Exhibit 10
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FIRST SUPPLEMENTAL AGREEMENT
AMONG
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCE PLC,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
DISCOVER & CO.,
THE CHASE MANHATTAN BANK,
as Agent, as Book-Entry Unit Depositary
and as Trustee under the Indenture referred to
in the Capital Unit Agreement
AND
THE HOLDERS FROM TIME TO TIME
OF THE CAPITAL UNITS DESCRIBED IN THE CAPITAL UNIT
AGREEMENT
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Dated as of June 1, 1997
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SUPPLEMENTAL TO CAPITAL UNIT AGREEMENT
DATED AS OF [ ]
AMONG ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCE PLC,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ GROUP INC.,
THE CHASE MANHATTAN BANK
(FORMERLY KNOWN AS CHEMICAL BANK)
AND THE HOLDERS FROM TIME TO TIME
OF THE CAPITAL UNITS DESCRIBED IN THE CAPITAL UNIT
AGREEMENT
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FIRST SUPPLEMENTAL AGREEMENT, dated as of June 1, 1997
among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCE PLC, a corporation organized
under the laws of England and Wales ("MS plc"), ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, DISCOVER & CO., a Delaware corporation
(the "Successor Corporation" and hereinafter the
"Corporation"), THE CHASE MANHATTAN BANK (formerly known as
Chemical Bank), as Agent, Book- Entry Unit Depositary and
Trustee under the Indenture referred to in the Capital Unit
Agreement (in its capacity as capital unit agent, the
"Agent," and, in its capacity as book-entry unit depositary,
the "Book- Entry Unit Depositary"), and THE HOLDERS FROM
TIME TO TIME OF THE CAPITAL UNITS DESCRIBED IN THE CAPITAL
UNIT AGREEMENT (the "Holders").
W I T N E S S E T H :
WHEREAS, the MS plc, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group Inc. ("▇▇▇▇▇▇
▇▇▇▇▇▇▇"), the Agent and Book-Entry Unit Depositary and the
Holders are parties to that certain Capital Unit Agreement
dated as of [ ];
WHEREAS, as of May 31, 1997, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ merged with
and into ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co., which continued as the
successor corporation and changed its name to ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co. (the "Merger");
WHEREAS, Section 801 of the Capital Unit Agreement
requires the Successor Corporation to expressly assume the
obligations of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ under the Capital Unit
Agreement in a supplemental agreement satisfactory to the
Agent and Book-Entry Unit Depositary;
WHEREAS, pursuant to and in compliance with Section 802
of the Capital Unit Agreement, the Successor Corporation
shall succeed to and be substituted for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ under
the Capital Unit Agreement as the "Corporation," with the
same effect as if it had been named therein;
WHEREAS, Section 406 of the Capital Unit Agreement
requires the Successor Corporation to execute and deliver to
the Agent an amendment of the Capital Unit Agreement to
provide that each Holder shall have the right and obligation
to purchase on the Purchase Date the number of shares,
property or other assets which a holder of the number of
shares of Preferred Stock to which a Purchase Contract
related was entitled to receive in connection with the
Merger;
WHEREAS, Section 701 of the Capital Unit Agreement
provides that, without the consent of the Holders, each of
MS plc and the Corporation, when authorized by a resolution
of its Board of Directors, and the Agent and Book-Entry Unit
Depositary may enter into agreements supplemental to the
Capital Unit Agreement for the purpose of evidencing the
succession of another Person to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the
assumption by such successor of the covenants of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and supplementing any provisions with respect to
matters arising under the Capital Unit Agreement, subject to
the conditions set forth therein;
WHEREAS, the Corporation desires to modify certain
provisions of the Capital Unit Agreement to reflect a
modification of the officers of the Corporation who are
authorized to execute certain documents in connection with
the issuance of Capital Units;
WHEREAS, the entry into this First Supplemental
Agreement by the parties hereto is in all respects
authorized by the provisions of the Capital Unit Agreement;
and
WHEREAS, all things necessary to make this First
Supplemental Agreement a valid agreement according to its
terms have been done;
NOW, THEREFORE, for and in consideration of the
premises, MS plc, the Corporation, the Agent, the Book-
Entry Unit Depositary mutually covenant and agree for
the equal and proportionate benefit of the respective
Holders appertaining thereto as follows:
ARTICLE 1
SECTION 1.01. Assumption of Obligations by Successor
Corporation. Pursuant to Sections 801 and 802 of the Capital
Unit Agreement, the Successor Corporation does hereby: (i)
expressly assume the obligations of the Guarantor under the
Guarantee and the due and punctual performance and
observance of all of the covenants and conditions of the
Capital Unit Agreement to be performed or observed by ▇▇▇▇▇▇
▇▇▇▇▇▇▇; (ii) agrees to succeed to and be substituted for
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ under the Capital Unit Agreement, with the
same effect as if it had been named therein; and (iii)
represent that it is not in default in the performance of
any such covenant and condition.
SECTION 1.02. Amendment of Section 101. Section 101 of
the Capital Unit Agreement is hereby amended by
(a) deleting the definition of "Issuer Order" or
"Issuer Request" and inserting in lieu thereof the
following:
"'Issuer Order' or 'Issuer Request,' with
respect to MS plc means a written order or
request signed in the name of MS plc by the
Chairman or Vice Chairman of the Board of
Directors, the President, General Counsel,
Chief Financial Officer, Treasurer,
Secretary, Assistant Secretary or any
Managing Director of MS plc and delivered to
the Agent. 'Issuer Order' or 'Issuer
Request' with respect to the Corporation
means a written order or request signed in
the name of the Corporation by any one of the
following: [ ] or any such other
person specifically designated by [any of
such officers or by] the Board of Directors
to execute any such written order or request
and delivered to the Agent.";
(b) deleting the definition of "Officer's Certificate"
and inserting in lieu thereof the following:
"'Officer's Certificate' when used with
respect to MS plc means a certificate signed
by the Chairman or Vice Chairman of the Board
of Directors, the President, General Counsel,
Chief Financial Officer, Treasurer,
Secretary, Assistant Secretary or any
Managing Director of MS plc and delivered to
the Agent. 'Officer's Certificate' when used
with respect to the Corporation means a
certificate signed by any one of the
following: [ ] or
any such other person specifically designated
by [any of such officers or by] the Board of
Directors to execute any such certificate and
delivered to the Agent.";
(c) deleting the definition of "Preferred Stock" and
inserting in lieu thereof the following:
"'Preferred Stock' means the [ ]
Cumulative Preferred Stock, par value $0.01
per share, stated value $200.00 per share, of
the Corporation issuable pursuant to the
Purchase Contracts."
SECTION 1.03. Amendment of Section 401. Section 401 of
the Capital Unit Agreement shall be amended by deleting the
second sentence of the first paragraph and inserting in lieu
thereof the following:
"The Purchase Contracts shall be executed on
behalf of the Corporation by any one of the
following: [
] or any such other person specifically
designated by [any of such officers or by]
the Board of Directors to execute Purchase
Contracts and such Purchase Contracts may,
but need not, be attested."
ARTICLE 2
SECTION 2.01. Rights and Obligations of the Holders as
a Result of the Merger. Pursuant to Section 406 of the
Capital Unit Agreement, the Successor Corporation does
hereby agree that the Holder of each Capital Unit then
Outstanding shall have the right and obligation on the
Purchase Date to purchase the number of shares of Preferred
Stock which a holder of such number of shares of Preferred
Stock to which a Purchase Contract related was entitled to
receive in connection with the Merger.
ARTICLE 3
MISCELLANEOUS
SECTION 3.01. Further Assurances. The Corporation will,
upon request by the Agent and Book-Entry Unit Depositary,
execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to
carry out more effectively the purposes of this First
Supplemental Agreement.
SECTION 3.02. Other Terms of Capital Unit Agreement.
Except insofar as herein otherwise expressly provided, all
the provisions, terms and conditions of the Capital Unit
Agreement are in all respects ratified and confirmed and
shall remain in full force and effect.
SECTION 3.03. Terms Defined. All terms defined
elsewhere in the Capital Unit Agreement shall have the same
meanings when used herein.
SECTION 3.04. GOVERNING LAW. THE INTERNAL LAWS OF THE
STATE OF NEW YORK SHALL GOVERN THIS FIRST SUPPLEMENTAL
AGREEMENT.
SECTION 3.05. Multiple Counterparts. This First
Supplemental Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an
original for all purposes, but such counterparts shall
together be deemed to constitute but one and the same
instrument.
SECTION 3.06. Responsibility of Agent and Book- Entry
Unit Depositary. The recitals contained herein shall be
taken as the statements of the Corporation, and the Agent
and Book-Entry Unit Depositary assume no responsibility for
the correctness of the same. The Agent and Book-Entry Unit
Depositary make no representations as to the validity or
sufficiency of this First Supplemental Agreement.
SECTION 3.07. Agency Appointments. The Corporation
hereby confirms and agrees to all agency appointments made
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ under or with respect to the Capital Unit
Agreement or the Capital Units and hereby expressly assumes
the due and punctual performance and observance of all the
covenants and conditions to have been performed or observed
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ contained in any agency agreement entered
into by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ under or with respect to the Capital
Unit Agreement or the Capital Units.
* * * * * * * * * * * * * *
IN WITNESS WHEREOF, this First Supplemental Agreement
has been duly executed by MS plc, the Corporation and the
Agent and Book-Entry Unit Depositary as of the day and year
first written above.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCE PLC
By:______________________________
Title:
Attest:
By: ____________________
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇
DISCOVER & CO.
By:______________________________
Title:
Attest:
By: ___________________
Assistant Secretary
THE CHASE MANHATTAN BANK,
as Agent
By:______________________________
Title:
Attest:
By: ____________________
Title:
THE CHASE MANHATTAN BANK,
as Book-Entry Unit Depositary
By:______________________________
Title:
Attest:
By: ___________________
Title: