Exhibit C hereto, of such Holder's
intention to create Treasury PIES;
(2) for each group of 20 Corporate PIES from which such Holder
wishes to create Treasury PIES, transferring a Treasury Security to the
Securities Intermediary which shall then (y) deposit the Treasury
Security with the Collateral Agent in the Collateral Account under the
Pledge Agreement and instruct the Collateral Agent to hold such
Treasury Security as Collateral under the Pledge Agreement and (z)
instruct the Collateral Agent to release to such Holders $1,000
principal amount of Senior Notes formerly subject to the Pledge;
(3) transferring the related Corporate PIES to the Purchase
Contract Agent accompanied by a notice to the Purchase Contract Agent,
substantially in the form of
28
Exhibit D hereto, stating that the Holder has transferred the relevant
amount of Treasury Securities to the Securities Intermediary and
requesting that the Purchase Contract Agent instruct the Collateral
Agent to release the Senior Notes relating to such Corporate PIES,
whereupon the Purchase Contract Agent shall promptly give such
instruction to the Collateral Agent, substantially in the form of
Exhibit A to the Pledge Agreement; and
(4) paying to the Collateral Agent any fees or expenses
incurred in connection with the Collateral Substitution;
PROVIDED that, Holders may make Collateral Substitutions only in integral
multiples of 20 Corporate PIES. Under no circumstances may a Holder of Corporate
PIES create Treasury PIES after the Election Date.
The Holders' right to create Treasury PIES as set forth in
this Section and the limit of the preceding sentence shall in no way limit the
ability of the Purchase Contract Agent, the Collateral Agent, the Securities
Intermediary or the Remarketing Agent to substitute the Treasury Portfolio for
the Senior Notes then comprising a part of the Corporate PIES upon a Successful
Remarketing (other than the Senior Notes of Holders of Corporate PIES that have
elected not to participate in the Remarketing).
Upon receipt of the Treasury Securities described in clause
(2) above and the instruction described in clause (1) above, in accordance with
the terms of the Pledge Agreement, the Collateral Agent shall, under the Pledge
Agreement, cause the Securities Intermediary to effect the release of such
Senior Notes from the Pledge to the Purchase Contract Agent, free and clear of
the Company's security interest therein, and the transfer of such Senior Notes
to the Purchase Contract Agent on behalf of the Holder. Upon receipt thereof,
the Purchase Contract Agent shall promptly:
(i) cancel the related Corporate PIES;
(ii) transfer the applicable aggregate principal amount of
Senior Notes to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a Treasury PIES Certificate executed by the Company in accordance with
Section 3.3 evidencing the same number of Purchase Contracts as were evidenced
by the cancelled Corporate PIES.
Holders who elect to separate the Senior Notes from the
related Purchase Contracts and to substitute Treasury Securities for such Senior
Notes shall be responsible for any fees or expenses payable to the Collateral
Agent for its services as Collateral Agent in respect of the substitution, and
the Company shall not be responsible for any such fees or expenses.
In the event a Holder making a Collateral Substitution
pursuant to this Section 3.13 fails to effect a book-entry transfer of the
Corporate PIES or fails to deliver Corporate PIES Certificates to the Purchase
Contract Agent after depositing Treasury Securities with the Collateral Agent,
then the Senior Notes or Treasury Portfolio Interest, as the case may be,
constituting a part of such Corporate PIES, and any interest payments on such
Senior Notes or the Treasury Portfolio Interest, as the case may be, shall be
held in the name of the Purchase
29
Contract Agent or its nominee in trust for the benefit of such Holder, until
such Corporate PIES are so transferred or the Corporate PIES Certificates are so
delivered, as the case may be, or, with respect to the Corporate PIES
Certificates, such Holder provides evidence satisfactory to the Company and the
Purchase Contract Agent that such Corporate PIES Certificates have been
destroyed, lost or stolen, together with any indemnity that may be required by
the Purchase Contract Agent and the Company.
Except as described in this Sections 3.13 and 5.3, for so long
as the Purchase Contract relating to a Corporate PIES remains in effect, such
Corporate PIES shall not be separable into its constituent parts, and the rights
and obligations of the Holder in respect of the Senior Note or the Treasury
Portfolio Interest, as the case may be, and the Purchase Contract comprising
such Corporate PIES may be acquired, and may be transferred and exchanged, only
as a Corporate PIES.
Section 3.14. Recreation of Corporate PIES.
A Holder of a Treasury PIES may recreate Corporate PIES at any
time until 5:00 p.m. (New York City time) on the Election Date by:
(1) providing notice to the Purchase Contract Agent,
substantially in the form of Exhibit C hereto, of such Holder's
intention to create Corporate PIES;
(2) for each Treasury PIES such Holder wishes to substitute,
transferring 20 Senior Notes to the Securities Intermediary which shall
then (y) deposit such Senior Notes in the Collateral Account under the
Pledge Agreement and instruct the Collateral Agent to hold such Senior
Notes as Collateral and (z) instruct the Collateral Agent to release to
such Holder of Treasury Security formerly subject to the Pledge;
(3) transferring the related Treasury PIES to the Purchase
Contract Agent accompanied by a notice to the Purchase Contract Agent,
substantially in the form of Exhibit D hereto, (i) stating that the
Holder has transferred the relevant amount of Senior Notes to the
Securities Intermediary and (ii) requesting that the Purchase Contract
Agent instruct the Collateral Agent to release the Treasury Securities
relating to such Treasury PIES, whereupon the Purchase Contract Agent
shall promptly give such instruction to the Collateral Agent,
substantially in the form of Exhibit C to the Pledge Agreement; and
(4) paying to the Collateral Agent any fees or expenses
incurred in connection with the recreation of Corporate PIES;
PROVIDED that, Holders of Treasury PIES may recreate Corporate PIES in integral
multiples of 20 Treasury PIES for 20 Corporate PIES. Under no circumstance may a
Holder of Treasury PIES recreate Corporate PIES after the Election Date.
Upon receipt of the Senior Notes described in clause (1) above
and the instruction described in clause (2) above, in accordance with the terms
of the Pledge Agreement, the Collateral Agent shall cause the Securities
Intermediary to effect the release of such Treasury Securities from the Pledge
to the Purchase Contract Agent, free and clear of the Company's security
interest therein, and the transfer of such Treasury Securities to the Purchase
Contract
30
Agent on behalf of the Holder. Upon receipt thereof, the Purchase Contract Agent
shall promptly:
(i) cancel the related Treasury PIES;
(ii) transfer the applicable aggregate principal amount of
Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a Corporate PIES Certificate executed by the Company in accordance with
Section 3.3 evidencing the same number of Purchase Contracts as were evidenced
by the cancelled Treasury PIES.
Holders who elect to recreate Corporate PIES shall be
responsible for any fees or expenses payable to the Collateral Agent for its
services as Collateral Agent in respect of the substitution, and the Company
shall not be responsible for any such fees or expenses.
Except as provided in this Section 3.14, for so long as the
Purchase Contract relating to a Treasury PIES remains in effect, such Treasury
PIES shall not be separable into its constituent parts and the rights and
obligations of the Holder of such Treasury PIES in respect of the 1/20 of a
Treasury Security and the Purchase Contract comprising such Treasury PIES may be
acquired, and may be transferred and exchanged, only as a Treasury PIES.
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event.
Upon the occurrence of a Termination Event and the transfer to
the Purchase Contract Agent of Senior Notes, Treasury Portfolio or Treasury
Securities, as the case may be, relating to the Corporate PIES and the Treasury
PIES, as the case may be, pursuant to the terms of the Pledge Agreement, the
Purchase Contract Agent shall request transfer instructions with respect to such
Senior Notes, Treasury Portfolio Interest or Treasury Securities, as the case
may be, from each Holder by written request, substantially in the form of
Exhibit E hereto, mailed to such Holder at its address as it appears in the
Corporate PIES Register or the Treasury PIES Register, as the case may be.
Upon book-entry transfer of the Corporate PIES or Treasury
PIES or delivery of a Corporate PIES Certificate or Treasury PIES Certificate to
the Purchase Contract Agent with such transfer instructions, the Purchase
Contract Agent shall transfer such Senior Notes, Treasury Portfolio Interest or
Treasury Securities, as the case may be, relating to such Corporate PIES or
Treasury PIES, as the case may be, to such Holder by book-entry transfer, or
other appropriate procedures, in accordance with such instructions. In the event
a Holder of Corporate PIES or Treasury PIES fails to effect such transfer or
delivery, such Senior Notes, Treasury Portfolio Interest or Treasury Securities,
as the case may be, relating to such Corporate PIES or Treasury PIES, as the
case may be, and any interest thereon, shall be held in the name of the Purchase
Contract Agent or its nominee in trust for the benefit of such Holder, until the
earlier of:
(1) such Corporate PIES or Treasury PIES are transferred or
the Corporate PIES Certificate or Treasury PIES Certificate is
surrendered or such Holder provides satisfactory evidence that such
Corporate PIES Certificate or Treasury PIES Certificate
31
has been destroyed, lost or stolen, together with any indemnity that
may be required by the Purchase Contract Agent and the Company; and
(2) the expiration of the time period specified in the
abandoned property laws of the relevant State.
Section 3.16. No Consent to Assumption.
Each Holder of a PIES, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365 of
the Bankruptcy Code or otherwise, of the Purchase Contract by the Company or its
trustee, receiver, liquidator or a person or entity performing similar functions
in the event that the Company becomes the debtor under the Bankruptcy Code or
subject to other similar state or federal law providing for reorganization or
liquidation.
ARTICLE IV
THE SENIOR NOTES
Section 4.1. Interest Payments; Rights to Interest Preserved.
Each Corporate PIES issued hereunder shall consist of the
beneficial ownership by the Holder of one Senior Note issued pursuant to the
Indenture or, if the Corporate PIES shall have been remarketed by the
Remarketing Agent pursuant to the Remarketing Agreement, the Treasury Portfolio
Interest, in each case, subject to the Pledge thereof by such Holder under the
Pledge Agreement.
An interest payment on any Senior Note which is paid on any
Payment Date or the portion of the proceeds of a Treasury Portfolio Interest
equal to the interest payable on a Senior Note on the Purchase Contract
Settlement Date (such portion the "Treasury Portfolio Return"), as the case may
be, subject to receipt thereof by the Purchase Contract Agent from the
Collateral Agent as provided by the terms of the Pledge Agreement, shall
promptly be paid to the Person in whose name the Corporate PIES Certificate (or
one or more Predecessor Corporate PIES Certificates) of which such Senior Note
or the Treasury Portfolio Interest, as the case may be, is a part is registered
at the close of business on the Record Date for such Payment Date or Purchase
Contract Settlement Date, as applicable.
Each Corporate PIES Certificate evidencing, in part, the
Senior Note or the Treasury Portfolio Interest delivered under this Agreement
upon registration of transfer of or in exchange for or in lieu of any other
Corporate PIES Certificate shall carry the right to accrued and unpaid interest,
and the right to accrue interest (and accreted and accreting principal in the
case of non-interest bearing components of the Treasury Portfolio Interest),
which rights were carried by the Senior Note or the Treasury Portfolio Interest,
as the case may be, relating to such other Corporate PIES Certificate.
In the case of any Corporate PIES with respect to which (1)
Cash Settlement of the related Purchase Contract is effected on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, (2)
Early Settlement of the related Purchase Contract is
32
effected on an Early Settlement Date, (3) Merger Early Settlement of the related
Purchase Contract is effected on a Merger Early Settlement Date or (4) a
Collateral Substitution is effected, in each case, on a date that is after any
Record Date and on or prior to the next succeeding Payment Date, the interest
payment on the Senior Note or the Treasury Portfolio Return, as the case may be,
relating to such Corporate PIES otherwise payable on such Payment Date shall be
payable on such Payment Date notwithstanding such Cash Settlement, Early
Settlement, Merger Early Settlement or Collateral Substitution, as the case may
be, and such payment shall, subject to receipt thereof by the Purchase Contract
Agent, be payable to the Person in whose name the Corporate PIES Certificate (or
one or more Predecessor Corporate PIES Certificates) was registered at the close
of business on the corresponding Record Date. Except as otherwise expressly
provided in the immediately preceding sentence, in the case of any Corporate
PIES with respect to which Cash Settlement, Early Settlement or Merger Early
Settlement of the related Purchase Contract is effected on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, on an Early
Settlement Date or on a Merger Early Settlement Date, respectively, or with
respect to which a Collateral Substitution has been effected, interest payments
on the related Senior Notes or the Treasury Portfolio Return, as the case may
be, that would otherwise be payable after the fifth Business Day preceding the
Purchase Contract Settlement Date, after the Early Settlement Date, after the
Merger Early Settlement Date, or after the Collateral Substitution,
respectively, shall not be payable hereunder to the Holder of such Corporate
PIES; PROVIDED, HOWEVER, that to the extent that such Holder continues to hold
the Separated Senior Note that formerly comprised a part of such Holder's
Corporate PIES, such Holder shall be entitled to receive the interest payments
on such Separated Senior Note, as provided in the Indenture.
Section 4.2. Interest Rate Reset.
The applicable interest rate borne by the Senior Notes,
whether or not part of Corporate PIES, shall be reset to the Reset Rate,
pursuant to the Indenture, and will be effective with respect to all Senior
Notes, whether or not then constituting a component of Corporate PIES, as of the
Remarketing Settlement Date, in the case of a Successful Remarketing, or, as of
the Purchase Contract Settlement Date, in the event of a Failed Remarketing or
in the event there is no Remarketing pursuant to clause (c) of the definition of
Reset Rate in the Indenture Officers' Certificate.
Section 4.3. Notice and Voting.
The Purchase Contract Agent is entitled to exercise the voting
and any other consensual rights pertaining to the Pledged Senior Notes, but only
to the extent instructed in writing by the Holders as described below. Upon
receipt of notice of any meeting at which holders of Senior Notes are entitled
to vote or upon any solicitation of consents, waivers or proxies of holders of
Senior Notes, the Purchase Contract Agent shall, as soon as practicable
thereafter, mail to the Holders of Corporate PIES a notice:
(1) containing such information as is contained in the notice
or solicitation;
(2) stating that each Holder on the record date set by the
Purchase Contract Agent therefor (which, to the extent possible, shall
be the same date as the record date for
33
determining the holders of Senior Notes entitled to vote) shall be
entitled to instruct the Purchase Contract Agent as to the exercise of
the voting rights pertaining to such Senior Notes relating to their
Corporate PIES; and
(3) stating the manner in which such instructions may be
given.
Upon the written request of the Holders of Corporate PIES on
such record date received by the Purchase Contract Agent at least six calendar
days prior to such meeting or by the expiration date of any such solicitation,
the Purchase Contract Agent shall endeavor insofar as practicable to vote or
cause to be voted, in accordance with the instructions set forth in such
requests, the maximum principal amount of Senior Notes as to which any
particular voting instructions are received. In the absence of specific
instructions from the Holder of Corporate PIES, the Purchase Contract Agent
shall abstain from voting the Senior Notes relating such Corporate PIES. The
Company hereby agrees, if applicable, to solicit Holders of Corporate PIES to
timely instruct the Purchase Contract Agent in order to enable the Purchase
Contract Agent to vote such Senior Notes.
ARTICLE V
THE PURCHASE CONTRACTS; THE REMARKETING
Section 5.1. Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless a Termination Event has
occurred as set forth in Section 5.7, an Early Settlement has occurred in
accordance with Section 5.9 or a Merger Early Settlement has occurred in
accordance with Section 5.10, obligate the Holder of the related PIES to
purchase, and the Company to sell, on the Purchase Contract Settlement Date at a
price equal to the Stated Amount (the "Purchase Price"), a number of newly
issued shares of Common Stock equal to the Settlement Rate then in effect. The
"Settlement Rate" is equal to:
(1) if the Applicable Closing Price per share is equal to or
greater than $_____ (the "Threshold Appreciation Price"), ______ shares
of Common Stock per Purchase Contract;
(2) if the Applicable Closing Price per share is less than the
Threshold Appreciation Price, but greater than $_____ (the "Reference
Price"), the number of shares of Common Stock determined by dividing
the Stated Amount by the Applicable Closing Price; and
(3) if the Applicable Closing Price per share is less than or
equal to the Reference Price, ______ shares of Common Stock per
Purchase Contract,
in each case subject to adjustment as provided in Section 5.5 (and in each case
rounded upward or downward to the nearest 1/10,000th of a share).
Promptly after the calculation of the Settlement Rate and the
Applicable Closing Price, the Company shall give the Purchase Contract Agent
notice thereof. All calculations and determinations of the Settlement Rate and
the Applicable Closing Price shall be made by the
34
Company or its agent based on their good faith calculations, and the Purchase
Contract Agent shall have no responsibility with respect thereto.
As provided in Section 5.12, no fractional shares of Common
Stock will be issued upon settlement of Purchase Contracts.
The "Applicable Closing Price" means the average of the
Closing Prices per share of Common Stock on each of the 20 consecutive Trading
Days ending on the third Trading Day immediately preceding the Purchase Contract
Settlement Date, or in the case of the exercise of a Merger Early Settlement
right, the Cash Merger Date.
The "Closing Price" per share of the Common Stock on any date
of determination means:
(1) the closing sale price (or, if no closing price is
reported, the last reported sale price) per share of the Common Stock
on the NYSE on such date;
(2) if the Common Stock is not listed for trading on the NYSE
on any such date, the closing sale price per share as reported in the
composite transactions for the principal United States securities
exchange on which the Common Stock is so listed;
(3) if the Common Stock is not so listed on a United States
national or regional securities exchange, the closing sale price per
share as reported by The Nasdaq Stock Market;
(4) if the Common Stock is not so reported, the last quoted
bid price per share for the Common Stock in the over-the-counter market
as reported by the National Quotation Bureau or similar organization;
or
(5) if such bid price is not available, the average of the
mid-point of the last bid and ask prices per share of the Common Stock
on such date from at least three nationally recognized independent
investment banking firms retained for this purpose by the Company.
A "Trading Day" means a day on which the Common Stock (1) is
not suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (2) has
traded at least once on the national or regional securities exchange or
association or the over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a Corporate PIES or a Treasury PIES, by its
acceptance thereof:
(1) irrevocably authorizes the Purchase Contract Agent to
enter into and perform the related Purchase Contract on its behalf as
its attorney-in-fact (including the execution of Certificates on behalf
of such Holder as such Holder's attorney-in-fact);
(2) agrees to be bound by the terms and provisions thereof;
35
(3) covenants and agrees to perform its obligations under such
Purchase Contracts;
(4) consents to the provisions hereof;
(5) irrevocably authorizes the Purchase Contract Agent to
enter into and perform this Agreement and the Pledge Agreement on its
behalf as its attorney-in-fact; and
(6) consents to and agrees to be bound by the Pledge of the
Senior Notes or the Treasury Securities pursuant to the Pledge
Agreement; and
(7) agrees to treat itself as the owner of the related Senior
Notes, Treasury Portfolio Interest or Treasury securities, as the case
may be, in each case for U.S. Federal, state and local income and
franchise tax purposes;
PROVIDED that, upon a Termination Event, the rights of the Holder of such PIES
under the Purchase Contract may be enforced without regard to any other rights
or obligations. Each Holder of a Corporate PIES or a Treasury PIES, by its
acceptance thereof, further covenants and agrees, that to the extent and in the
manner provided in Section 5.3 and the Pledge Agreement, but subject to the
terms thereof, proceeds from the Remarketing of the Senior Notes (less the
Remarketing Fee payable to the Remarketing Agent pursuant to the Remarketing
Agreement), the Treasury Portfolio Interest or the Treasury Securities at
maturity, as the case may be, to be paid upon settlement of such Holder's
obligations to purchase Common Stock under the Purchase Contract, shall be paid
on the Purchase Contract Settlement Date by the Collateral Agent to the Company
in satisfaction of such Holder's obligations under such Purchase Contract and
such Holder shall acquire no right, title or interest in such payments.
Upon registration of transfer of a Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of this Agreement, the Purchase Contracts relating to
such Certificate and the Pledge Agreement and the transferor shall be released
from the obligations under this Agreement, the Purchase Contracts relating to
the Certificates so transferred and the Pledge Agreement. The Company covenants
and agrees, and each Holder of a Certificate, by its acceptance thereof,
likewise covenants and agrees, to be bound by the provisions of this paragraph.
Section 5.2. Purchase Contract Adjustment Payments.
The Company shall pay, on each Payment Date, the Purchase
Contract Adjustment Payments payable in respect of each Purchase Contract to the
Person in whose name a Certificate (or one or more Predecessor Certificates) is
registered at the close of business on the Record Date next preceding such
Payment Date in such coin or currency of the United States as at the time of
payment shall be legal tender for the payment of public and private debts. The
Purchase Contract Adjustment Payments will be payable at the office of the
Purchase Contract Agent in The City of New York maintained for that purpose or,
at the option of the Company, by wire transfer or by check mailed to the address
of the Person entitled thereto at such Person's address as it appears on the
Corporate PIES Register or Treasury PIES Register.
36
Upon the occurrence of a Termination Event, the Company's
obligation to pay Purchase Contract Adjustment Payments (including any accrued
Purchase Contract Adjustment Payments) shall cease.
Each Certificate delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of (including as a
result of a Collateral Substitution or the recreation of Corporate PIES) any
other Certificate shall carry the right to accrued and unpaid Purchase Contract
Adjustment Payments, and the right to accrue Purchase Contract Adjustment
Payments, which rights were carried by the Purchase Contracts relating to such
other Certificates from the date of issuance to and excluding, the Purchase
Contract Settlement Date, unless such Purchase Contracts have been settled
earlier pursuant to this Agreement.
In the case of any PIES with respect to which (1) Cash
Settlement of the related Purchase Contract is effected on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, (2) Early
Settlement of the related Purchase Contract is effected on an Early Settlement
Date or (3) Merger Early Settlement of the related Purchase Contract is effected
on a Merger Early Settlement Date, in each case, on a date that is after any
Record Date and on or prior to the next succeeding Payment Date, Purchase
Contract Adjustment Payments otherwise payable on such Payment Date shall be
payable on such Payment Date notwithstanding such Cash Settlement, Early
Settlement or Merger Early Settlement, as the case may be, and such Purchase
Contract Adjustment Payments shall be paid to the Person in whose name the
Certificate evidencing such PIES (or one or more Predecessor Certificates) is
registered at the close of business on such Record Date. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any
PIES with respect to which Cash Settlement, Early Settlement or Merger Early
Settlement of the related Purchase Contract is effected on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, an Early
Settlement Date or a Merger Early Settlement Date, respectively, Purchase
Contract Adjustment Payments that would otherwise be payable after the fifth
Business Day preceding the Purchase Contract Settlement Date, after the Early
Settlement Date or after the Merger Early Settlement Date, respectively, with
respect to such Purchase Contract shall not be payable.
Promptly after the calculation of any adjustment to the
Purchase Contract Adjustment Payments arising from a Reset Transaction, the
Company shall give the Purchase Contract Agent notice thereof. All calculations
and determinations of the Adjusted Purchase Contract Adjustment Payment Rate
shall be made by the Company or its agent in good faith and the Purchase
Contract Agent shall have no responsibility with respect thereto. The Purchase
Contract Agent shall not at any time be under any duty or responsibility to any
Holder of PIES to determine whether any facts exist which may require any
adjustment to the Purchase Contract Adjustment Payments, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed in making the same.
Section 5.3. Payment of Purchase Price; Remarketing.
(a) Unless a Termination Event has occurred or a Holder has
settled the related Purchase Contract through a Cash Settlement pursuant to
Section 5.8, an Early Settlement pursuant to Section 5.9 or a Merger Early
Settlement pursuant to Section 5.10, the settlement of
37
the Purchase Contract relating to a PIES will be made by Remarketing in
accordance with this Section 5.3.
(b) The Company shall engage ▇▇▇▇▇▇ Brothers Inc., or another
nationally recognized investment bank, to act as Remarketing Agent (the
"Remarketing Agent") pursuant to the Remarketing Agreement to remarket (1) the
Pledged Senior Notes comprising part of Corporate PIES, other than those Pledged
Senior Notes of Holders that have elected not to participate in the Remarketing
pursuant to Section 5.3(e) below, and (2) the Separated Senior Notes of holders
of Separated Senior Notes that have elected to participate in the Remarketing
pursuant to paragraph 19(i)(C) of the Indenture Officers' Certificate and
Section 5.7 of the Pledge Agreement (the Senior Notes described in clauses (1)
and (2) collectively being referred to as the "Remarketing Senior Notes")
pursuant to the Remarketing Procedures.
On the seventh Business Day prior to the Initial Remarketing
Date, the Company shall give notice of Remarketing in an Authorized Newspaper,
including the specific U.S. Treasury security or securities (including the CUSIP
number and/or the principal terms of such Treasury security or securities) that
must be delivered by Holders of Corporate PIES that elect not to participate in
the Remarketing pursuant to Section 5.3(e) below, no later than 5:00 p.m. (New
York City time) on the Election Date. Not later than 15 calendar days nor more
than 30 calendar days prior to the Initial Remarketing Date, the Company shall
request DTC (or any successor Depositary), to notify its Beneficial Owners or
Depositary Participants holding Corporate PIES or Separate Senior Notes of the
impending Remarketing.
The Purchase Contract Agent shall notify, by 11:00 a.m. (New
York City time), on the Business Day immediately preceding the Initial
Remarketing Date, the Remarketing Agent, the Collateral Agent, the Trustee and
the Company, by use of a notice substantially in the form of Exhibit G hereto,
of the aggregate principal amount of Pledged Senior Notes of Corporate PIES
Holders to be remarketed on the Initial Remarketing Date or Subsequent
Remarketing Date, as applicable, and the Collateral Agent, pursuant to the
Pledge Agreement, having separately notified the Remarketing Agent, the Trustee
and the Company of the aggregate principal amount of Separated Senior Notes to
be included on the Initial Remarketing Date or Subsequent Remarketing Date, as
applicable, by 11:00 a.m. (New York City time), on the Business Day immediately
preceding the Initial Remarketing Date, shall concurrently therewith, pursuant
to the Pledge Agreement, deliver for Remarketing to the Remarketing Agent all
Remarketing Senior Notes. Upon receipt of such notice from the Purchase Contract
Agent and the Collateral Agent and such Remarketing Senior Notes from the
Collateral Agent, the Remarketing Agent, pursuant to the Remarketing Agreement,
will, use its commercially reasonable efforts to remarket such Remarketing
Senior Notes on such date pursuant to the Remarketing Procedures and the
Remarketing Agreement.
If there has been a Successful Initial Remarketing or a
Successful Subsequent Remarketing, the Remarketing Agent will on the Remarketing
Date of such Remarketing (i) deduct and retain for itself as the remarketing fee
for itself an amount not exceeding 25 basis points (0.25%) of the principal
amount of each remarketed Remarketing Senior Note (the "Remarketing Fee"), (ii)
use the remaining proceeds attributable to the Pledged Senior Notes from such
Successful Remarketing to purchase the appropriate U.S. Treasury securities (the
"Treasury Portfolio" and the related interest in the Treasury Portfolio
applicable to a Corporate
38
PIES, the "Treasury Portfolio Interest") with the CUSIP numbers, if any,
selected by Remarketing Agent, described in clauses (1)(i) and (2)(ii) of the
definition of Remarketing Value related to the Senior Notes of Holders of
Corporate PIES that were remarketed, (iii) if any Separated Senior Notes were
remarketed, remit to the Collateral Agent for payment to the holders of such
Separated Senior Notes sold in the Remarketing the remaining proceeds from such
Successful Remarketing attributable to the Separated Senior Notes in an amount
equal to the principal amount of such Senior Notes and (iv) if there then
remains any proceeds from such Successful Remarketing, after the application of
such proceeds as set forth in clauses (i) through (iii) above of this sentence,
then remit any such remaining proceeds to the Purchase Contract Agent for the
benefit of holders of the remarketed Senior Notes and to the Collateral Agent
for the benefit of the holders of such Separated Senior Notes, on a pro rata
basis, PROVIDED, HOWEVER, that if such Successful Remarketing is consummated
after 4:30 p.m. (New York City time) on such Remarketing Date and, despite using
its commercially reasonable efforts, the Remarketing Agent cannot cause the
applications of the proceeds specified above to occur on such Remarketing Date,
then the Remarketing Agent may make such applications and remittances on the
next succeeding Business Day. Holders of Remarketing Senior Notes that are so
remarketed will not otherwise be responsible for the payment of any remarketing
fee or expenses in connection with the Remarketing. On the Remarketing
Settlement Date, the Remarketing Agent shall deliver the Treasury Portfolio to
the Collateral Agent. The Collateral Agent, for the benefit of the Company, will
thereupon apply such Treasury Portfolio, in accordance with the Pledge
Agreement, to secure such Holders' obligations under the Purchase Contracts.
In the event that all or any portion of the Pledged Treasury
Portfolio Interest matures before the Purchase Contract Settlement Date, the
Collateral Agent shall invest the proceeds therefrom in Permitted Investments in
accordance with the Pledge Agreement. The Collateral Agent shall cause the
Securities Intermediary to remit, on the Purchase Contract Settlement Date, a
portion of the proceeds of the maturing Pledged Treasury Portfolio Interest and
of the investment earnings from the related investment in Permitted Investments,
in each case, in an amount equal to the Treasury Portfolio Return to the
Purchase Contract Agent for the benefit of the Holders of the related Corporate
PIES when received. Without receiving any instruction from any such Holder of
Corporate PIES, the Collateral Agent shall apply, on the Purchase Contract
Settlement Date, the proceeds of the maturing Pledged Treasury Portfolio
Interest and of the investment earnings from the related investment in Permitted
Investments in an aggregate amount equal to the aggregate Purchase Price
applicable to such Corporate PIES to satisfy in full such Holder's obligations
to pay the Purchase Price to purchase the shares of Common Stock under the
related Purchase Contracts on the Purchase Contract Settlement Date. In the
event the sum of the proceeds from the related Pledged Treasury Portfolio
Interest and the investment earnings from the related investment in Permitted
Investments exceeds the sum of the related Treasury Portfolio Return and the
aggregate Purchase Price of the Purchase Contracts being settled thereby, the
Collateral Agent shall instruct the Securities Intermediary to distribute such
excess, when received, to the Purchase Contract Agent for distribution to the
Holders whose Purchase Contracts were settled with such proceeds, on a pro rata
basis.
If, by 4:00 p.m. (New York City time), on the ninth Business
Day preceding the Purchase Contract Settlement Date, the Remarketing Agent,
despite using its commercially reasonable efforts, has been and is unable to
remarket all of the Remarketing Senior Notes tendered for purchase at a price
equal to at least the Remarketing Value, the Remarketing Agent
39
shall Transfer to the Collateral Agent, by the sixth Business Day preceding the
Purchase Contract Settlement Date, the Pledged Senior Notes that that were to be
remarketed in the Initial or Subsequent Remarketing, whereupon the Collateral
Agent shall, for the benefit of the Company, apply such Pledged Senior Notes, to
secure the obligation of the related Holders of Corporate PIES to purchase
Common Stock under the related Purchase Contracts.
(c) Unless a Termination Event has occurred or a Holder has
settled the related Purchase Contract through a Cash Settlement, an Early
Settlement or a Merger Early Settlement, or a Successful Initial Remarketing or
a Successful Subsequent Remarketing has occurred, such Holder shall be deemed to
have consented to the Remarketing of such Holder's Pledged Senior Notes in the
Final Remarketing on the Final Remarketing Date. The Purchase Contract Agent,
shall by 11:00 a.m. (New York City time), on the Business Day immediately
preceding the Final Remarketing Date, notify the Remarketing Agent, the
Collateral Agent, the Trustee and the Company, by use of a notice substantially
in the form of Exhibit G hereto, of such event and of the aggregate principal
amount of Pledged Senior Notes of Corporate PIES Holders to be remarketed on the
Final Remarketing Date, whereupon the Collateral Agent, shall concurrently
therewith, without any instruction from such Holder of Corporate PIES with
respect to their Pledged Senior Notes, transfer the Remarketing Senior Notes to
the Remarketing Agent for Remarketing. Upon receiving such Remarketing Senior
Notes, the Remarketing Agent, pursuant to the terms of the Remarketing
Agreement, will use its commercially reasonable efforts to remarket such
Remarketing Senior Notes on the Final Remarketing Date.
If a Successful Final Remarketing shall have occurred, the
Remarketing Agent will on the Remarketing Date (i) deduct and retain for itself
the Remarketing Fee, pursuant to the Remarketing Agreement, (ii) cause the
remaining proceeds of the Remarketing with respect to the Pledged Senior Notes
in an amount equal to the aggregate principal amount of such Senior Notes to be
delivered to the Collateral Agent, on the Remarketing Settlement Date, (iii) if
any Separated Senior Notes were remarketed, remit to the Collateral Agent for
payment to the holders of such Separated Senior Notes sold in the Remarketing
the remaining proceeds from such Successful Remarketing attributable to the
Separated Senior Notes in an amount equal to the principal amount of such Senior
Notes and (iv) if there remains any proceeds from such Successful Remarketing,
after the application of such proceeds as set forth in clauses (i) through (iv)
of this sentence, then remit such remaining proceeds to the Purchase Contract
Agent for the benefit of the holders of the Pledged Senior Notes and to the
Collateral Agent for the benefit of holders of Separated Senior Notes, on a pro
rata basis, PROVIDED, HOWEVER, that if such Successful Remarketing is
consummated after 4:30 p.m. (New York City time) on such Remarketing Date and,
despite using its commercially reasonable efforts, the Remarketing Agent cannot
cause the applications of the proceeds specified above to occur on such
Remarketing Date, then the Remarketing Agent may make such applications and
remittances on the next succeeding Business Day. Holders of the Remarketing
Senior Notes that are so remarketed will not otherwise be responsible for the
payment of any remarketing fee or expenses in connection with the Remarketing.
The Purchase Contract Agent shall give written directions to the Collateral
Agent, and the Collateral Agent shall instruct the Securities Intermediary, to
apply a portion of the Proceeds with respect to the Pledged Senior Notes from
such Remarketing, on the Purchase Contract Settlement Date, equal to the
aggregate principal amount of such Pledged Senior Notes
40
to satisfy in full the obligations of such Holders of Corporate PIES to pay the
Purchase Price to purchase the shares of Common Stock under the related Purchase
Contracts.
If, (1) by 4:00 p.m. (New York City time), on the Final
Remarketing Date, despite using its commercially reasonable efforts, the
Remarketing Agent cannot remarket the Senior Notes included in the Remarketing
at a price equal to at least the Remarketing Value, or (2) the Remarketing Agent
has determined that the Remarketing may not be consummated as contemplated
herein and by the Remarketing Procedures under applicable law, the Remarketing
will be deemed to have failed (a "Failed Remarketing"). If a Failed Remarketing
occurs, the Remarketing Agent will, pursuant to the Remarketing Agreement,
promptly advise the Trustee, the Purchase Contract Agent, the Collateral Agent
and the Company that a Failed Remarketing has occurred, whereupon the Company
shall notify the Depositary that a Failed Remarketing has occurred. The
Collateral Agent, under the Pledge Agreement and for the benefit, and on behalf,
of the Company, may exercise its rights as a secured party with respect to such
Pledged Senior Notes, including those actions specified in paragraph (d) below;
PROVIDED that, if upon a Failed Remarketing, the Collateral Agent exercises such
rights for the benefit of the Company with respect to such Pledged Senior Notes,
any accumulated and unpaid interest on such Senior Notes will become payable by
the Company to the Purchase Contract Agent for payment to the Holders of the
Corporate PIES to which such Pledged Senior Notes relate. Such payment will be
made by the Company on or prior to 11:00 a.m. (New York City time), on the
Purchase Contract Settlement Date in lawful money of the United States by
certified or cashiers' check or wire transfer in immediately available funds
payable to or upon the order of the Purchase Contract Agent. The Company will
cause a notice of any Failed Remarketing to be sent to the holders of all Senior
Notes and to be published in an Authorized Newspaper, in each case, no later
than on the Business Day immediately preceding the Purchase Contract Settlement
Date.
(d) With respect to any Pledged Senior Notes which are subject
of a Failed Remarketing, the Collateral Agent, for the benefit of the Company,
and upon written direction of the Company as provided in the Pledge Agreement,
reserves all of its rights as a secured party with respect thereto and, subject
to applicable law and paragraph (e) below, may (i) retain such Senior Notes in
full satisfaction of the Holders' obligations under the related Purchase
Contracts or (ii) sell such Senior Notes in one or more public or private sales.
(e) A Holder of Corporate PIES may elect not to participate in
the Remarketing by creating Treasury PIES by notifying the Purchase Contract
Agent of such election and complying with the procedures for creating Treasury
PIES set forth in Section 3.13 until 5:00 p.m. (New York City time) on the
Election Date. A Holder that does not so create Treasury PIES by delivering the
Treasury Security or Treasury Securities pursuant to this paragraph and Section
3.13 shall be deemed to have elected to participate in any Remarketing.
(f) In the event that all or any portion of the Pledged
Treasury Securities of Treasury PIES matures before the Purchase Contract
Settlement Date, the Collateral Agent shall invest the proceeds therefrom in
Permitted Investments in accordance with the Pledge Agreement.
41
Without receiving any instruction from any such Holder of
Treasury PIES, the Collateral Agent shall apply, on the Purchase Contract
Settlement Date, the proceeds of the maturing Pledged Treasury Securities and of
the investment earnings from the related investment in Permitted Investments, in
each case, in an amount equal to the aggregate Purchase Price applicable to such
Treasury PIES to satisfy in full such Holder's obligations to pay the Purchase
Price to purchase the shares of Common Stock under the related Purchase
Contracts on the Purchase Contract Settlement Date.
In the event the sum of the proceeds from the related Pledged
Treasury Securities and the investment earnings from the related investment in
Permitted Investments exceeds the aggregate Purchase Price of the Purchase
Contracts being settled thereby, the Collateral Agent shall instruct the
Securities Intermediary to distribute such excess, when received, to the
Purchase Contract Agent for distribution to the Holders whose Purchase Contracts
were settled with such proceeds, on a pro rata basis.
(g) Any distributions to Holders of excess funds and interest
described in paragraphs (b), (c) and (f) above shall be payable at the office of
the Purchase Contract Agent in The City of New York maintained for that purpose
or, at the option of the Holder, or the holder of Separated Senior Notes, as
applicable, by check mailed to the address of the Person entitled thereto at
such address as it appears on the Register or by wire transfer to an account
specified by the Holder, or the holder of Separated Senior Notes, as applicable.
(h) The obligations of each Holder to pay the Purchase Price
are non-recourse obligations and except to the extent paid by Cash Settlement,
Early Settlement or Merger Early Settlement, are payable solely out of the
proceeds of any Collateral pledged to secure the obligations of the Holders, and
in no event shall Holders be liable for any deficiency between such payments and
the Purchase Price.
(i) Notwithstanding anything to the contrary herein, the
Company shall not be obligated to issue any Common Stock in respect of a
Purchase Contract or deliver any certificates therefor to the Holder of the
related PIES unless the Company shall have received payment in full of the
aggregate Purchase Price for the shares of Common Stock to be purchased
thereunder by such Holder in the manner herein set forth, which payment, in the
case of Corporate PIES upon the occurrence of a Failed Remarketing, shall occur
by the resale of Pledged Senior Notes or foreclosure on and retention of such
Pledged Senior Notes.
Section 5.4. Issuance of Shares of Common Stock.
Unless a Termination Event, an Early Settlement or a Merger
Settlement shall have occurred on or prior to the Purchase Contract Settlement
Date, upon its receipt of payment in full of the Purchase Price for the shares
of Common Stock purchased by Holders pursuant to the provisions of this Article
and subject to Section 5.5(b), the Company shall issue and deposit with the
Purchase Contract Agent, for the benefit of the Holders of the Outstanding PIES,
one or more certificates representing the newly issued shares of Common Stock
registered in the name of the Purchase Contract Agent (or its nominee) as
custodian for the Holders (such certificates for shares of Common Stock,
together with any dividends or distributions for which a record date
42
and payment date for such dividend or distribution has occurred after the
Purchase Contract Settlement 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 Purchase Contract Agent on or after the Purchase Contract Settlement 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 shares of Common Stock which such
Holder is entitled to receive pursuant to the provisions of this Article Five
(after taking into account all PIES then held by such Holder), together with
cash in lieu of fractional shares as provided in Section 5.12 and any dividends
or distributions with respect to such shares constituting part of the Purchase
Contract Settlement Fund, but without any interest thereon (or, if such
Certificate is not surrendered to the Purchase Contract Agent or if no such
instructions are given to the Purchase Contract Agent by the Holder, the
Purchase Contract Agent shall hold such Certificate representing shares of
Common Stock, cash in lieu of fractional shares and dividends or distributions,
as applicable, in the name of the Purchase Contract Agent or its nominee in
trust for the benefit of such Holder until the expiration of the time period
specified in the abandoned property laws of the relevant State), 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 Purchase Contract
Agent. If any shares of Common Stock issued in respect of a Purchase Contract
are to be registered to a Person other than the Person in whose name the
Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Certificate evidencing such
Purchase Contract or has established to the satisfaction of the Company that
such tax either has been paid or is not payable.
Section 5.5. Adjustment of Settlement Rate and Early Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits,
Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on the Common Stock in Common Stock, the Settlement Rate
in effect or the Early Settlement Rate, as applicable, in effect at the
opening of business on the Business Day following the date fixed for
the determination of shareholders entitled to receive such dividend or
other distribution shall be increased by dividing such Settlement Rate
by a fraction of which:
(i) the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date
fixed for such determination; and
(ii) and the denominator shall be the sum of such
number of shares and the total number of shares constituting
such dividend or other distribution,
such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination.
For the purposes of this paragraph (1), the number of shares of Common
Stock at any time outstanding shall not include shares
43
held in the treasury of the Company but shall include any shares
issuable in respect of any scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company will not pay any
dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
(2) In case the Company shall issue rights, options or
warrants to all holders of Common Stock (not being available on an
equivalent basis to Holders of the PIES upon settlement of the Purchase
Contracts relating to such PIES) entitling them, for a period expiring
within 45 days after the record date for the determination of
shareholders entitled to receive such rights, options or warrants, to
subscribe for or purchase shares of Common Stock at a price per share
less than the Current Market Price per share of Common Stock on the
date fixed for the determination of shareholders entitled to receive
such rights, options or warrants (other than pursuant to a dividend
reinvestment plan), the Settlement Rate or the Early Settlement Rate,
as applicable, in effect at the opening of business on the day
following the date fixed for such determination shall be increased by
dividing such Settlement Rate or the Early Settlement Rate, as
applicable, by a fraction of which:
(i) the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of
Common Stock which the aggregate of the offering price of the
total number of shares of Common Stock so offered for
subscription or purchase would purchase at such Current Market
Price; and
(ii) the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of
Common Stock so offered for subscription or purchase,
such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination.
For the purposes of this paragraph (2), the number of shares of Common
Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include any shares issuable in
respect of any scrip certificates issued in lieu of fractions of shares
of Common Stock. The Company shall not issue any such rights, options
or warrants in respect of shares of Common Stock held in the treasury
of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common Stock,
the Settlement Rate or the Early Settlement Rate, as applicable, in
effect at the opening of business on the day following the day upon
which such subdivision or split becomes effective shall be
proportionately increased, and, conversely, in case outstanding shares
of Common Stock shall each be combined into a smaller number of shares
of Common Stock, the Settlement Rate or the Early Settlement Rate, as
applicable, in effect at the opening of business on the day following
the day upon which such combination becomes effective shall be
proportionately reduced, such increase or reduction, as the case may
be, to become
44
effective immediately after the opening of business on the day
following the day upon which such subdivision, split or combination
becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of Common Stock evidences of its indebtedness
or assets (including securities, but excluding any rights, options or
warrants referred to in paragraph (2) of this Section 5.5(a), any
dividend or distribution paid exclusively in cash and any dividend or
distribution referred to in paragraph (1) of this Section 5.5(a)), the
Settlement Rate or the Early Settlement Rate, as applicable, in effect,
shall be adjusted so that the same shall equal the rate determined by
dividing the Settlement Rate or the Early Settlement Rate, as
applicable, in effect immediately prior to the close of business on the
date fixed for the determination of shareholders entitled to receive
such distribution by a fraction of which:
(i) the numerator shall be the Current Market Price
per share of Common Stock on the date fixed for such
determination less the then fair closing price (as determined
by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of the portion
of the assets or evidences of indebtedness so distributed
applicable to one share of Common Stock; and
(ii) the denominator shall be such Current Closing
Price per share of Common Stock,
such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
shareholders entitled to receive such distribution. In any case in
which this paragraph (4) is applicable, paragraph (2) of this Section
5.5(a) shall not be applicable.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of Common Stock (I) cash (excluding any cash
that is distributed in a Reorganization Event to which Section 5.5(b)
applies or as part of a distribution referred to in paragraph (4) of
this Section 5.5(a)) in an aggregate amount that, combined together
with the aggregate amount of any other distributions to all holders of
Common Stock made exclusively in cash (other than in connection with a
Reorganization Event) within the 12 months preceding the date of
payment of such distribution and in respect of which no adjustment
pursuant to this paragraph (5) or paragraph (6) of this Section has
been made and (II) the aggregate of any cash plus the fair closing
price (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) of
consideration payable in respect of any tender or exchange offer by the
Company or any of its subsidiaries for all or any portion of Common
Stock concluded within the 12 months preceding the date of payment of
the distribution described in Clause (I) above and in respect of which
no adjustment pursuant to this paragraph (5) or paragraph (4) or
paragraph (6) of this Section 5.5(a) has been made, exceeds 15% of the
product of the Current Market Price per share of Common Stock on the
date for the determination of holders of shares of Common Stock
entitled to receive such distribution times the number of shares of
Common Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date for determination,
the Settlement Rate or Early Settlement Rate, as applicable, in effect,
shall be increased so
45
that the same shall equal the rate determined by dividing the
Settlement Rate or Early Settlement Rate, as applicable, in effect
immediately prior to the close of business on the date fixed for
determination of the shareholders entitled to receive such distribution
by a fraction of which:
(i) the numerator shall be equal to the Current
Market Price per share of the Common Stock on the date fixed
for such determination less an amount equal to the quotient of
(x) the combined amount distributed or payable in the
transactions described in clauses (I) and (II) above divided
by (y) the number of shares of Common Stock outstanding on
such date for determination; and
(ii) the denominator shall be equal to the Current
Market Price per share of Common Stock on such date for
determination.
(6) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of Common Stock shall expire
and such tender or exchange offer (as amended upon the expiration thereof) shall
require the payment to shareholders (based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of Purchased Shares) of
(I) an aggregate consideration having a fair closing price (as determined by the
Board of Directors, whose determination shall be conclusive and described in a
Board Resolution) that combined together with the aggregate of the cash plus the
fair closing price (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution), as of the expiration
of such tender or exchange offer, of consideration payable in respect of any
other tender or exchange offer, by the Company or any subsidiary of the Company
for all or any portion of the Common Stock expiring within the 12 months
preceding the expiration of such tender or exchange offer and in respect of
which no adjustment pursuant to paragraph (5) of this Section 5.5(a) or this
paragraph (6) has been made, and (II) the aggregate amount of any distributions
to all holders of Common Stock made exclusively in cash within the 12 months
preceding the expiration of such tender or exchange offer and in respect of
which no adjustment pursuant to paragraph (5) of this Section 5.5(a) or this
paragraph (6) has been made, exceeds 15% of the product of the Current Market
Price per share of Common Stock as of the last time (the "Expiration Time")
tenders could have been made pursuant to such tender or exchange offer (as it
may be amended) times the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time, then, and in each such
case, immediately prior to the opening of business on the day after the date of
the Expiration Time, the Settlement Rate or Early Settlement Rate, as
applicable, in effect, shall be adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate or Early Settlement Rate, as
applicable, in effect immediately prior to the close of business on the date of
the Expiration Time by a fraction of which:
(i) the numerator shall be equal to (A) the product of (1) the
Current Market Price per share of Common Stock on the date of the
Expiration Time and (2) the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time less
(B) the amount of cash plus the fair closing price (determined as
aforesaid) of the aggregate consideration payable to
46
shareholders based on the transactions described in clauses (I) and
(II) above (assuming in the case of clause (I) the acceptance, up to
any maximum specified in the terms of the tender or exchange offer, of
Purchased Shares), and
(ii) the denominator shall be equal to the product of (A) the
Current Market Price per share of Common Stock as of the Expiration
Time and (B) the number of shares of Common Stock outstanding
(including any tendered shares) as of the Expiration Time less the
number of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum,
being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any
reclassification upon a Reorganization Event to which Section 5.5(b)
applies) shall be deemed to involve:
(a) a distribution of such securities other than
Common Stock to all holders of Common Stock (and the effective
date of such reclassification shall be deemed to be "the date
fixed for the determination of shareholders entitled to
receive such distribution" and the "date fixed for such
determination" within the meaning of paragraph (4) of this
Section 5.5(a)); and
(b) a subdivision, split or combination, as the case
may be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and
the effective date of such reclassification shall be deemed to
be "the day upon which such subdivision or split becomes
effective" or "the day upon which such combination becomes
effective", as the case may be, and "the day upon which such
subdivision, split or combination becomes effective" within
the meaning of paragraph (3) of this Section 5.5(a)).
(8) The "Current Market Price" per share of Common Stock on
any day means the average of the daily Closing Prices for the five
consecutive Trading Days selected by the Company commencing not more
than 30 Trading Days before, and ending not later than, the earlier of
the day in question and the day before the "ex date" with respect to
the issuance or distribution requiring such computation. For purposes
of this paragraph, the term "ex date", when used with respect to any
issuance or distribution, shall mean the first date on which the Common
Stock trades regular way on such exchange or in such market without the
right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate or the Early
Settlement Rate, as applicable, shall be calculated to the nearest
1/10,000th of a share of Common Stock (or if there is not a nearest
1/10,000th of a share, to the next lower 1/10,000th of a share). No
adjustment in the Settlement Rate or the Early Settlement Rate, as
applicable, shall be required unless such adjustment would require an
increase or decrease of at least one percent thereof; PROVIDED,
HOWEVER, that any adjustments which by reason of this subparagraph are
not required to be made shall be carried forward and taken into account
in any subsequent adjustment. If an adjustment is made to the
Settlement Rate or the
47
Early Settlement Rate, as applicable, pursuant to paragraph (1), (2),
(3), (4), (5), (6), (7) or (10) of this Section 5.5(a), an adjustment
shall also be made to the Applicable Closing Price solely to determine
which of clauses (1), (2) or (3) of the definition of Settlement Rate
or the Early Settlement Rate, as applicable, in Section 5.1 will apply
on the Purchase Contract Settlement Date. Such adjustment shall be made
by multiplying the Applicable Closing Price by a fraction of which the
numerator shall be the Settlement Rate or the Early Settlement Rate, as
applicable, in effect immediately after such adjustment pursuant to
paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section
5.5(a) and the denominator shall be the Settlement Rate or the Early
Settlement Rate, as applicable, in effect immediately before such
adjustment; PROVIDED, HOWEVER, that if such adjustment to the
Settlement Rate or the Early Settlement Rate, as applicable, in effect,
is required to be made pursuant to the occurrence of any of the events
contemplated by paragraph (1), (2), (3), (4), (5), (7) or (10) of this
Section 5.5(a) during the period taken into consideration for
determining the Applicable Closing Price, appropriate and customary
adjustments shall be made to the Settlement Rate or the Early
Settlement Rate, as applicable.
(10) The Company may make such increases in the Settlement
Rate or the Early Settlement Rate, as applicable, in addition to those
required by this Section 5.5(a), as it considers to be advisable in
order to avoid or diminish any income tax to any holders of shares of
Common Stock resulting from any dividend or distribution of stock or
issuance of rights, options or warrants to purchase or subscribe for
stock or from any event treated as such for income tax purposes or for
any other reason.
(b) Adjustment for Consolidation, Merger or Other
Reorganization Event.
In the event of:
(i) any consolidation or merger of the Company with
or into another Person (other than a merger or consolidation
in which the Company is the continuing corporation and in
which the shares of Common Stock outstanding immediately prior
to the merger or consolidation are not exchanged for cash,
securities or other property of the Company or another
corporation);
(ii) any sale, transfer, lease or conveyance to
another Person of the property of the Company as an entirety
or substantially as an entirety;
(iii) any statutory exchange of securities of the
Company with another Person (other than in connection with a
merger or acquisition); or
(iv) any liquidation, dissolution or winding up of
the Company other than as a result of or after the occurrence
of a Termination Event (any such event, a "Reorganization
Event"),
the Settlement Rate or Early Settlement Rate, as applicable, in effect, will be
adjusted to provide that each Holder of PIES will receive on the Purchase
Contract Settlement Date with respect to each Purchase Contract forming a part
thereof, the kind and amount of securities, cash and other property receivable
upon such Reorganization Event (without any interest thereon, and without any
right to dividends or distribution thereon which have a record date that is
prior to the
48
Purchase Contract Settlement Date) by a Holder of the number of shares of Common
Stock issuable on account of each Purchase Contract if the Purchase Contract
Settlement Date had occurred immediately prior to such Reorganization Event,
assuming such Holder of Common Stock is not a Person with which the Company
consolidated or into which the Company merged or which merged into the Company
or to which such sale or transfer was made, as the case may be (any such Person,
a "Constituent Person"), or an Affiliate of a Constituent Person to the extent
such Reorganization Event provides for different treatment of Common Stock held
by Affiliates of the Company and non-Affiliates and such Holder failed to
exercise his rights of election, if any, as to the kind or amount of securities,
cash and other property receivable upon such Reorganization Event (PROVIDED that
if the kind or amount of securities, cash and other property receivable upon
such Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a Constituent
Person or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("non-electing share"), then for the purpose of
this Section the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares).
In the event of such a Reorganization Event, the Person formed
by such consolidation, merger or exchange or the Person which acquires the
assets of the Company or, in the event of a liquidation, dissolution or winding
up of the Company, the Company or a liquidating trust created in connection
therewith, shall execute and deliver to the Purchase Contract Agent an agreement
supplemental hereto providing that the Holders of each Outstanding PIES shall
have the rights provided by this Section 5.5(b). Such supplemental agreement
shall provide for adjustments which, for events subsequent to the effective date
of such supplemental agreement, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section. The above
provisions of this Section shall similarly apply to successive Reorganization
Events.
(c) All calculations and determinations pursuant to this
Section 5.5 shall be made by the Company or its agent and the Purchase Contract
Agent shall have no responsibility with respect thereto.
Section 5.6. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate or Early Settlement Rate, as
applicable, and the Applicable Closing Price are adjusted as herein provided,
the Company shall:
(i) forthwith compute the adjusted Settlement Rate or Early
Settlement Rate, as applicable and Applicable Closing Price in accordance with
Section 5.5 and prepare and transmit to the Purchase Contract Agent an Officers'
Certificate setting forth the Settlement Rate or Early Settlement Rate, as
applicable and the Applicable Closing Price, the method of calculation thereof
in reasonable detail, and the facts requiring such adjustment and upon which
such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an
event that requires an adjustment to the Settlement Rate or Early Settlement
Rate, as applicable and the
49
Applicable Closing Price pursuant to Section 5.5 (or if the Company is not aware
of such occurrence, as soon as practicable after becoming so aware), provide a
written notice to the Holders of the PIES of the occurrence of such event and a
statement in reasonable detail setting forth the method by which the adjustment
to the Settlement Rate then or Early Settlement Rate, as applicable and the
Applicable Closing Price was determined and setting forth the adjusted
Settlement Rate or Early Settlement Rate, as applicable and Applicable Closing
Price.
(b) The Purchase Contract Agent shall not at any time be under
any duty or responsibility to any Holder of PIES to determine whether any facts
exist which may require any adjustment of the Settlement Rate or Early
Settlement Rate, as applicable or the Applicable Closing Price, or with respect
to the nature or extent or calculation of any such adjustment when made, or with
respect to the method employed in making the same. The Purchase Contract Agent
shall not be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at the time be issued or delivered with respect to any Purchase Contract;
and the Purchase Contract Agent makes no representation with respect thereto.
The Purchase Contract Agent shall not be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock pursuant to a
Purchase Contract or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article.
Section 5.7. Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights of
the Holders to receive, and the obligations of the Company to pay, Purchase
Contract Adjustment Payments and the rights and obligations of Holders to
purchase shares of Common Stock, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Purchase
Contract Agent or the Company, if, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon and after the
occurrence of a Termination Event, the PIES shall thereafter represent the right
to receive the Senior Notes or Treasury Portfolio Interest forming a part of
such PIES in the case of Corporate PIES, or Treasury Securities in the case of
Treasury PIES, in accordance with the provisions of Section 5.4 of the Pledge
Agreement. Upon the occurrence of a Termination Event, the Company shall
promptly, but in no event later than two Business Days thereafter, give written
notice to the Purchase Contract Agent, the Collateral Agent and the Holders, at
their addresses as they appear in the Register.
Section 5.8. Cash Settlement
(a) (i) Unless a Holder has effected an Early Settlement
pursuant to Section 5.9 or a Merger Early Settlement pursuant to Section 5.10, a
Termination Event shall have occurred pursuant to Section 5.7 or a Successful
Remarketing shall have occurred, Holders of Corporate PIES may settle their
Purchase Contracts in cash by delivering to the Purchase Contract Agent a notice
in substantially the form of Exhibit F hereto regarding its intention to pay in
cash ("Cash Settlement") the Purchase Price for the shares of Common Stock to be
purchased pursuant to the related Purchase Contract; PROVIDED that such notice
must be given by 11:00 a.m. (New York
50
City time) on the sixth Business Day immediately preceding the Purchase Contract
Settlement Date.
(ii) A Holder of a Corporate PIES who has so notified the
Purchase Contract Agent of its intention to make a Cash Settlement in accordance
with paragraph (a) (i) above shall pay the Purchase Price to the Securities
Intermediary for deposit in the Collateral Account prior to 11:00 a.m. (New York
City time) on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date in lawful money of the United States by certified or cashiers'
check or wire transfer, in each case in immediately available funds payable to
or upon the order of the Securities Intermediary and the Securities Intermediary
shall instruct the Collateral Agent to release to the Purchase Contract Agent
the Pledged Senior Notes, for delivery to the Holders of the related Corporate
PIES who have complied with this Section. Any cash received by the Collateral
Agent shall be invested promptly by the Securities Intermediary in Permitted
Investments and paid to the Company on the Purchase Contract Settlement Date in
settlement of the Purchase Contract in accordance with the terms of this
Agreement and the Pledge Agreement. Any funds received by the Securities
Intermediary in respect of the investment earnings from the investment in such
Permitted Investments shall be distributed to the Purchase Contract Agent when
received for payment, on a pro rata basis based on the number of Corporate PIES
formerly held by such Holder, to the Holders of the related Corporate PIES on
the Purchase Contract Settlement Date.
(iii) If a Holder of a Corporate PIES fails to notify the
Purchase Contract Agent of its intention to make a Cash Settlement in accordance
with paragraph (a)(i) above, or notifies the Purchase Contract Agent as provided
in paragraph (a)(i) above of its intention to pay the Purchase Price in cash but
fails to make such payment as required by paragraph (a)(ii) above, such Holder
shall be deemed to have consented (A) to the disposition of the Pledged Senior
Notes on the third Business Day prior to the Purchase Contract Settlement Date
pursuant to the Final Remarketing as described in Section 5.3 or, (B) if a
Failed Remarketing occurs, to the Collateral Agent, for the benefit of the
Company, and upon written direction of the Company as provided in the Pledge
Agreement, exercising all of its rights as a secured party with respect to any
Pledged Senior Notes under the Pledge Agreement and, subject to applicable law
and Section 5.3(i), by either (i) retaining such Senior Notes in full
satisfaction of such Holder's obligations under the related Purchase Contracts
or (ii) selling such Senior Notes in one or more public or private sales.
(iv) By 11:00 a.m. (New York City time), on the fourth
Business Day immediately preceding the Purchase Contract Settlement Date, the
Purchase Contract Agent, based on notices received by the Purchase Contract
Agent pursuant to Section 5.8(a)(i) hereof and notice from the Securities
Intermediary regarding cash received by it prior to such time, shall notify the
Remarketing Agent, the Collateral Agent, the Trustee and the Company, by use of
a notice substantially in the form of Exhibit G hereto, of the aggregate
principal amount of Pledged Senior Notes to be remarketed on the Final
Remarketing Date in accordance with the procedures set forth in Section 5.3(c).
(b) (i) Unless a Holder of a Treasury PIES has effected an
Early Settlement of the related Purchase Contract in the manner described in
Section 5.9 or a Merger Early Settlement of the related Purchase Contract in the
manner described in Section 5.10, a
51
Termination Event shall have occurred pursuant to Section 5.7 or a Successful
Remarketing shall have occurred, Holders of Treasury PIES may settle their
Purchase Contracts in cash by delivering to each Holder of a Treasury PIES who
intends to pay in cash to satisfy such Holder's obligation under the Purchase
Contract shall notify the Purchase Contract Agent by use of a notice in
substantially the form of Exhibit F hereto regarding its intention to pay in
cash the Purchase Price for the shares of Common Stock to be purchased pursuant
to the related Purchase Contract. To settle its Purchase Contracts in cash
pursuant to this Section, such notice must be given prior to 5:00 p.m. (New York
City time), on the second Business Day immediately preceding the Purchase
Contract Settlement Date. Prior to 11:00 a.m. (New York City time), on the next
succeeding Business Day, the Purchase Contract Agent shall notify the Collateral
Agent of the receipt of such notices from such Holders intending to make a Cash
Settlement.
(ii) A Holder of a Treasury PIES who has so notified the
Purchase Contract Agent of its intention to make a Cash Settlement in accordance
with paragraph (b)(i) above shall pay the Purchase Price to the Securities
Intermediary for deposit in the Collateral Account prior to 11:00 a.m. (New York
City time), on the Business Day immediately preceding the Purchase Contract
Settlement Date in lawful money of the United States by certified or cashiers'
check or wire transfer, in each case, in immediately available funds payable to
or upon the order of the Securities Intermediary and the Securities Intermediary
shall instruct the Collateral Agent to release to the Purchase Contract Agent
the Pledged Treasury Securities for delivery to the Holders of the related
Treasury PIES who have complied with this Section. Any cash received by the
Collateral Agent shall be invested promptly by the Securities Intermediary in
Permitted Investments and paid to the Company on the Purchase Contract
Settlement Date in settlement of the Purchase Contract in accordance with the
terms of this Agreement and the Pledge Agreement. Any funds received by the
Securities Intermediary in respect of the investment earnings from the
investment in such Permitted Investments shall be distributed to the Purchase
Contract Agent when received for payment to the Holder of the related Treasury
PIES on the Purchase Contract Settlement Date.
(iii) If a Holder of a Treasury PIES fails to notify the
Purchase Contract Agent of its intention to make a Cash Settlement in accordance
with paragraph (b)(i) above, or does notify the Purchase Contract Agent as
provided in paragraph (b)(i) above of its intention to pay the Purchase Price in
cash but fails to make such payment as required by paragraph (b)(ii) above, then
upon the maturity of the Pledged Treasury Securities held by the Securities
Intermediary, the principal amount of the Treasury Securities received by the
Securities Intermediary shall be invested promptly in Permitted Investments. On
the Purchase Contract Settlement Date, an amount equal to the Purchase Price
shall be remitted to the Company as payment thereof without receiving any
instructions from the Holder of the related Treasury PIES. In the event the sum
of the Proceeds from the related Pledged Treasury Securities and the investment
earnings earned from such investments is in excess of the aggregate Purchase
Price of the Purchase Contracts being settled thereby, the Collateral Agent
shall cause the Securities Intermediary to distribute such excess to the
Purchase Contract Agent for the benefit of the Holder of the related Treasury
PIES when received.
52
(c) Upon Cash Settlement of any Purchase Contract:
(i) the Collateral Agent will in accordance with the terms of
the Pledge Agreement cause the Pledged Senior Notes, or the Pledged Treasury
Securities, as the case may be, relating to the relevant PIES to be released
from the Pledge, free and clear of any security interest of the Company, and
transferred to the Purchase Contract Agent for delivery to the Holder thereof or
its designee as soon as practicable; and
(ii) subject to the receipt thereof, the Purchase Contract
Agent shall, by book-entry transfer or other appropriate procedures, in
accordance with written instructions provided by the Holder thereof, transfer
such Senior Notes, or such Treasury Securities, as the case may be (or, if no
such instructions are given to the Purchase Contract Agent by the Holder, the
Purchase Contract Agent shall hold such Senior Notes or such Treasury
Securities, as the case may be, and any interest payment thereon, in the name of
the Purchase Contract Agent or its nominee in trust for the benefit of such
Holder until the expiration of the time period specified in the abandoned
property laws of the relevant State) and, in connection with such Senior Notes,
the Purchase Contract Agent shall have no responsibility to vote or take any
other consensual action with respect thereto.
Section 5.9. Early Settlement.
(a) Unless a Holder has effected a Merger Early Settlement of
the related Purchase Contract pursuant to Section 5.10 or a Termination Event
shall have occurred pursuant to Section 5.7, subject to and upon compliance with
the provisions of this Section 5.9, at the option of the Holder thereof,
Purchase Contracts relating to PIES may be settled early ("Early Settlement") on
or prior to the Election Date. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts, the Holder of the Certificate
evidencing PIES shall deliver such Certificate to the Purchase Contract Agent at
the Corporate Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early on the reverse thereof duly completed
and accompanied by payment (payable to the Company in immediately available
funds) in an amount (the "Early Settlement Amount") equal to:
(1) the product of (A) the Stated Amount times (B) the number
of Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement; PLUS
(2) if such delivery is made with respect to any Purchase
Contracts during the period from the close of business on any Record
Date next preceding any Payment Date to the opening of business on such
Payment Date, an amount equal to the Purchase Contract Adjustment
Payments payable on such Payment Date with respect to such Purchase
Contracts.
Except as provided in the immediately preceding sentence and subject to the last
paragraph of Section 5.2, no payment shall be made upon Early Settlement of any
Purchase Contract on account of any Purchase Contract Adjustment Payments
accrued on such Purchase Contract or on account of any dividends on the Common
Stock issued upon such Early Settlement. If the foregoing requirements are first
satisfied with respect to Purchase Contracts relating to any PIES at or prior to
5:00 p.m. (New York City time), on a Business Day, such day shall be the "Early
Settlement Date" with respect to such PIES and if such requirements are first
satisfied after 5:00
53
p.m. (New York City time), on a Business Day or on a day that is not a Business
Day, the "Early Settlement Date" with respect to such PIES shall be the next
succeeding Business Day.
Upon the receipt of such Certificate and Early Settlement
Amount from the Holder, the Purchase Contract Agent shall pay to the Company
such Early Settlement Amount, the receipt of which payment the Company shall
confirm in writing. The Purchase Contract Agent shall then, in accordance with
Section 5.6 of the Pledge Agreement, notify the Collateral Agent that (A) such
Holder has elected to effect an Early Settlement, which notice shall set forth
the number of such Purchase Contracts as to which such Holder has elected to
effect Early Settlement, (B) the Purchase Contract Agent has received from such
Holder, and paid to the Company as confirmed in writing by the Company, the
related Early Settlement Amount and (C) all conditions to such Early Settlement
have been satisfied.
(b) Upon Early Settlement of Purchase Contracts by a Holder of
the related PIES, the Company shall issue, and the Holder shall be entitled to
receive, ________ shares of Common Stock, subject to adjustment in the same
manner and at the same time as the Settlement Rate is adjusted pursuant to
Section 5.5, on account of each Purchase Contract as to which Early Settlement
is effected (the "Early Settlement Rate").
(c) No later than the third Business Day after the applicable
Early Settlement Date, the Company shall cause:
(1) the shares of Common Stock issuable upon Early Settlement
of Purchase Contracts to be issued and delivered, together with payment
in lieu of any fraction of a share, as provided in Section 5.12; and
(2) the related Senior Notes, in the case of Corporate PIES,
or the related Treasury Securities, in the case of Treasury PIES, to be
released from the Pledge by the Collateral Agent and transferred, in
each case, to the Purchase Contract Agent for delivery to the Holder
thereof or its designee.
(d) Upon Early Settlement of any Purchase Contracts, and
subject to receipt of shares of Common Stock from the Company and the related
Senior Notes, or Treasury Securities, as the case may be, from the Securities
Intermediary, as applicable, the Purchase Contract Agent shall, in accordance
with the instructions provided by the Holder thereof on the applicable form of
Election to Settle Early on the reverse of the Certificate evidencing the
related PIES:
(1) transfer to the Holder the related Senior Notes or
Treasury Securities, as the case may be, forming a part of such PIES,
and
(2) deliver to the Holder a certificate or certificates for
the full number of shares of Common Stock issuable upon such Early
Settlement, together with payment in lieu of any fraction of a share,
as provided in Section 5.12.
(e) In the event that Early Settlement is effected with
respect to Purchase Contracts relating to less than all the PIES evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the
Purchase Contract Agent shall execute on behalf
54
of the Holder, authenticate and deliver to the Holder thereof, at the expense of
the Company, a Certificate evidencing the PIES as to which Early Settlement was
not effected.
(f) Notwithstanding anything to the contrary contained herein,
Holders may make effect Early Settlement of Treasury PIES only in integral
multiples of 20 Treasury PIES.
Section 5.10. Early Settlement Upon Merger.
(a) In the event of a merger or consolidation of the Company
(which for purposes of this Section 5.10 includes any successor company pursuant
to a Cash Merger (as defined below)) in which the Common Stock outstanding
immediately prior to such merger or consolidation is exchanged for consideration
consisting of at least 30% cash or cash equivalents (any such event a "Cash
Merger" and the date on which the Cash Merger takes place being referred to as a
"Cash Merger Date"), then the Company (or the successor to the Company
hereunder) shall be required to offer the Holder of each Outstanding PIES the
right to settle the Purchase Contract relating to such PIES prior to the
Purchase Contract Settlement Date (such early settlement, "Merger Early
Settlement") as provided herein. On or before the fifth Business Day after the
consummation of a Cash Merger, the Company or, at the request and expense of the
Company, the Purchase Contract Agent, shall give all Holders notice of the
occurrence of the Cash Merger and of the right of Merger Early Settlement
arising as a result thereof. The Company shall also deliver a copy of such
notice to the Purchase Contract Agent and the Collateral Agent.
Each such notice shall contain:
(i) the date, which shall be not less than 20 Business Days
nor more than 30 Business Days after the date of such notice, on which the
Merger Early Settlement may be effected (the "Merger Early Settlement Date");
(ii) the date, which shall be three Business Days prior to the
Merger Early Settlement Date, by which the Merger Early Settlement right must be
exercised by notice by the Holders to the Purchase Contract Agent and the
Company;
(iii) the Settlement Rate in effect as a result of such Cash
Merger and the kind and amount of securities, cash and other property receivable
by the Holder upon settlement of each Purchase Contract pursuant to Section
5.5(b);
(iv) a statement to the effect that all or a portion of the
Purchase Price payable by the Holder to settle the Purchase Contract will be
offset against the amount of cash so receivable upon exercise of Merger Early
Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the
Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder must
(i) deliver to the Purchase Contract Agent at the Corporate Trust Office at
least three Business Days before the Merger Settlement Date, at 5:00 p.m. (New
York City time), the Certificate(s) evidencing the PIES with respect to which
the Merger Early Settlement right is being exercised, duly endorsed
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for transfer to the Company or in blank with the form of Election to Settle
Early on the reverse thereof duly completed and (ii) make payment (payable to
the Company in immediately available funds in an amount equal to the Early
Settlement Amount less the amount of cash that otherwise would be deliverable by
the Company upon settlement of the Purchase Contract in lieu of Common Stock
pursuant to Section 5.5(b) and as described in the notice to Holders (the
"Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall
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 5.5, in respect of the number of Purchase Contracts
for which such Merger Early Settlement right was exercised, and (ii) the related
Pledged Senior Notes, or if substituted therefore, the Pledged Treasury
Portfolio Interest, in the case of Corporate PIES, or Pledged Treasury
Securities, in the case of Treasury PIES, to be released from the Pledge by the
Collateral Agent and transferred, in each case, to the Purchase Contract Agent
for delivery to the Holder thereof or its designee. In the event a Merger Early
Settlement right shall be exercised by a Holder in accordance with the terms
hereof, all references herein to Purchase Contract Settlement Date shall be
deemed to refer to such Merger Early Settlement Date.
(d) Upon Merger Early Settlement of any Purchase Contracts,
and subject to receipt of such net cash, securities or other property from the
Company and the Pledged Senior Notes, Pledged Treasury Portfolio Interest or
Pledged Treasury Securities, as the case may be, from the Collateral Agent, the
Purchase Contract Agent shall, in accordance with the instructions provided by
the Holder thereof on the applicable form of Election to Settle Early on the
reverse of the Certificate evidencing the related PIES, (i) transfer to the
Holder the Pledged Senior Notes, Pledged Treasury Portfolio Interest or Pledged
Treasury Securities, as the case may be, forming a part of such PIES, and (ii)
deliver to the Holder such net cash, securities or other property issuable upon
such Merger Early Settlement together with payment in lieu of any fraction of a
share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with
respect to Purchase Contracts relating to less than all the PIES evidenced by a
Certificate, upon such Merger Early Settlement the Company (or the successor to
the Company hereunder) shall execute and the Purchase Contract Agent shall
authenticate, countersign and deliver to the Holder thereof, at the expense of
the Company, a Certificate evidencing the PIES as to which Merger Early
Settlement was not effected.
(f) Notwithstanding anything to the contrary contained herein,
Holders may effect Merger Early Settlement of PIES only in integral multiples of
20 Corporate PIES or 20 Treasury PIES.
Section 5.11. Optional Remarketing.
Pursuant to the Indenture and the Remarketing Agreement,
holders of Separated Senior Notes may elect to have such Separated Senior Note
remarketed if such holder, on or prior to 5:00 p.m. (New York City time) on the
Election Date, delivers (a) to the Trustee and the Collateral Agent a notice of
that election, substantially in the form of Exhibit B of the Indenture
56
Officers' Certificate and Exhibit F of the Pledge Agreement, respectively,
specifying the aggregate principal amount of Senior Notes to be remarketed, and
(b) such Separated Senior Notes, by book-entry transfer or other appropriate
procedures, to the Collateral Agent for Remarketing, in each case, pursuant to
the Indenture. Once the holder of such Separated Senior Notes delivers such
notice and Separated Senior Notes as specified in the preceding sentence, such
election may not be withdrawn and may not be conditioned upon the level at which
the Reset Rate is established in the Remarketing; PROVIDED, HOWEVER, that if
such a holder delivers only such a notice but not the Separated Senior Notes
subject to the notice, then none of such holder's Separated Senior Notes shall
be included in the Remarketing.
Section 5.12. No Fractional Shares.
No fractional shares or scrip representing fractional shares
of Common Stock shall be issued or delivered upon settlement on the Purchase
Contract Settlement Date or upon Early Settlement or Merger Early Settlement of
any Purchase Contracts. If Certificates evidencing more than one Purchase
Contract shall be surrendered for settlement at one time by the same Holder, the
number of full shares of Common Stock which shall be delivered upon settlement
shall be computed on the basis of the aggregate number of Purchase Contracts
evidenced by the Certificates so surrendered. Instead of any fractional share of
Common Stock which would otherwise be deliverable upon settlement of any
Purchase Contracts on the Purchase Contract Settlement Date or upon Early
Settlement or Merger Early Settlement, the Company, through the Purchase
Contract Agent, shall make a cash payment in respect of such fractional interest
in an amount equal to the value of such fractional shares times the Applicable
Closing Price. The Company shall provide the Purchase Contract Agent from time
to time with sufficient funds to permit the Purchase Contract Agent to make all
cash payments required by this Section 5.12 in a timely manner. Promptly after
the calculation of the Applicable Closing Price, the Company shall give the
Purchase Contract Agent notice thereof. All calculations and determinations of
the Applicable Closing Price shall be made by the Company or its agent and the
Purchase Contract Agent shall have no responsibility with respect thereto.
Section 5.13. Charges and Taxes.
The Company will pay all stock transfer and similar taxes
attributable to the initial issuance and delivery of the shares of Common Stock
pursuant to the Purchase Contracts; PROVIDED, HOWEVER, that the Company shall
not be required to pay any such tax or taxes which may be payable in respect of
any exchange of or substitution for a Certificate evidencing a PIES or any
issuance of a share of Common Stock in a name other than that of the registered
Holder of a Certificate surrendered in respect of the PIES evidenced thereby,
other than in the name of the Purchase Contract Agent, as custodian for such
Holder, and the Company shall not be required to issue or deliver such share
certificates or Certificates unless the Person or Persons requesting the
transfer or issuance thereof shall have paid to the Company the amount of such
tax or shall have established to the satisfaction of the Company that such tax
has been paid.
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ARTICLE VI
REMEDIES
Section 6.1. Unconditional Right of Holders to Receive Purchase Contract
Adjustment Payments and to Purchase Shares of Common Stock.
Each Holder of Corporate PIES or Treasury PIES shall have the
right, which is absolute and unconditional, (1) (subject to the payment by such
Holder of Purchase Contract Adjustment Payments pursuant to Section 5.9(a)), to
receive each Purchase Contract Adjustment Payment with respect to the Purchase
Contract constituting a part of such PIES on the respective Payment Date for
such PIES and (2) to purchase shares of Common Stock pursuant to such Purchase
Contract and, in each such case, to institute suit for the enforcement of any
such Purchase Contract Adjustment Payment and right to purchase shares of Common
Stock, and such rights shall not be impaired without the consent of such Holder.
Section 6.2. Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any
right or remedy under this Agreement and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to such Holder,
then and in every such case, subject to any determination in such proceeding,
the Company and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of such
Holder shall continue as though no such proceeding had been instituted.
Section 6.3. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Certificates in the last
paragraph of Section 3.10, no right or remedy herein conferred upon or reserved
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.4. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or
remedy upon a default shall impair any such right or remedy or constitute a
waiver of any such right. Every right and remedy given by this Article or by law
to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
Section 6.5. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of
Corporate PIES or Treasury PIES, by its acceptance of such Corporate PIES or
Treasury PIES, shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any
58
right or remedy under this Agreement, or in any suit against the Purchase
Contract Agent for any action taken, suffered or omitted by it as Purchase
Contract Agent, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against any
party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; PROVIDED that the provisions
of this Section shall not apply to any suit instituted by the Company, to any
suit instituted by the Purchase Contract Agent, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% of the
Outstanding PIES, or to any suit instituted by any Holder for the enforcement of
interest payable on any Senior Notes or Purchase Contract Adjustment Payments on
any Purchase Contract on or after the respective Payment Date therefor in
respect of any PIES held by such Holder, or for enforcement of the right to
purchase shares of Common Stock under the Purchase Contracts constituting part
of any PIES held by such Holder.
Section 6.6. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Agreement; and the Company expressly waives
(to the extent that it may lawfully do so) all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Purchase Contract Agent or the Holders, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VII
THE PURCHASE CONTRACT AGENT
Section 7.1. Certain Duties and Responsibilities.
(a) The Purchase Contract Agent:
(1) undertakes to perform, with respect to the PIES, such
duties and only such duties as are specifically set forth in this
Agreement and the Pledge Agreement, and no implied covenants or
obligations shall be read into this Agreement or the Pledge Agreement
against the Purchase Contract Agent; and
(2) in the absence of bad faith on its part, may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to
the Purchase Contract Agent and conforming to the requirements of this
Agreement or the Pledge Agreement, as applicable, but in the case of
any certificates or opinions which by any provision hereof are
specifically required to be furnished to the Purchase Contract Agent,
the Purchase Contract Agent shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Agreement or the Pledge Agreement, as applicable, but shall have no
duty to
59
confirm or investigate the accuracy of mathematical calculations or
other facts stated therein.
(b) No provision of this Agreement or the Pledge Agreement
shall be construed to relieve the Purchase Contract Agent from liability for its
own grossly negligent action, its own grossly negligent failure to act, or its
own willful misconduct, EXCEPT that:
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Purchase Contract Agent shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Purchase Contract Agent was grossly
negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement or the Pledge Agreement
shall require the Purchase Contract Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers.
(c) Whether or not therein expressly so provided, every
provision of this Agreement and the Pledge Agreement relating to the conduct or
affecting the liability of or affording protection to the Purchase Contract
Agent shall be subject to the provisions of this Section.
(d) The Purchase Contract Agent is authorized to execute and
deliver the Pledge Agreement in its capacity as Purchase Contract Agent. The
Purchase Contract Agent shall be entitled to all of the rights, privileges,
immunities and indemnities contained in this Agreement with respect to any
duties of the Purchase Contract Agent under, or actions taken, omitted to be
taken or suffered by the Purchase Contract Agent pursuant to the Pledge
Agreement.
Section 7.2. Notice of Default.
Within 30 days after the occurrence of any default by the
Company hereunder of which a Responsible Officer of the Purchase Contract Agent
has actual knowledge, the Purchase Contract Agent shall transmit by mail to the
Company and the Holders of PIES, as their names and addresses appear in the
Register, notice of such default hereunder, unless such default shall have been
cured or waived.
Section 7.3. Certain Rights of Purchase Contract Agent.
Subject to the provisions of Section 7.1:
(1) the Purchase Contract Agent may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
60
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate, Issuer
Order or Issuer Request, and any resolution of the Board of Directors
of the Company may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Agreement or the
Pledge Agreement the Purchase Contract Agent shall deem it desirable
that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Purchase Contract Agent (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, conclusively rely upon an Officers'
Certificate of the Company;
(4) the Purchase Contract Agent may consult with counsel of
its selection and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(5) the Purchase Contract Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Purchase Contract
Agent, in its discretion, may make reasonable further inquiry or
investigation into such facts or matters related to the execution,
delivery and performance of the Purchase Contracts as it may see fit,
and, if the Purchase Contract Agent shall determine to make such
further inquiry or investigation, it shall be given a reasonable
opportunity to examine the books, records and premises of the Company,
personally or by agent or attorney;
(6) the Purchase Contract Agent may execute any of the powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or an Affiliate and the Purchase Contract
Agent shall not be responsible for any misconduct or negligence on the
part of any agent or attorney or an Affiliate appointed with due care
by it hereunder;
(7) the rights, privileges, protections, immunities and
benefits given to the Purchase Contract Agent, including, but not
limited to, its right to be indemnified, are extended to, and shall be
enforceable by, the Purchase Contract Agent in each of its capacities
hereunder, and to each Purchase Contract Agent, custodian and other
Person employed to act hereunder;
(8) the Purchase Contract Agent shall not be liable for any
action taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(9) the Purchase Contract Agent shall not be charged with
knowledge of any default by the Company hereunder unless a Responsible
Officer of the Purchase Contract Agent shall have received at the
Corporate Trust Office of the Purchase Contract Agent written notice of
such default;
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(10) the permissive right of the Purchase Contract Agent to do
things enumerated in this Agreement shall not be construed as a duty;
(11) in no event shall the Purchase Contract Agent be liable
for any consequential, punitive, indirect or special loss or damages of
any kind whatsoever (including but not limited to lost profit), even if
the Purchase Contract Agent has been advised of the likelihood of such
loss or damage and regardless of the form of action;
(12) the Purchase Contract Agent shall not be responsible or
liable for any failure or delay in the performance of its obligations
under this Agreement arising out of or caused directly or indirectly,
by circumstances beyond its reasonable control, including without
limitation, acts of God; earthquake; fires; floods; wars; civil or
military disturbances; terrorist acts; sabotage; epidemics; riots;
interruptions, loss or malfunctions of utilities, computer (hardware or
software) or communications service; accidents; labor disputes; and
acts of civil or military authority or governmental actions; it being
understood that the Purchase Contract Agent shall use reasonable
efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the
circumstances; and
(13) the Purchase Contract Agent may request that the Company
deliver a certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified action
pursuant to this Agreement, which certificate may be signed by any
person authorized to sign an Officers' Certificate, including any
person specified as so authorized in any such certificate previously
delivered and not superseded.
Section 7.4. Not Responsible for Recitals or Issuance of PIES.
The recitals contained herein and in the Certificates shall be
taken as the statements of the Company, and the Purchase Contract Agent assumes
no responsibility for their accuracy. The Purchase Contract Agent makes no
representations as to the validity or sufficiency of either this Agreement or of
the PIES, or of the Pledge Agreement or the Pledge. The Purchase Contract Agent
shall not be accountable for the use or application by the Company of the
proceeds in respect of the PIES or the Purchase Contracts and shall not be
responsible for the perfection, priority or maintenance of any security interest
created or intended to be created under the Pledge Agreement.
Section 7.5. May Hold PIES.
Any Registrar or any other agent of the Company, or the
Purchase Contract Agent and its Affiliates, in their individual or any other
capacity, may become the owner or pledgee of PIES and may otherwise deal with
the Company, the Collateral Agent or any other Person with the same rights it
would have if it were not Registrar or such other agent, or the Purchase
Contract Agent.
Section 7.6. Money Held in Custody.
Money held by the Purchase Contract Agent in custody hereunder
need not be segregated from the other funds except to the extent required by law
or provided herein. The
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Purchase Contract Agent shall be under no obligation to invest or pay interest
on any money received by it hereunder except as otherwise agreed in writing with
the Company.
Section 7.7. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Purchase Contract Agent compensation for all
services rendered by it hereunder and under the Pledge Agreement as the
Company and the Purchase Contact Agent shall from time to time agree;
(2) except as otherwise expressly provided for herein, to
reimburse the Purchase Contract Agent upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Purchase Contract Agent in accordance with any provision of this
Agreement and the Pledge Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its gross negligence or willful misconduct; and
(3) to indemnify the Purchase Contract Agent and any
predecessor Purchase Contract Agent for, and to hold it harmless
against, any loss, liability or expense, including taxes [(other than
taxes based upon, measured by or determined by the income of the
Purchase Contract Agent)] incurred without gross negligence or willful
misconduct on its part, arising out of or in connection with the
acceptance or administration of its duties hereunder, including the
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
For purposes of this Section 7.7, "Purchase Contract Agent"
shall include any predecessor Purchase Contract Agent; provided, however, that
the negligence, bad faith or willful misconduct of any Purchase Contract Agent
hereunder shall not affect the rights of any other Purchase Contract Agent
hereunder.
The provisions of this Section 7.7 shall survive the
termination of this Agreement, the satisfaction or discharge of the PIES and/or
the Separated Senior Notes and/or the resignation or removal of the Purchase
Contract Agent.
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility.
There shall at all times be a Purchase Contract Agent
hereunder which shall be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having
(or being a member of a bank holding company having) a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
Federal or State authority and having a corporate trust office in the Borough of
Manhattan, The City of New York, if there be such a corporation in the Borough
of Manhattan, The City of New York, eligible under this Article and willing to
act on reasonable terms. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising
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or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Purchase Contract Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
Section 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Purchase Contract Agent
and no appointment of a successor Purchase Contract Agent pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Purchase Contract Agent in accordance with the applicable requirements
of Section 7.10.
(b) The Purchase Contract Agent may resign at any time by
giving written notice thereof to the Company 60 days prior to the effective date
of such resignation. If the instrument of acceptance by a successor Purchase
Contract Agent required by Section 7.10 shall not have been delivered to the
Purchase Contract Agent within 30 days after the giving of such notice of
resignation, the resigning Purchase Contract Agent may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor Purchase Contract Agent.
(c) The Purchase Contract Agent may be removed at any time by
Act of the Holders of a majority in number of the Outstanding PIES delivered to
the Purchase Contract Agent and the Company. If the instrument of acceptance by
a successor Purchaser Contract Agent required by Section 7.10 shall not have
been delivered to the Purchase Contract Agent within 30 days after such removal,
the Purchase Contract Agent being removed may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Purchase Contract Agent.
(d) If at any time:
(1) the Purchase Contract Agent shall cease to be eligible
under Section 7.8 and shall fail to resign after written request
therefor by the Company or by any such Holder; or
(2) the Purchase Contract Agent shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a receiver of
the Purchase Contract Agent or of its property shall be appointed or
any public officer shall take charge or control of the Purchase
Contract Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Purchase Contract Agent, or (ii) any Holder who has been a bona fide Holder of a
PIES for at least six months may, on behalf of himself and all others similarly
situated, petition, at the expense of the Company, any court of competent
jurisdiction for the removal of the Purchase Contract Agent and the appointment
of a successor Purchase Contract Agent.
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(e) If the Purchase Contract Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Purchase Contract Agent for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Purchase Contract Agent and shall comply with the
applicable requirements of Section 7.10. If no successor Purchase Contract Agent
shall have been so appointed by the Company and accepted appointment in the
manner required by Section 7.10, any Holder who has been a bona fide Holder of a
PIES for at least six months may, on behalf of itself and all others similarly
situated, petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Purchase Contract Agent.
(f) The Company shall give, or shall cause such successor
Purchase Contract Agent to give, notice of each resignation and each removal of
the Purchase Contract Agent and each appointment of a successor Purchase
Contract Agent by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders as their names and addresses appear in the
applicable Register. Each notice shall include the name of the successor
Purchase Contract Agent and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Purchase Contract Agent, every such successor Purchase Contract Agent so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Purchase Contract Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Purchase Contract Agent
shall become effective and such successor Purchase Contract Agent, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, agencies and duties of the retiring Purchase Contract Agent; but, on the
request of the Company or the successor Purchase Contract Agent, such retiring
Purchase Contract Agent shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor Purchase Contract Agent all the
rights, powers and trusts of the retiring Purchase Contract Agent and shall duly
assign, transfer and deliver to such successor Purchase Contract Agent all
property and money held by such retiring Purchase Contract Agent hereunder.
(b) Upon request of any such successor Purchase Contract
Agent, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Purchase Contract Agent
all such rights, powers and agencies referred to in paragraph (a) of this
Section.
(c) No successor Purchase Contract Agent shall accept its
appointment unless at the time of such acceptance such successor Purchase
Contract Agent shall be eligible under this Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Purchase Contract Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Purchase
Contract Agent shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of the Purchase Contract Agent,
shall be the
65
successor of the Purchase Contract Agent hereunder, provided such Person shall
be otherwise eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case any
Certificates shall have been authenticated and executed on behalf of the
Holders, but not delivered, by the Purchase Contract Agent then in office, any
successor to such Purchase Contract Agent may adopt such authentication and
execution and deliver the Certificates so authenticated and executed with the
same effect as if such successor Purchase Contract Agent had itself
authenticated and executed such PIES.
Section 7.12. Preservation of Information; Communications to Holders.
(a) The Purchase Contract Agent shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders received by the
Purchase Contract Agent in its capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Purchase Contract Agent, and furnish to the Purchase Contract
Agent reasonable proof that each such applicant has owned a PIES for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders with respect
to their rights under this Agreement or under the PIES and is by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Purchase Contract Agent shall mail to all the Holders copies of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Purchase Contract Agent of the
materials to be mailed and of payment, or provision for the payment, of the
reasonable expenses of such mailing.
Section 7.13. No Obligations of Purchase Contract Agent.
Except to the extent otherwise expressly provided in this Agreement, the
Purchase Contract Agent assumes no obligations and shall not be subject to any
liability under this Agreement, the Pledge Agreement or any Purchase Contract in
respect of the obligations of the Holder of any PIES thereunder. The Company
agrees, and each Holder of a Certificate, by his acceptance thereof, shall be
deemed to have agreed, that the Purchase Contract Agent's execution of the
Certificates on behalf of the Holders shall be solely as agent and
attorney-in-fact for the Holders, and that the Purchase Contract Agent shall
have no obligation to perform such Purchase Contracts on behalf of the Holders,
except to the extent expressly provided in Article Five hereof. Anything
contained in this Agreement to the contrary notwithstanding, in no event shall
the Purchase Contract Agent or its officers, employees or agents be liable for
indirect, special, punitive, or consequential loss or damage of any kind
whatsoever, including, but not limited to, lost profits, whether or not the
likelihood of such loss or damage was known to the Purchase Contract Agent and
regardless of the form of action.
Section 7.14. Tax Compliance.
(a) The Company will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the PIES or (ii)
the issuance, delivery, holding, transfer, redemption or exercise of
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rights under the PIES. Such compliance shall include, without limitation, the
preparation and timely filing of required returns and the timely payment of all
amounts required to be withheld to the appropriate taxing authority or its
designated agent.
(b) The Purchase Contract Agent shall comply in accordance
with the terms hereof with any reasonable written direction received from the
Company with respect to the execution or certification of any required
documentation and the application of such requirements to particular payments or
Holders or in other particular circumstances, and may for purposes of this
Agreement conclusively rely on any such direction in accordance with the
provisions of Section 7.1(a)(2) hereof.
(c) The Purchase Contract Agent shall maintain all appropriate
records documenting compliance with such requirements, and shall make such
records available, on written request, to the Company or its authorized
representative within a reasonable period of time after receipt of such request.
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
Section 8.1. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Purchase Contract Agent, at any time
and from time to time, may enter into one or more agreements supplemental
hereto, in form satisfactory to the Company and the Purchase Contract Agent, to:
(1) evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the
Company herein and in the Certificates;
(2) evidence and provide for the acceptance of appointment
hereunder by a successor Purchase Contract Agent;
(3) add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company;
(4) make provision with respect to the rights of Holders
pursuant to the requirements of Section 5.5(b); or
(5) except as provided for in Section 5.5, cure any ambiguity,
correct or supplement any provisions herein which may be inconsistent
with any other provisions herein, or make any other provisions with
respect to such matters or questions arising under this Agreement,
PROVIDED such action shall not adversely affect the interests of the
Holders.
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Section 8.2. Supplemental Agreements With Consent of Holders.
With the consent of the Holders of not less than a majority of
the outstanding Purchase Contracts voting together as one class, by Act of said
Holders delivered to the Company and the Purchase Contract Agent, the Company,
when authorized by a Board Resolution, and the Purchase Contract Agent may enter
into an agreement or agreements supplemental hereto for the purpose of modifying
in any manner the terms of the Purchase Contracts, or the provisions of this
Agreement or the rights of the Holders in respect of the PIES; PROVIDED,
HOWEVER, that, except as contemplated herein, no such supplemental agreement
shall, without the unanimous consent of the Holders of each outstanding Purchase
Contract affected thereby, other than as expressly contemplated by this
Agreement,
(1) change any Payment Date;
(2) change the amount or the type of Collateral required to be
Pledged to secure a Holder's obligations under the Purchase Contract,
impair the right of the Holder of any Purchase Contract to receive
distributions on the related Collateral or otherwise adversely affect
the Holder's rights in or to such Collateral;
(3) reduce Purchase Contract Adjustment Payments or change any
place where, or the coin or currency in which, Purchase Contract
Adjustment Payments are payable;
(4) impair the right to institute suit for the enforcement of
any Purchase Contract;
(5) reduce the number of shares of Common Stock to be
purchased pursuant to any Purchase Contract, increase the price to
purchase shares of Common Stock upon settlement of any Purchase
Contract, change the Purchase Contract Settlement Date or otherwise
adversely affect the Holder's rights under any Purchase Contract; or
(6) reduce the percentage of the outstanding Purchase
Contracts the consent of whose Holders is required for any such
supplemental agreement,
PROVIDED that, if any amendment or proposal referred to above would adversely
affect only the Corporate PIES or the Treasury PIES after securities of such
class are created and remain Outstanding, then only the affected class of Holder
as of the record date, if any, for the Holders entitled to vote thereon or
consent thereto will be entitled to vote or consent on such amendment or
proposal, and such amendment or proposal shall not be effective except with the
vote or consent of Holders of not less than a majority of such class; and
PROVIDED, FURTHER, that the unanimous consent of the Holders of each outstanding
Purchase Contract of the related Corporate PIES or Treasury PIES, as the case
may be, shall be required to approve any amendment or proposal specified in
clauses (1) through (6) above.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental agreement,
but it shall be sufficient if such Act shall approve the substance thereof.
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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 Purchase Contract Agent
shall be entitled to receive, and (subject to Section 7.1) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement. The
Purchase Contract Agent may, but shall not be obligated to, enter into any such
supplemental agreement which affects the Purchase Contract Agent's own rights,
duties or immunities under this Agreement or otherwise.
Section 8.4. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this
Article, this Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of this Agreement for all purposes; and
every Holder of Certificates theretofore or thereafter authenticated, executed
on behalf of the Holders and delivered hereunder, shall be bound thereby.
Section 8.5. Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders
and delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Purchase Contract Agent, bear a
notation in form approved by the Purchase Contract Agent as to any matter
provided for in such supplemental agreement. If the Company shall so determine,
new Certificates so modified as to conform, in the opinion of the Purchase
Contract Agent and the Company, to any such supplemental agreement may be
prepared and executed by the Company and authenticated, executed on behalf of
the Holders and delivered by the Purchase Contract Agent in exchange for
Outstanding Certificates.
ARTICLE IX
MERGER, CONSOLIDATION SALE OR CONVEYANCE
Section 9.1. When Company May Merge, Etc.
The Company shall not consolidate with or merge into, or sell,
lease (for a term extending beyond the last stated maturity of the PIES and the
Senior Notes then Outstanding) or convey all or substantially all of its assets
to, any Person or group of Affiliated Persons in one transaction or a series of
related transactions, unless the Company shall be the continuing corporation, or
the successor or transferee Person expressly assumes by one or more supplemental
agreements, in form satisfactory to the Purchase Contract Agent, all the
obligations of the Company with respect to the PIES and this Agreement, and the
Company or the successor or transferee Person, as the case may be, (i) shall be
a Corporation organized and existing under the laws of one of the states in the
United States and (ii) shall not, immediately after such consolidation or merger
or sale, lease or conveyance, be in default in the performance or any covenant
or condition hereunder or under any of the PIES. The Company shall deliver to
the Purchase Contract Agent an Officers' Certificate (as defined in the Original
Indenture) and an
69
Opinion of Counsel (as defined in the Original Indenture), each stating that
such consolidation, merger sale, lease or conveyance and such supplemental
agreement comply with this Agreement and that all conditions precedent to the
consummation of any such consolidation, or merger, or any sale, lease or
conveyance have been met.
Section 9.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease or
conveyance of all or substantially all of the assets of the Company in
accordance with Section 9.1, the successor corporation or the transferee
corporation formed by such consolidation or into which the Company is merged or
to which such transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Agreement with the
same effect as if such successor corporation had been named as the Company
herein.
Such successor or transferee Person thereupon may cause to be
signed, and may issue either in its own name or in the name of Sierra Pacific
Resources, any or all of the Certificates evidencing PIES issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Purchase Contract Agent; and, upon the order of such successor or such
transferee Person, instead of the Company, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Purchase Contract
Agent shall authenticate and execute on behalf of the Holders and deliver any
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Purchase Contract Agent for authentication and
execution, and any Certificate evidencing PIES which such successor corporation
or transferee corporation thereafter shall cause to be signed and delivered to
the Purchase Contract Agent for that purpose. All the Certificates issued shall
in all respects have the same legal rank and benefit under this Agreement as the
Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Certificates had been issued at the date of
the execution hereof.
In case of any such merger, consolidation, share exchange,
sale, assignment, transfer, lease or conveyance such change in phraseology and
form (but not in substance) may be made in the Certificates evidencing PIES
thereafter to be issued as may be appropriate.
Section 9.3. Limitation.
Nothing in this Agreement shall be deemed to prevent or
restrict; (a) any consolidation or merger after the consummation of which the
Company would be the surviving or resulting entity or any conveyance or other
transfer or lease of any part of the properties of the Company which does not
constitute the entirety, or substantially the entirety, thereof; or (b) the
approval by the Company of, or the consent by the Company to, any consolidation
or merger to which any Restricted Subsidiary (as defined in the Original
Indenture) or any other subsidiary or affiliate of the Company may be a party or
any conveyance, transfer or lease by any Subsidiary (as defined in the Original
Indenture) or any such other subsidiary or affiliate of any of its assets.
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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 PIES that it will duly and punctually perform
its obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The
City of New York an office or agency where Certificates may be:
(1) presented or surrendered for acquisition of shares of
Common Stock upon settlement of the Purchase Contracts on the Purchase
Contract Settlement Date or Early Settlement and for transfer of
Collateral upon occurrence of a Termination Event;
(2) surrendered for registration of transfer or exchange, for
a Collateral Substitution or re-establishment of a Corporate PIES; and
and where notices and demands to or upon the Company in respect of the PIES and
this Agreement may be served. The Company will give prompt written notice to the
Purchase Contract Agent of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Purchase Contract Agent
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office, and the Company hereby
appoints the Purchase Contract Agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where Certificates may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will
give prompt written notice to the Purchase Contract Agent of any such
designation or rescission and of any change in the location of any such other
office or agency. The Company hereby designates as the place of payment for the
PIES the Corporate Trust Office and appoints the Purchase Contract Agent at its
Corporate Trust Office as paying agent in such city.
Section 10.3. Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase Contract
Settlement Date reserve and keep available, free from preemptive rights, out of
its authorized but unissued shares of Common Stock the maximum number of shares
of Common Stock issuable against tender of payment in respect of all Purchase
Contracts constituting a part of the PIES evidenced by Outstanding Certificates.
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Section 10.4. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which
will be issued against tender of payment in respect of Purchase Contracts
constituting a part of the Outstanding PIES will, upon issuance as contemplated
herein, be duly authorized, validly issued, fully paid and nonassessable.
Section 10.5. Statements of Officers of the Company as to Default.
The Company will deliver to the Purchase Contract Agent,
within 120 days after the end of each fiscal year of the Company (which as of
the date hereof is December 31) ending after the date hereof, an Officers'
Certificate (one of the signers of which shall be the principal executive
officer, principal financial officer or principal accounting officer of the
Company), stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions hereof, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
Section 10.6. ERISA.
Each Holder from time to time of the Corporate PIES which is a
Plan hereby represents that its acquisition of the Corporate PIES and the
holding of the same satisfies the applicable fiduciary requirements of ERISA and
that it is entitled to exemption relief from the prohibited transaction
provisions of ERISA and the Code in accordance with one or more prohibited
transaction exemptions or otherwise will not result in a nonexempt prohibited
transaction.
72
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
SIERRA PACIFIC RESOURCES
By: _______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Purchase Contract Agent
By: _______________________________
Name:
Title:
EXHIBIT A
FORM OF FACE OF CORPORATE PIES CERTIFICATE
[This certificate is a global certificate within the meaning
of the
Purchase Contract Agreement hereinafter referred to and is registered in
the name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This certificate is exchangeable
for certificates registered in the name of a person other than the Depositary or
its nominee only in the limited circumstances described in the
Purchase Contract
Agreement and no transfer of this certificate (other than a transfer of this
certificate as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this certificate is presented by an authorized
representative of the Depositary to Sierra Pacific Resources or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as is requested by an
authorized representative of the Depositary (and any payment hereon is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.](1)
NO.: _______ CUSIP NO. ___________
NUMBER OF CORPORATE PIES: ________
SIERRA PACIFIC RESOURCES
CORPORATE PIES
This Corporate PIES Certificate certifies that [Cede &
Co.](2), or registered assigns, is the registered Holder of the number of
Corporate PIES set forth above [or such other number as set forth in the
Schedule of Increases and Decreases in Global Certificate attached hereto](3).
Each Corporate PIES consists of (i) the rights and obligations of the Holder
under one Purchase Contract with Sierra Pacific Resources, a Nevada corporation
(the "Company"), and (ii) either (a) the beneficial ownership by the Holder of
one ___% Senior Note due 2007 (the "Senior Note") of the Company, having a
principal amount of $50, subject to the Pledge of such Senior Note by such
Holder pursuant to the Pledge Agreement or (b) if the Corporate PIES has been
remarketed by the Remarketing Agent pursuant to the Remarketing Agreement, the
Treasury
--------
(1) Insert in Global Certificates only.
(2) Insert in Global Certificates only.
(3) Insert in Global Certificates only.
Portfolio Interest, subject to the Pledge of such Treasury Portfolio Interest by
such Holder pursuant to the Pledge Agreement.
Pursuant to the Pledge Agreement, the Senior Note or the
Treasury Portfolio Interest, as the case may be, constituting part of each
Corporate PIES evidenced hereby has been pledged to the Collateral Agent, for
the benefit of the Company, to secure the obligations of the Holder under the
Purchase Contract comprising a portion of such Corporate PIES.
Each Purchase Contract evidenced hereby obligates the Holder
of this Corporate PIES Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date, at a price equal to $50 in cash (the "Stated
Amount"), a number of shares of Common Stock equal to the Settlement Rate then
in effect, unless on or prior to the Purchase Contract Settlement Date there
shall have occurred a Termination Event, an Early Settlement or a Merger Early
Settlement with respect to the Corporate PIES of which such Purchase Contract is
a part, all as provided in the
Purchase Contract Agreement and more fully
described on the reverse hereof. The purchase price (the "Purchase Price") for
the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby, if not paid earlier, shall be paid on the Purchase Contract
Settlement Date by application of payment received in respect of the principal
amount with respect to each Pledged Senior Note, pursuant to the Remarketing, or
with respect to the Pledged Treasury Portfolio Interest, as the case may be, in
each case, pledged pursuant to the Pledge Agreement to secure the obligations
under such Purchase Contract of the Holder of the Corporate PIES of which such
Purchase Contract is a part.
The Company shall pay on ________, ________, ________ and
________ of each year (each, a "Payment Date"), commencing __________, 2002, in
respect of each Purchase Contract forming part of a Corporate PIES evidenced
hereby, an amount (the "Purchase Contract Adjustment Payments") equal to (a) if
a Reset Transaction has not occurred, ___% per annum of the Stated Amount or (b)
following the occurrence of a Reset Transaction, if at all, the Adjusted
Purchase Contract Adjustment Payment Rate related to such Reset Transaction
until any such succeeding Reset Transaction shall occur, in either case,
computed on the basis of (i) for any full quarterly period, a 360-day year of
twelve 30-day months, (ii) for any period shorter than a full quarterly period,
a 30-day month and (iii) for periods less than a month, the actual number of
days elapsed per 30-day period. Such Purchase Contract Adjustment Payments shall
be payable to the Person in whose name this Corporate PIES Certificate (or a
Predecessor Corporate PIES Certificate) is registered at the close of business
on the Record Date for such Payment Date.
Interest on the Senior Notes, the beneficial ownership of
which is evidenced hereby until the later of the Remarketing Settlement Date and
the Purchase Contract Settlement Date, as applicable, is payable quarterly in
arrears on each Payment Date. Such interest payments shall be payable to the
Person in whose name this Corporate PIES Certificate (or a Predecessor Corporate
PIES Certificate) is registered at the close of business on the Record Date for
such Payment Date.
Purchase Contract Adjustment Payments and interest payments on
the Senior Notes will be payable at the office of the Purchase Contract Agent in
The City of New York or,
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at the option of the Company, by wire transfer or by check mailed to the address
of the Person entitled thereto as such address appears on the Corporate PIES
Register.
Reference is hereby made to the further provisions set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Purchase Contract Agent by manual signature, this Corporate PIES
Certificate shall not be entitled to any benefit under the
Purchase Contract
Agreement or the Pledge Agreement or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
SIERRA PACIFIC RESOURCES
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase
Contracts evidenced hereby)
By: THE BANK OF NEW YORK,
not individually but solely as
Attorney-in-Fact of such Holder
By:____________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Corporate PIES Certificates referred to in
the within-mentioned
Purchase Contract Agreement.
Dated: By: THE BANK OF NEW YORK,
as Purchase Contract Agent
By:____________________________
Authorized Signatory
A-3
(FORM OF REVERSE OF CORPORATE PIES CERTIFICATE)
1. PURCHASE CONTRACT AGREEMENT; PURCHASE CONTRACTS.
Each Purchase Contract evidenced hereby is being issued
under and governed by a Purchase Contract Agreement, dated as of November __,
2001 (as may be amended, modified or supplemented from time to time pursuant to
the terms thereof, the "Purchase Contract Agreement"), between the Company and
The Bank of New York, as Purchase Contract Agent (including its successors
thereunder, the "Purchase Contract Agent"), to which Purchase Contract Agreement
and amended, modified or supplemental agreements thereto reference is hereby
made for a description of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Purchase Contract Agent,
the Company, and the Holders and of the terms upon which the Corporate PIES
Certificates are, and are to be, executed and delivered. The terms of this
Corporate PIES Certificate include those stated herein and in the Purchase
Contract Agreement. To the extent permitted by applicable law, in the event of
an inconsistency between this Corporate PIES Certificate and the Purchase
Contract Agreement, the terms of the Purchase Contract Agreement shall control.
Capitalized terms used but not defined herein have the meanings ascribed thereto
in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby obligates the Holder
of this Corporate PIES Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price"), a number of shares of Common Stock equal to the Settlement
Rate then in effect unless on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event, an Early Settlement or a Merger
Early Settlement with respect to the PIES of which such Purchase Contract is a
part. The "Settlement Rate" is equal to:
(1) if the Applicable Closing Price (as defined below) per
share is equal to or greater than $______ (the "Threshold Appreciation
Price"), ________ shares of Common Stock per Purchase Contract;
(2) if the Applicable Closing Price per share is less than the
Threshold Appreciation Price but greater than $______ (the "Reference
Price"), the number of shares of Common Stock determined by dividing
the Stated Amount by the Applicable Closing Price; and
(3) if the Applicable Closing Price per share is less than or
equal to the Reference Price, ________ shares of Common Stock per
Purchase Contract,
in each case subject to adjustment as provided in the Purchase Contract
Agreement.
No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, as provided in the Purchase Contract
Agreement.
In accordance with the terms of the Purchase Contract
Agreement, the Holder of this Corporate PIES Certificate shall pay the Purchase
Price for the shares of Common Stock purchased pursuant to each Purchase
Contract evidenced hereby by (i) effecting a Cash Settlement, an Early
Settlement or Merger Early Settlement or (ii) application of payments
A-4
received in respect of the Pledged Treasury Portfolio Interest acquired from the
proceeds of a Remarketing of the related Pledged Senior Notes relating to the
Corporate PIES represented by this Corporate PIES Certificate. As provided in
the Purchase Contract Agreement, upon the occurrence of a Failed Remarketing,
the Collateral Agent shall exercise, for the benefit of the Company, its rights
as a secured creditor with respect to the Pledged Senior Notes related to this
Corporate PIES Certificate and, subject to applicable law, may (i) retain such
Pledged Senior Notes in full satisfaction of the Holders' obligations under the
Purchase Contracts or (ii) sell such Pledged Senior Notes in one or more public
or private sales, the proceeds, if any, of such sale to constitute full
satisfaction of the Holders' obligations under the Purchase Contracts. With
respect to such Pledged Senior Notes which are the subject of a Failed
Remarketing, any accrued and unpaid interest payments on such Pledged Senior
Notes will become payable by the Company to the Holder of this Corporate PIES
Certificate in the manner provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of
Common Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment of the aggregate
purchase price for the shares of Common Stock to be purchased thereunder in the
manner set forth in the Purchase Contract Agreement which payment, in the case
of a Failed Remarketing shall occur by the resale of Pledged Senior Notes or
foreclosure on and retention of such Pledged Senior Notes pursuant to the
Purchase Contract Agreement and the Pledge Agreement.
2. TERMINATION EVENT; EARLY SETTLEMENT; MERGER EARLY
SETTLEMENT.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights of
the Holders to receive, and the obligation of the Company to pay, Purchase
Contract Adjustment Payments, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Purchase
Contract Agent or the Company, if, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon the occurrence of
a Termination Event, the Company shall promptly but in no event later than two
Business Days thereafter give written notice to the Purchase Contract Agent, the
Collateral Agent and the Holders, at their addresses as they appear in the
Corporate PIES Register. Upon the occurrence of a Termination Event, the
Collateral Agent shall release the Senior Notes or Pledged Treasury Portfolio
Interest, as the case may be, from the Pledge in accordance with the provisions
of the Pledge Agreement. A Corporate PIES shall thereafter represent the right
to receive the Senior Note forming a part of such Corporate PIES in accordance
with the terms of the Purchase Contract Agreement and the Pledge Agreement.
Subject to and upon compliance with the provisions of the
Purchase Contract Agreement, at the option of the Holder thereof, Purchase
Contracts relating to PIES may be settled early ("Early Settlement") as provided
in the Purchase Contract Agreement. In order to exercise the right to effect
Early Settlement with respect to any Purchase Contracts evidenced by this
Corporate PIES Certificate, the Holder of this Corporate PIES Certificate shall
deliver this Corporate PIES Certificate to the Purchase Contract Agent at the
Corporate Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early set forth below duly completed and
accompanied by payment in the form of immediately available
A-5
funds payable to the order of the Company in an amount (the "Early Settlement
Amount") equal to:
(1) the product of (A) the Stated Amount times (B) the number
of Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement, PLUS
(2) if such delivery is made with respect to any Purchase
Contracts during the period from the close of business on any Record
Date for any Payment Date to the opening of business on such Payment
Date, an amount equal to the Purchase Contract Adjustment Payments
payable on such Payment Date with respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related PIES, the
Pledged Senior Notes relating to such PIES shall be released from the Pledge as
provided in the Pledge Agreement and the Holder shall be entitled to receive a
number of shares of Common Stock on account of each Purchase Contract forming
part of a Corporate PIES as to which Early Settlement is effected equal to the
Early Settlement Rate. The Early Settlement Rate shall initially be equal to
________ shares of Common Stock per Purchase Contract and shall be adjusted in
the same manner and at the same time as the Settlement Rate is adjusted as
provided in the Purchase Contract Agreement.
3. CREATION OF TREASURY PIES; RECREATION OF CORPORATE PIES.
A holder of a Corporate PIES may substitute for the Pledged
Senior Notes securing its obligation under the related Purchase Contract
Treasury Securities in an aggregate principal amount at maturity equal to the
aggregate principal amount of the Pledged Senior Notes in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement. From and
after such Collateral Substitution, the PIES for which such Pledged Treasury
Securities secures the Holder's obligation under the Purchase Contract shall be
referred to as a "Treasury PIES." A Holder may make such Collateral Substitution
only in integral multiples of 20 Corporate PIES for 20 Treasury PIES. Such
Collateral Substitution may cause the equivalent aggregate principal amount of
this Certificate to be increased or decreased; PROVIDED, HOWEVER, this Corporate
PIES Certificate shall not represent more than _______ Corporate PIES, or if in
the form of a Global Certificate, such other maximum amount as shall at the time
be prescribed by the applicable Depositary. All such adjustments to the
equivalent aggregate principal amount of this Corporate PIES Certificate if a
Global Certificate shall be duly recorded by placing an appropriate notation on
the Schedule as may be attached hereto.
A Holder of Treasury PIES may recreate Corporate PIES by
delivering to the Securities Intermediary Senior Notes with an aggregate
principal amount equal to the aggregate principal amount at maturity of the
Pledged Treasury Securities in exchange for the release of such Pledged Treasury
Securities in accordance with the terms of the Purchase Contract Agreement and
the Pledge Agreement. Holders may make recreate Corporate PIES only in integral
multiples of 20 Corporate PIES.
A-6
4. REGISTERED FORM; DENOMINATION; REGISTRATION, TRANSFER AND
EXCHANGE.
The Corporate PIES Certificates are issuable only in
registered form and only in denominations of a single Corporate PIES and any
integral multiple thereof. The transfer of any Corporate PIES Certificate will
be registered and Corporate PIES Certificates may be exchanged as provided in
the Purchase Contract Agreement. The Corporate PIES Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents permitted by the Purchase Contract Agreement. No service charge shall
be required for any such registration of transfer or exchange, but the Company
and the Purchase Contract Agent may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. A Holder
who elects to substitute a Treasury Security for Senior Notes, thereby creating
Treasury PIES, shall be responsible for any fees or expenses payable in
connection therewith. Except as provided in the Purchase Contract Agreement, for
so long as the Purchase Contract relating to a Corporate PIES remains in effect,
such Corporate PIES shall not be separable into its constituent parts, and the
rights and obligations of the Holder of such Corporate PIES in respect of the
Senior Note or Treasury Portfolio Interest, as the case may be, and Purchase
Contract constituting such Corporate PIES may be transferred and exchanged only
as a Corporate PIES.
Upon registration of transfer of this Corporate PIES
Certificate, the transferee shall be bound (without the necessity of any other
action on the part of such transferee, except as may be required by the Purchase
Contract Agent pursuant to the Purchase Contract Agreement), under the terms of
the Purchase Contract Agreement and the Purchase Contracts evidenced hereby and
the transferor shall be released from the obligations under the Purchase
Contracts evidenced by this Corporate PIES Certificate. The Company covenants
and agrees, and the Holder, by its acceptance hereof, likewise covenants and
agrees, to be bound by the provisions of this paragraph.
The Company, the Purchase Contract Agent and its Affiliates
and any agent of the Company or the Purchase Contract Agent may treat the Person
in whose name this Corporate PIES Certificate is registered as the owner of the
Corporate PIES evidenced hereby for the purpose of receiving payments of
interest payable quarterly on the Senior Notes or Treasury Portfolio Return, as
the case may be, receiving Purchase Contract Adjustment Payments, performance of
the Purchase Contracts and for all other purposes whatsoever, whether or not any
payments in respect thereof be overdue and notwithstanding any notice to the
contrary, and neither the Company, the Purchase Contract Agent nor any such
agent shall be affected by notice to the contrary.
5. PLACE AND METHOD OF PAYMENT.
The Company shall pay, on each Payment Date, the Purchase
Contract Adjustment Payments payable in respect of each Purchase Contract to the
Person in whose name the Corporate PIES Certificate evidencing such Purchase
Contract is registered at the close of business on the Record Date for such
Payment Date. Purchase Contract Adjustment Payments will be payable at the
office of the Purchase Contract Agent in The City of New York or, at the option
of the Company by wire transfer or by check mailed to the address of the Person
entitled thereto at such address as it appears on the Corporate PIES Register.
A-7
6. AUTHORIZATION OF PURCHASE CONTRACT AGENT.
The Holder of this Corporate PIES Certificate, by its
acceptance hereof, authorizes the Purchase Contract Agent to enter into and
perform the related Purchase Contracts forming part of the Corporate PIES
evidenced hereby on its behalf as its attorney-in-fact, expressly withholds any
consent to the assumption (i.e., affirmance) of the Purchase Contracts by the
Company or its trustee in the event that the Company becomes the subject of a
case under the Bankruptcy Code, agrees to be bound by the terms and provisions
thereof, covenants and agrees to perform its obligations under such Purchase
Contracts, consents to the provisions of the Purchase Contract Agreement,
authorizes the Purchase Contract Agent to enter into and perform the Purchase
Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Senior Notes or Treasury
Portfolio Interest, as the case may be, relating to this Corporate PIES
Certificate pursuant to the Pledge Agreement. The Holder further covenants and
agrees that, to the extent and in the manner provided in the Purchase Contract
Agreement and the Pledge Agreement, but subject to the terms thereof, payments
in respect of the aggregate principal amount of the Pledged Senior Notes or
Pledged Treasury Portfolio Interest, as the case may be, shall be paid on the
Purchase Contract Settlement Date by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Purchase Contract and such
Holder shall acquire no right, title or interest in such payments.
7. AMENDMENT.
The provisions of the Purchase Contract Agreement and this
Corporate PIES Certificate may be amended only as provided in the Purchase
Contract Agreement.
8. VOTING RIGHTS.
The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of Common
Stock. Upon settlement of the Purchase Contracts, the Holder will be entitled to
all of the rights of a holder of shares of Common Stock, including, without
limitation, the right to vote and receive dividends and other payments and to
consent and receive notice as a shareholder in respect of the meetings of
shareholders and for the election of directors of the Company and for all other
matters, and all other rights whatsoever as a shareholder of the Company. Under
the terms of the Pledge Agreement, the Purchase Contract Agent will be entitled
to exercise the voting and any other consensual rights pertaining to the Pledged
Senior Notes upon behalf of and upon receipt of instructions from the beneficial
owners of such Pledged Senior Notes. Upon receipt of notice of any meeting at
which holders of Senior Notes are entitled to vote or upon the solicitation of
consents, waivers or proxies of holders of Senior Notes, the Purchase Contract
Agent shall, as soon as practicable thereafter, mail to the Corporate PIES
Holders a notice:
(1) containing such information as is contained in the notice
or solicitation;
(2) stating that each Corporate PIES Holder on the record date
set by the Purchase Contract Agent therefor (which, to the extent
possible, shall be the same date as the record date for determining the
holders of Senior Notes entitled to vote) shall be
A-8
entitled to instruct the Purchase Contract Agent as to the exercise of
the voting rights pertaining to the Senior Notes constituting a part of
such Holder's Corporate PIES; and
(3) stating the manner in which such instructions may be
given.
Upon the written request of the Corporate PIES Holders on such record date, the
Purchase Contract Agent shall endeavor insofar as practicable to vote or cause
to be voted, in accordance with the instructions set forth in such requests, the
maximum aggregate principal amount of Senior Notes as to which any particular
voting instructions are received. In the absence of specific instructions from
the Holder of a Corporate PIES, the Purchase Contract Agent shall abstain from
voting the Senior Notes evidenced by such Corporate PIES.
9. SEVERABILITY.
If any provision in this Corporate PIES and the Senior Notes
is invalid or unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, (i) the other provisions of Corporate PIES shall remain in
full force and effect in such jurisdiction and shall be liberally construed in
order to carry out the intentions of the parties hereto as nearly as may be
possible and (ii) the invalidity or unenforceability of any provision of this
Corporate PIES in any jurisdiction shall not in any way affect the validity or
enforceability of such provision in any other jurisdiction.
10. GOVERNING LAW.
THIS CORPORATE PIES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11. JURISDICTION; VENUE.
The Company hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York and of
any New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to the Indenture and the Senior Notes or
the transactions contemplated hereby. The Company hereto irrevocably waives, to
the fullest extent permitted by applicable law, any objection which they may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
12. COPIES OF PURCHASE CONTRACT AGREEMENT.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Purchase Contract Agen at its address set forth
in Section 1.5 of the Purchase Contract Agreement.
A-9
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - As tenants in common
TEN ENT - As tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - (cust) Custodian (minor) ____________________
Under Uniform Gifts to Minors Act of _______________
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
(INSERT NAME OF ASSIGNEE)
________________________________________________________________________________
(INSERT SOCIAL SECURITY OR TAXPAYER I.D. OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(INSERT ADDRESS INCLUDING ZIP CODE OF ASSIGNEE)
the within Corporate PIES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ________________________________________
attorney to transfer said Corporate PIES Certificates on the books of Sierra
Pacific Resources with full power of substitution in the premises.
Dated: ___________________ __________________________________
Signature
NOTICE: The signature to this
assignment must correspond with
the name as it appears upon the
face of the within Corporate PIES
Certificates in every particular,
without alteration or enlargement
or any change whatsoever.
Signature Guarantee: ___________________________________
A-10
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon settlement on the Purchase Contract Settlement
Date of the Purchase Contracts relating to the number of Corporate PIES
evidenced by this Corporate PIES Certificate be registered in the name of, and
delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned agrees to pay any transfer
tax payable incident thereto.
Dated: _______________________ _____________________________________
Signature
Signature Guarantee:
(if assigned to another person)
REGISTERED HOLDER
Please print name and address of Registered Holder:
________________________________________________________________________________
(INSERT NAME)
________________________________________________________________________________
(INSERT ADDRESS)
________________________________________________________________________________
________________________________________________________________________________
(INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER, IF ANY)
-------------------------------------
If shares are to be registered in the name of and delivered to a Person other
than the Holder, please (i) print such Person's name and address and (ii)
provide a guarantee of your signature:
________________________________________________________________________________
(INSERT NAME)
________________________________________________________________________________
(INSERT ADDRESS)
________________________________________________________________________________
________________________________________________________________________________
(INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER, IF ANY)
A-11
ELECTION TO SETTLE EARLY
The undersigned Holder of this Corporate PIES Certificate
hereby irrevocably exercises the option to effect Early Settlement in accordance
with the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts relating to the number of Corporate PIES evidenced by this Corporate
PIES Certificate specified below. The undersigned Holder directs that a
certificate for shares of Common Stock deliverable upon such Early Settlement be
registered in the name of, and delivered, together with a check in payment for
any fractional share and any Corporate PIES Certificate representing any
Corporate PIES evidenced hereby as to which Early Settlement of the related
Purchase Contracts is not effected, to the undersigned at the address indicated
below unless a different name and address have been indicated below. Pledged
Senior Notes deliverable upon such Early Settlement will be transferred in
accordance with the transfer instructions set forth below. If shares are to be
registered in the name of a Person other than the undersigned, the undersigned
agrees to pay any transfer tax payable incident thereto.
__________________________________
Signature
Dated: ________________________________
Signature Guarantee: _____________________________
Number of PIES evidenced hereby as to which Early Settlement
of the related Purchase Contracts is being elected:
REGISTERED HOLDER
Please print name and address of Registered Holder:
________________________________________________________________________________
(INSERT NAME)
________________________________________________________________________________
(INSERT ADDRESS)
________________________________________________________________________________
If shares of Common Stock or Corporate PIES Certificates are to be registered in
the name of and delivered to, and Pledged Senior Notes are to be transferred to,
a Person other than the Holder, please print such Person's name and address:
________________________________________________________________________________
(INSERT NAME)
________________________________________________________________________________
(INSERT ADDRESS)
________________________________________________________________________________
(INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER, IF ANY)
Transfer Instructions for Pledged Senior Notes Transferable Upon Early
Settlement:
________________________________________________________________________________
A-12
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global
Certificate have been made:
--------------------------------------------------------------------------------------------------------------------------
Number of Corporate PIES
Amount of decrease in Amount of increase in evidenced by this Signature of
Number of Corporate Number of Corporate Global Certificate authorized signatory
PIES evidenced by the PIES evidenced by the following such of Purchase Contract
Date Global Certificate Global Certificate decrease or increase Agent
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A-13
EXHIBIT B
FORM OF FACE OF TREASURY PIES CERTIFICATE
[This certificate is a global certificate within the meaning
of the Purchase Contract Agreement hereinafter referred to and is registered in
the name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This certificate is exchangeable
for certificates registered in the name of a person other than the Depositary or
its nominee only in the limited circumstances described in the Purchase Contract
Agreement and no transfer of this certificate (other than a transfer of this
certificate as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this certificate is presented by an authorized
representative of the Depositary to Sierra Pacific Resources or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as is requested by an
authorized representative of the Depositary (and any payment hereon is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.](1)
NO.: _______ CUSIP NO. ___________
NUMBER OF TREASURY PIES: ________
SIERRA PACIFIC RESOURCES
TREASURY PIES
This Treasury PIES Certificate certifies that [Cede & Co.](2),
or registered assigns, is the registered Holder of the number of Treasury PIES
set forth above [or such other number as set forth in the Schedule of Increases
and Decreases in Global Certificate attached hereto](3). Each Treasury PIES
consists of (i) the rights and obligations of the Holder under one Purchase
Contract with Sierra Pacific Resources, a Nevada corporation (the "Company") and
(ii) a 1/20 undivided beneficial ownership interest of a Treasury Security
having a principal amount at maturity equal to $1,000 and maturing on or prior
to ___________, 2005.
Pursuant to the Pledge Agreement, the Treasury Securities
constituting part of each Treasury PIES evidenced hereby have been pledged to
the Collateral Agent, for the benefit of the Company, to secure the obligations
of the Holder under the Purchase Contract comprising a portion of such Treasury
PIES.
--------
(1) Insert in Global Certificates only.
(2) Insert in Global Certificates only.
(3) Insert in Global Certificates only.
Each Purchase Contract evidenced hereby obligates the Holder
of this Treasury PIES Certificate to purchase, and the Company, to sell, on the
Purchase Contract Settlement Date, at a price equal to $50 in cash (the "Stated
Amount"), a number of shares of Common Stock equal to the Settlement Rate then
in effect, unless on or prior to the Purchase Contract Settlement Date there
shall have occurred a Termination Event or an Early Settlement or Merger Early
Settlement with respect to the Treasury PIES of which such Purchase Contract is
a part, all as provided in the Purchase Contract Agreement and more fully
described on the reverse hereof. The purchase price (the "Purchase Price") for
the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby, if not paid earlier, shall be paid on the Purchase Contract
Settlement Date by application of the proceeds from the Treasury Securities at
maturity pledged pursuant to the Pledge Agreement to secure the obligations
under such Purchase Contract of the Holder of the Treasury PIES of which such
Purchase Contract is a part.
The Company shall pay on ________, ________, ________ and
________ of each year (each, a "Payment Date"), commencing __________, 2002, in
respect of each Purchase Contract forming part of Treasury PIES evidenced
hereby, an amount (the "Purchase Contract Adjustment Payments") equal to (a) if
a Reset Transaction has not occurred, ___% per annum of the Stated Amount or (b)
following the occurrence of a Reset Transaction, if at all, the Adjusted
Purchase Contract Adjustment Payment Rate related to such Reset Transaction
until any such succeeding Reset Transaction shall occur, in either case,
computed on the basis of (i) for any full quarterly period, a 360-day year of
twelve 30-day months, (ii) for any period shorter than a full quarterly period,
a 30-day month and (iii) for periods less than a month, the actual number of
days elapsed per 30-day period). Such Purchase Contract Adjustment Payments
shall be payable to the Person in whose name this Treasury PIES Certificate (or
a Predecessor Treasury PIES Certificate) is registered at the close of business
on the Record Date for such Payment Date.
Purchase Contract Adjustment Payments will be payable at the
office of the Purchase Contract Agent in The City of New York or, at the option
of the Company, by wire transfer or by check mailed to the address of the Person
entitled thereto as such address appears on the Treasury or PIES Register.
Reference is hereby made to the further provisions set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Purchase Contract Agent by manual signature, this Treasury PIES
Certificate shall not be entitled to any benefit under the Purchase Contract
Agreement or the Pledge Agreement or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
SIERRA PACIFIC RESOURCES
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations of
such Holder under the Purchase Contracts
evidenced hereby)
By: THE BANK OF NEW YORK,
not individually but solely as
Attorney-in-Fact of such Holder
By: _________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Treasury PIES Certificates referred to in
the within-mentioned Purchase Contract Agreement.
Dated: By: THE BANK OF NEW YORK,
as Purchase Contract Agent
By:___________________________
Authorized Officer
B-3
(FORM OF REVERSE OF TREASURY PIES CERTIFICATE)
1. PURCHASE CONTRACT AGREEMENT; PURCHASE CONTRACTS.
Each Purchase Contract evidenced hereby is being issued under
and governed by a Purchase Contract Agreement, dated as of November __, 2001 (as
may be amended, modified or supplemented from time to time pursuant to the terms
thereof, the "Purchase Contract Agreement") between the Company and The Bank of
New York, as Purchase Contract Agent (including its successors thereunder, the
"Purchase Contract Agent"), to which the Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Purchase Contract Agent, the Company and the Holders and of
the terms upon which the Treasury PIES Certificates are, and are to be, executed
and delivered. The terms of this Treasury PIES Certificate include those stated
herein and in the Purchase Contract Agreement. To the extent permitted by
applicable law, in the event of an inconsistency between this Treasury PIES
Certificate and the Purchase Contract Agreement, the terms of the Purchase
Contract Agreement shall control. Capitalized terms used but not defined herein
have the meanings ascribed thereto in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby obligates the Holder
of this Treasury PIES Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date at a price equal to the Stated Amount (the
"Purchase Price") a number of shares of Common Stock equal to the Settlement
Rate then in effect unless on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event, an Early Settlement or a Merger
Early Settlement with respect to the PIES of which such Purchase Contract is a
part. The "Settlement Rate" is equal to:
(1) if the Applicable Closing Price (as defined below) per
share is equal to or greater than $______ (the "Threshold Appreciation
Price"), ________ shares of Common Stock per Purchase Contract;
(2) if the Applicable Closing Price per share is less than the
Threshold Appreciation Price but greater than $______ (the "Reference
Price"), the number of shares of Common Stock determined by dividing
the Stated Amount by the Applicable Closing Price; and
(3) if the Applicable Closing Price per share is less than or
equal to the Reference Price, then ________ shares of Common Stock per
Purchase Contract;
in each case subject to adjustment as provided in the Purchase Contract
Agreement.
No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, as provided in the Purchase Contract
Agreement.
In accordance with the terms of the Purchase Contract
Agreement, the Holder of this Treasury PIES Certificate shall pay the Purchase
Price for the shares of Common Stock purchased pursuant to each Purchase
Contract evidenced hereby by (i) effecting a Cash Settlement, an Early
Settlement or Merger Early Settlement or (ii) application of payments
B-4
received in respect of the Pledged Treasury Securities relating to the Treasury
PIES represented by this Treasury PIES Certificate.
The Company shall not be obligated to issue any shares of
Common Stock in respect of a Purchase Contract or deliver any certificates
therefor to the Holder unless it shall have received payment of the aggregate
purchase price for the shares of Common Stock to be purchased thereunder in the
manner herein set forth in the Purchase Contract Agreement.
2. TERMINATION EVENT; EARLY SETTLEMENT; MERGER EARLY
SETTLEMENT.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights of
the Holders to receive, and the obligation of the Company to pay, Purchase
Contract Adjustment Payments, shall immediately and automatically terminate,
without the necessity of any notice or action by any Holder, the Purchase
Contract Agent or the Company, if, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon the occurrence of
a Termination Event, the Company shall promptly but in no event later than two
Business Days thereafter give written notice to the Purchase Contract Agent, the
Collateral Agent and the Holders, at their addresses as they appear in the
Treasury PIES Register. Upon the occurrence of a Termination Event, the
Collateral Agent shall release the Treasury Securities from the Pledge in
accordance with the provisions of the Pledge Agreement. A Treasury PIES shall
thereafter represent the right to receive the interest in the Treasury Security
forming a part of such Treasury PIES, in accordance with the terms of the
Purchase Contract Agreement and the Pledge Agreement.
Subject to and upon compliance with the provisions of the
Purchase Contract Agreement, at the option of the Holder thereof, Purchase
Contracts relating to PIES may be settled early ("Early Settlement") as provided
in the Purchase Contract Agreement. In order to exercise the right to effect
Early Settlement with respect to any Purchase Contracts evidenced by this
Treasury PIES the Holder of this Treasury PIES Certificate shall deliver this
Treasury PIES Certificate to the Purchase Contract Agent at the Corporate Trust
Office duly endorsed for transfer to the Company or in blank with the form of
Election to Settle Early set forth below duly completed and accompanied by
payment in the form of immediately available funds payable to the order of the
Company in an amount (the "Early Settlement Amount") equal to:
(1) the product of (A) the Stated Amount times (B) the number
of Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement, PLUS
(2) if such delivery is made with respect to any Purchase
Contracts during the period from the close of business on any Record
Date for any Payment Date to the opening of business on such Payment
Date, an amount equal to the Purchase Contract Adjustment Payments
payable on such Payment Date with respect to such Purchase Contracts.
Upon Early Settlement of Purchase Contracts by a Holder of the related PIES, the
Pledged Treasury Securities relating to such PIES shall be released from the
Pledge as provided in the Pledge Agreement and the Holder shall be entitled to
receive a number of shares of Common Stock on account of each Purchase Contract
forming part of a Treasury PIES as to which Early Settlement is effected equal
to the Early Settlement Rate. The Early Settlement Rate shall initially be equal
to ______ shares of Common Stock per Purchase Contract and shall be
B-5
adjusted in the same manner and at the same time as the Settlement Rate is
adjusted as provided in the Purchase Contract Agreement.
3. RECREATION OF CORPORATE PIES.
A Holder of Treasury PIES may recreate Corporate PIES by
delivering to the Collateral Agent Senior Notes with a principal amount equal to
the aggregate principal amount of maturity of the Pledged Treasury Securities in
exchange for the release of such Pledged Treasury Securities in accordance with
the terms of the Purchase Contract Agreement and the Pledge Agreement. From and
after such Collateral Substitution, the Holder's PIES shall be referred to as a
"Corporate PIES." Such Collateral Substitution may cause the equivalent
aggregate principal amount of this Certificate to be increased or decreased;
PROVIDED, HOWEVER, this Treasury PIES Certificate shall not represent more than
_____ Treasury PIES, or if in the form of a Global Certificate, such other
maximum amount as shall at the time be prescribed by the applicable Depositary.
All such adjustments to the equivalent aggregate principal amount of this
Treasury PIES Certificate if a Global Certificate, shall be duly recorded, by
placing an appropriate notation on the Schedule as may be attached hereto. A
Holder who elects to substitute Senior Notes for Treasury Securities, thereby
recreating Corporate PIES, shall be responsible for any fees or expenses
associated therewith.
4. REGISTERED FORM; DENOMINATIONS; REGISTRATION, TRANSFER AND
EXCHANGE.
The Treasury PIES Certificates are issuable only in registered
form and only in denominations of a single Treasury PIES and any integral
multiple thereof. The transfer of any Treasury PIES Certificate will be
registered and Treasury PIES Certificates may be exchanged as provided in the
Purchase Contract Agreement. The Treasury PIES Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company and
the Purchase Contract Agent may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. A Holder who
elects to substitute Senior Notes for a Treasury Security, thereby creating
Corporate PIES, shall be responsible for any fees or expenses payable in
connection therewith. Except as provided in the Purchase Contract Agreement, for
so long as the Purchase Contract relating to a Treasury PIES remains in effect,
such Treasury PIES shall not be separable into its constituent parts, and the
rights and obligations of the Holder of such Treasury PIES in respect of the
Treasury Security and the Purchase Contract constituting such Treasury PIES may
be transferred and exchanged only as a Treasury PIES.
Upon registration of transfer of this Treasury PIES
Certificate, the transferee shall be bound (without the necessity of any other
action on the part of such transferee, except as may be required by the Purchase
Contract Agent pursuant to the Purchase Contract Agreement), under the terms of
the Purchase Contract Agreement and the Purchase Contracts evidenced hereby and
the transferor shall be released from the obligations under the Purchase
Contracts evidenced by this Treasury PIES Certificate. The Company covenants and
agrees, and the Holder, by its acceptance hereof, likewise covenants and agrees,
to be bound by the provisions of this paragraph. The Company, the Purchase
Contract Agent and its Affiliates and any agent of the Company or the Purchase
Contract Agent may treat the Person in whose name this Treasury PIES Certificate
is registered as the owner of the Treasury PIES evidenced hereby for the purpose
of receiving payments of Purchase Contract Adjustment Payments, performance of
the
B-6
Purchase Contracts and for all other purposes whatsoever, whether or not any
payments in respect thereof be overdue and notwithstanding any notice to the
contrary, and neither the Company, the Purchase Contract Agent nor any such
agent shall be affected by notice to the contrary.]
5. PLACE AND METHOD OF PAYMENT.
The Company shall pay, on each Payment Date, the Purchase
Contract Adjustment Payments payable in respect of each Purchase Contract to the
Person in whose name the Treasury PIES Certificate evidencing such Purchase
Contract is registered at the close of business on the Record Date for such
Payment Date. Purchase Contract Adjustment Payments will be payable at the
office of the Purchase Contract Agent in The City of New York or, at the option
of the Company, by wire transfer or by check mailed to the address of the Person
entitled thereto at such address as it appears on the Treasury PIES Register.
6. AUTHORIZATION OF PURCHASE CONTRACT AGENT.
The Holder of this Treasury PIES Certificate, by its
acceptance hereof, authorizes the Purchase Contract Agent to enter into and
perform the related Purchase Contracts forming part of the Treasury PIES
evidenced hereby on its behalf as its attorney-in-fact, expressly withholds any
consent to the assumption (i.e., affirmance) of the Purchase Contracts by the
Company or its trustee in the event that the Company becomes the subject of a
case under the Bankruptcy Code, agrees to be bound by the terms and provisions
thereof, covenants and agrees to perform its obligations under such Purchase
Contracts, consents to the provisions of the Purchase Contract Agreement,
authorizes the Purchase Contract Agent to enter into and perform the Purchase
Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Treasury Securities relating
to this Treasury PIES Certificate pursuant to the Pledge Agreement. The Holder
further covenants and agrees, that, to the extent and in the manner provided in
the Purchase Contract Agreement and the Pledge Agreement, but subject to the
terms thereof, payments in respect of the aggregate principal amount of the
Pledged Treasury Securities at maturity shall be paid on the Purchase Contract
Settlement Date by the Collateral Agent to the Company in satisfaction of such
Holder's obligations under such Purchase Contract and such Holder shall acquire
no right, title or interest in such payments.
7. AMENDMENT.
The provisions of the Purchase Contract Agreement and this
Treasury PIES Certificate may be amended only as provided in the Purchase
Contract Agreement.
8. VOTING RIGHTS.
The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of Common
Stock. Upon settlement of the Purchase Contracts, the Holder will be entitled to
all of the rights of a holder of shares of Common Stock, including, without
limitation, the right to vote and receive dividends and other payments and to
consent and receive notice as a shareholder in respect of the meetings of
shareholders and for the election of directors of the Company and for all other
matters, and all other rights whatsoever as a shareholder of the Company.
B-7
9. SEVERABILITY.
If any provision in this Treasury PIES is invalid or
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions of Treasury PIES shall remain in full force and effect
in such jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision of this Treasury PIES in any
jurisdiction shall not in any way affect the validity or enforceability of such
provision in any other jurisdiction.
10. GOVERNING LAW.
THIS TREASURY PIES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11. JURISDICTION; VENUE.
The Company hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York and of
any New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to the Indenture and the Senior Notes or
the transactions contemplated hereby. The Company hereto irrevocably waives, to
the fullest extent permitted by applicable law, any objection which they may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
12. COPIES OF PURCHASE CONTRACT AGREEMENT.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Purchase Contract Agent at its address set
forth in Section 1.5 of the Purchase Contract Agreement.
B-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
UNIF GIFT MIN ACT - (cust) Custodian for (minor) ________________
Under Uniform Gifts to Minors Act of_____________
(State)
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
(INSERT NAME OF ASSIGNEE)
________________________________________________________________________________
(INSERT SOCIAL SECURITY OR TAXPAYER I.D. OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE)
________________________________________________________________________________
(INSERT ADDRESS INCLUDING ZIP CODE OF ASSIGNEE)
the within Treasury PIES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ________________________________________
attorney to transfer said Treasury PIES Certificates on the books of Sierra
Pacific Resources with full power of substitution in the premises.
Dated: ___________________ __________________________________
Signature
NOTICE: The signature to this
assignment must correspond with
the name as it appears upon the
face of the within Treasury PIES
Certificates in every particular,
without alteration or enlargement
or any change whatsoever.
Signature Guarantee: ___________________________________
B-9
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts relating to the number of Treasury
PIES evidenced by this Treasury PIES Certificate be registered in the name of,
and delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned agrees to pay any transfer
tax payable incident thereto.
Dated: _______________________ __________________________________
Signature
Signature Guarantee: _____________
(if assigned to another person)
REGISTERED HOLDER
Please print name and address of Registered Holder:
________________________________________________________________________________
(INSERT NAME)
________________________________________________________________________________
(INSERT ADDRESS)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER, IF ANY)
----------------------------------
If shares are to be registered in the name of and delivered to a Person other
than the Holder, please (i) print such Person's name and address and (ii)
provide a guarantee of your signature:
________________________________________________________________________________
(INSERT NAME
________________________________________________________________________________
(INSERT ADDRESS)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER, IF ANY)
B-10
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury PIES Certificate
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts relating to the number of Treasury PIES evidenced by this Treasury
PIES Certificate specified below. The undersigned Holder directs that a
certificate for shares of Common Stock deliverable upon such Early Settlement be
registered in the name of, and delivered, together with a check in payment for
any fractional share and any Treasury PIES Certificate representing any Treasury
PIES evidenced hereby as to which Early Settlement of the related Purchase
Contracts is not effected, to the undersigned at the address indicated below
unless a different name and address have been indicated below. Pledged Treasury
Securities deliverable upon such Early Settlement will be transferred in
accordance with the transfer instructions set forth below. If shares are to be
registered in the name of a Person other than the undersigned, the undersigned
agrees to pay any transfer tax payable incident thereto.
________________________________
Signature
Dated: ___________________________
Signature Guarantee: _______________
Number of PIES evidenced hereby as to which Early Settlement
of the related Purchase Contracts is being elected:
REGISTERED HOLDER
Please print name and address of Registered Holder:
________________________________________________________________________________
(INSERT NAME)
________________________________________________________________________________
(INSERT ADDRESS)
________________________________________________________________________________
If shares of Common Stock or Treasury PIES Certificates are to be registered in
the name of and delivered to, and Pledged Treasury Securities are to be
transferred to, a Person other than the Holder, please print such Person's name
and address:
________________________________________________________________________________
(INSERT NAME)
________________________________________________________________________________
(INSERT ADDRESS)
________________________________________________________________________________
(INSERT SOCIAL SECURITY OR OTHER TAXPAYER IDENTIFICATION NUMBER, IF ANY)
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement:
________________________________________________________________________________
B-11
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have
been made:
--------------------------------------------------------------------------------------------------------------------------
Number of Treasury PIES
Amount of decrease in Amount of increase in evidenced by this
Number of Treasury Number of Treasury Global Certificate Signature of authorized
PIES evidenced by the PIES evidenced by the following such signatory of Purchase
Date Global Certificate Global Certificate decrease or increase Contract Agent
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B-12
EXHIBIT C
NOTICE FROM HOLDER TO PURCHASE CONTRACT AGENT
(Election for Creation of Treasury PIES or Recreation of Corporate PIES)
The Bank of New York, as Purchase Contract Agent
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: [Corporate PIES] [Treasury PIES] of Sierra Pacific
Resources
--------------------------------------------------
Reference is made to the Purchase Contract Agreement, dated as
of November __, 2001 (the "Purchase Contract Agreement"), between Sierra Pacific
Resources (the "Company") and you, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts. All capitalized
terms that are used but not defined herein have the meanings assigned to them in
the Purchase Contract Agreement.
The undersigned Holder hereby notifies you in accordance with
Section [3.13] [3.14] of the Purchase Contract Agreement, that such Holder has
elected to [create][recreate] ________ [Treasury PIES] [Corporate PIES] by
substitution of $__________ aggregate principal amount of [Treasury Securities]
[Senior Notes] for the [Pledged Senior Notes] [Pledged Treasury Securities] held
in the Collateral Account, in accordance with the Pledge Agreement.
The undersigned Holder hereby acknowledges that such Holder
may [create Treasury PIES] [recreate Corporate PIES] only in integral multiples
of 20 [Corporate PIES] [Treasury PIES].
____________________________________
Name of Holder
____________________________________
Signature
Signature Guarantee:___________________
Date: _______________________
Please print name and address of Registered Holder:
___________________________________________________________
Name
___________________________________________________________
Social Security or other Taxpayer Identification Number, if any
___________________________________________________________
___________________________________________________________
Address
EXHIBIT D
INSTRUCTION FROM HOLDER
TO PURCHASE CONTRACT AGENT
The Bank of New York, as Purchase Contract Agent
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: [Corporate PIES] [Treasury PIES] of Sierra Pacific
Resources
--------------------------------------------------
Reference is made to the Purchase Contract Agreement, dated as
of November __, 2001 (the "Purchase Contract Agreement"), between Sierra Pacific
Resources (the "Company") and you, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts. All capitalized
terms that are used but not defined herein have the meanings assigned to them in
the Purchase Contract Agreement.
The undersigned Holder hereby notifies you that in accordance
with Section [3.13] [3.14] of the Purchase Contract Agreement it has transferred
to ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Securities Intermediary, for credit to
the Collateral Account, $______ aggregate principal amount of [Treasury
Securities] [Senior Notes] in exchange for the [Pledged Senior Notes] [Pledged
Treasury Securities] held in the Collateral Account, in accordance with the
Purchase Contract Agreement and the Pledge Agreement. The undersigned Holder has
paid all applicable fees relating to such exchange. The undersigned Holder
hereby requests that you to instruct the Collateral Agent to release to you on
behalf of the undersigned Holder the equivalent principal amount of [Pledged
Senior Notes] [Pledged Treasury Securities] related to the above-captioned
[Corporate PIES] [Treasury PIES].
____________________________________
Name of Holder
____________________________________
Signature
Signature Guarantee:___________________
Date: _______________________
Please print name and address of Registered Holder:
___________________________________________________________
Name
___________________________________________________________
Social Security or other Taxpayer Identification Number, if any
___________________________________________________________
___________________________________________________________
Address
EXHIBIT E
NOTICE FROM PURCHASE CONTRACT AGENT TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
________________________________
________________________________
Attention:
Fax: __________
Re: [Corporate PIES] [Treasury PIES] of Sierra Pacific
Resources
--------------------------------------------------
Reference is made to the Purchase Contract Agreement, dated as
of November __, 2001 (the "Purchase Contract Agreement"), between Sierra Pacific
Resources (the "Company") and you, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts. All capitalized
terms that are used but not defined herein have the meanings assigned to them in
the Purchase Contract Agreement.
We hereby notify you that a Termination Event has occurred and
that [the Senior Notes][Treasury Portfolio Interest][the Treasury Securities]
relating to your ownership interest in _____ [Corporate PIES][Treasury Portfolio
Interest][Treasury PIES] have been released and are being held by us for your
account pending receipt of transfer instructions with respect to such [Senior
Notes][Treasury Portfolio Interest][Treasury Securities] (the "Released
Securities").
Pursuant to Section 3.15 of the Purchase Contract Agreement,
we hereby request written transfer instructions with respect to the Released
Securities. Upon receipt of your instructions and upon transfer to us of your
[Corporate PIES][Treasury PIES] effected through book-entry transfer or by
delivery to us of your [Corporate PIES Certificate][Treasury PIES Certificate],
we shall transfer the Released Securities by book-entry transfer, or other
appropriate procedures, in accordance with your instructions. In the event you
fail to effect such transfer or delivery, the Released Securities and any
interest thereon, shall be held in our name or in the name of our nominee in
trust for your benefit, until the earlier of such time as (A) such [Corporate
PIES][Treasury PIES] are transferred or your [Corporate PIES Certificate]
[Treasury PIES Certificate] is surrendered or satisfactory evidence is
provided that your [Corporate PIES Certificate][Treasury PIES Certificate] has
been destroyed, lost or stolen, together with any indemnification that we or
the Company may require and (B) the expiration of the time period specified
in the abandoned property laws of the relevant State.
By: THE BANK OF NEW YORK,
as Purchase Contract Agent
________________________________
Name:
Title:
Date:
EXHIBIT F
NOTICE TO SETTLE BY CASH
The Bank of New York, as Purchase Contract Agent
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: [Corporate PIES] [Treasury PIES] of Sierra Pacific
Resources
--------------------------------------------------
Reference is made to the Purchase Contract Agreement, dated as
of November __, 2001 (the "Purchase Contract Agreement"), between Sierra Pacific
Resources (the "Company") and you, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts. All capitalized
terms that are used but not defined herein have the meanings assigned to them in
the Purchase Contract Agreement.
The undersigned Holder hereby irrevocably notifies you in
accordance with Section 5.8 of the Purchase Contract Agreement, that such Holder
has elected to pay to the Securities Intermediary for deposit in the Collateral
Account, prior to 11:00 a.m. (New York City time), on the [fifth Business
Day][Business Day] immediately preceding the Purchase Contract Settlement Date
(in lawful money of the United States by certified or cashiers' check or wire
transfer, in immediately available funds), $______ as the Purchase Price for the
shares of Common Stock issuable to such Holder by the Company under the related
Purchase Contract on the Purchase Contract Settlement Date. The undersigned
Holder hereby instructs you to notify promptly the Collateral Agent of the
undersigned Holder's election to make such cash settlement with respect to the
Purchase Contracts related to such Holder's [Corporate PIES] [Treasury PIES] and
to release the related [Senior Notes] [Treasury Securities] to such Holder upon
such Cash Settlement.
____________________________________
Signature
Date: _______________________
Signature Guarantee:___________________
Please print name and address of Registered Holder:
___________________________________________________________
Name
___________________________________________________________
Social Security or other Taxpayer Identification Number, if any
___________________________________________________________
___________________________________________________________
Address
EXHIBIT G*
NOTICE FROM PURCHASE CONTRACT AGENT TO REMARKETING AGENT,
COLLATERAL AGENT, TRUSTEE AND THE COMPANY
(Initial, Subsequent or Final Remarketing)
▇▇▇▇▇▇ Brothers Inc., as Remarketing Agent The Bank of New York, as Trustee
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 5 Penn Plaza, 13th Floor
Jersey City, New Jersey 07302] ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ____________________________ Attention: Corporate Trust Administration
Fax: _________________________________ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Collateral Agent Sierra Pacific Resources
Sixth and Marquette ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇-▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attention: ____________________________
Fax (▇▇▇) ▇▇▇-▇▇▇▇ Fax: _________________________________
Re: Corporate PIES of Sierra Pacific Resources
------------------------------------------
Reference is made to the Purchase Contract Agreement, dated as
of November __, 2001 (the "Purchase Contract Agreement"), between Sierra Pacific
Resources (the "Company") and you, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts. All capitalized
terms that are used but not defined herein have the meanings assigned to them in
the Purchase Contract Agreement.
In accordance with Section [5.3(b)] [5.3(c)] of the Purchase
Contract Agreement and based on [(A) the instructions received from Holders of
Corporate PIES prior to 5:00 p.m. (New York City time), on the sixth Business
Day immediately preceding the Purchase Contract Settlement Date and notice from
the Securities Intermediary regarding Cash Settlements received prior to 11:00
a.m. (New York City time), on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date, in each case pursuant to Section 5.8 of the
Purchase Contract Agreement and (B)] the notices regarding the election not to
participate in the Remarketing received from Holders of Corporate PIES who
complied with the procedures for creating Treasury PIES prior to 5:00 p.m. (New
York City time), on the Election Date pursuant to Section 5.3(e) of the Purchase
Contract Agreement, we hereby notify you that $___________ in aggregate
principal amount of Pledged Senior Notes is to be tendered for purchase in the
Remarketing that is scheduled to take place [on one or more occasions in the
period commencing on __________, 2005 up to and including ____________, 2005]
[on ____________, 2005, which is the third Business Day before the Purchase
Contract Settlement Date].
--------
* To be confirmed prior to use of this Form.
By: THE BANK OF NEW YORK,
as Purchase Contract Agent
--------------------------------
Name:
Title:
Date:
G-2