Exhibit 4.19
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KEYSPAN CORPORATION
and
----------,
As Purchase Contract Agent
FORM OF
PURCHASE CONTRACT AGREEMENT
Dated as of _______, 200_
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Table of Contents
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS
Section 1.1. Definitions.....................................................................................1
Section 1.2. Compliance Certificates and Opinions...........................................................10
Section 1.3. Form of Documents Delivered to Purchase Contract Agent.........................................11
Section 1.4. Acts of Holders; Record Dates..................................................................11
Section 1.5. Notices........................................................................................13
Section 1.6. Notice to Holders; Waiver......................................................................13
Section 1.7. Effect of Headings and Table of Contents.......................................................14
Section 1.8. Successors and Assigns.........................................................................14
Section 1.9. Separability Clause............................................................................14
Section 1.10. Benefits of Agreement..........................................................................14
Section 1.11. Governing Law..................................................................................14
Section 1.12. Legal Holidays.................................................................................14
Section 1.13. Counterparts...................................................................................15
Section 1.14. Inspection of Agreement........................................................................15
ARTICLE II
CERTIFICATE FORMS
Section 2.1. Forms of Certificates Generally................................................................15
Section 2.2. Form of Purchase Contract Agent's Certificate of Authentication................................16
ARTICLE III
THE SECURITIES
Section 3.1. Amount; Form and Denominations.................................................................16
Section 3.2. Rights and Obligations Evidenced by the Certificates...........................................17
Section 3.3. Execution, Authentication, Delivery and Dating.................................................17
Section 3.4. Temporary Certificates.........................................................................18
Section 3.5. Registration; Registration of Transfer and Exchange............................................18
Section 3.6. Book-Entry Interests...........................................................................20
Section 3.7. Notices to Holders.............................................................................20
Section 3.8. Appointment of Successor Clearing Agency.......................................................20
Section 3.9. Definitive Certificates........................................................................21
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.............................................21
Section 3.11. Persons Deemed Owners..........................................................................22
Section 3.12. Cancellation...................................................................................23
Section 3.13. Creation of Treasury Units by Substitution of Treasury Securities..............................23
Section 3.14. Reestablishment of Corporate Units.............................................................24
Section 3.15. Transfer of Collateral upon Occurrence of Termination Event....................................25
Section 3.16. No Consent to Assumption.......................................................................27
ARTICLE IV
THE SENIOR NOTES
Section 4.1. Interest Payments; Rights to Interest Preserved................................................27
Section 4.2. Interest Rate Reset............................................................................28
Section 4.3. Notice and Voting..............................................................................28
ARTICLE V
THE PURCHASE CONTRACTS
Section 5.1. Purchase of Shares of Common Stock.............................................................28
Section 5.2. Contract Adjustment Payments...................................................................30
Section 5.3. [Intentionally omitted.].......................................................................31
Section 5.4. Payment of Purchase Price......................................................................31
Section 5.5. Issuance of Shares of Common Stock.............................................................35
Section 5.6. Adjustment of Settlement Rate..................................................................36
Section 5.7. Notice of Adjustments and Certain Other Events.................................................42
Section 5.8. Termination Event; Notice......................................................................42
Section 5.9. Early Settlement...............................................................................43
Section 5.10. No Fractional Shares...........................................................................45
Section 5.11. Charges and Taxes..............................................................................45
ARTICLE VI
REMEDIES
Section 6.1. Unconditional Right of Holders to Receive Contract Adjustment Payments and to Purchase
Shares of Common Stock.........................................................................46
Section 6.2. Restoration of Rights and Remedies.............................................................46
Section 6.3. Rights and Remedies Cumulative.................................................................46
Section 6.4. Delay or Omission Not Waiver...................................................................46
Section 6.5. Undertaking for Costs..........................................................................46
Section 6.6. Waiver of Stay or Extension Laws...............................................................47
ARTICLE VII
THE PURCHASE CONTRACT AGENT
Section 7.1. Certain Duties and Responsibilities............................................................47
Section 7.2. Notice of Default..............................................................................48
Section 7.3. Certain Rights of Purchase Contract Agent......................................................48
Section 7.4. Not Responsible for Recitals or Issuance of Securities.........................................49
Section 7.5. May Hold Securities............................................................................49
Section 7.6. Money Held in Custody..........................................................................49
Section 7.7. Compensation and Reimbursement.................................................................50
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility........................................50
Section 7.9. Resignation and Removal; Appointment of Successor..............................................50
Section 7.10. Acceptance of Appointment by Successor.........................................................52
Section 7.11. Merger, Conversion, Consolidation or Succession to Business....................................52
Section 7.12. Preservation of Information; Communications to Holders.........................................52
Section 7.13. No Obligations of Purchase Contract Agent......................................................53
Section 7.14. Tax Compliance.................................................................................53
ARTICLE VIII
SUPPLEMENTAL AGREEMENTS
Section 8.1. Supplemental Agreements Without Consent of Holders.............................................54
Section 8.2. Supplemental Agreements With Consent of Holders................................................54
Section 8.3. Execution of Supplemental Agreements...........................................................55
Section 8.4. Effect of Supplemental Agreements..............................................................55
Section 8.5. Reference to Supplemental Agreements...........................................................55
ARTICLE IX
MERGER, CONSOLIDATION, SHARE EXCHANGE, SALE OR CONVEYANCE
Section 9.1. Covenant Not to Merge, Consolidate, Enter into a Share Exchange, Sell or Convey Property
Except Under Certain Conditions................................................................56
Section 9.2. Rights and Duties of Successor Corporation.....................................................56
Section 9.3. Officers' Certificate and Opinion of Counsel Given to Purchase Contract Agent..................57
ARTICLE X
COVENANTS
Section 10.1. Performance Under Purchase Contracts...........................................................57
Section 10.2. Maintenance of Office or Agency................................................................57
Section 10.3. Company to Reserve Common Stock................................................................58
Section 10.4. Covenants as to Common Stock...................................................................58
Section 10.5. Statements of Officers of the Company as to Default............................................58
Section 10.6. ERISA..........................................................................................58
EXHIBITS
EXHIBIT A Form of Corporate Unit Certificate
EXHIBIT B Form of Treasury Unit Certificate
EXHIBIT C Instruction to Purchase Contract Agent
EXHIBIT D Notice from Purchase Contract Agent to Holders
(Transfer of Collateral upon Occurrence of a Termination Event)
EXHIBIT E Notice to Settle by Cash
EXHIBIT F Notice from Purchase Contract Agent to Collateral Agent and
Indenture Trustee (Settlement of Purchase Contract through
Remarketing)
EXHIBIT G Notice from Holder to Indenture Trustee
(Election to Tender for Purchase Senior Notes in the Remarketing)
PURCHASE CONTRACT AGREEMENT, dated as of ______, 200_, between
KEYSPAN CORPORATION, a New York corporation (the "Company"), and __________, a
______, acting as purchase contract agent for the Holders of Securities 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 Securities.
All things necessary to make the Purchase Contracts, when the
Certificates are executed by the Company and authenticated, executed on behalf
of the Holders and delivered by the Purchase Contract Agent, as provided in this
Agreement, the valid obligations of the Company, and to constitute these
presents a valid agreement of the Company, in accordance with its terms, have
been done.
For and in consideration of the premises and the purchase of
the Securities 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.
"Adjusted 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 Contract Adjustment Payments should accrue so that the fair
market value, expressed in dollars, of a Corporate Unit 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 Unit for the 20
Trading Days immediately preceding the date of public announcement of such Reset
Transaction; provided that the Adjusted 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.
"Agreement" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning set forth in Section
5.1.
"applicants" has the meaning set forth in Section 7.12(b).
"Bankruptcy Code" means title 11 of the United States Code, or
any other law of the United States that from time to time provides a uniform
system of bankruptcy laws.
"Beneficial Owner" means, with respect to a Book-Entry
Interest, a Person who is the beneficial owner of such Book-Entry Interest as
reflected on the books of the Clearing Agency or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with the
rules of such Clearing Agency).
"Board of Directors" means the board of directors of the
Company or a duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board
of Directors, a copy of each of which has been certified by the Secretary or an
Assistant Secretary of the Company, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification
and delivered to the 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 Clearing Agency as described in Section 3.6.
"Business Day" means any day other than (i) 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 or (ii) a day
on which the Indenture Trustee is closed for business; provided that for
purposes of the second paragraph of Section 1.12 only, the term "Business Day"
shall also be deemed to exclude any day on which trading on the New York Stock
Exchange, Inc. is closed or suspended.
"Cash Settlement" has the meaning set forth in Section
5.4(a)(i).
"Certificate" means a Corporate Unit Certificate or a
Treasury Unit Certificate.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act that is acting as
a depositary for the Securities 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 Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Price" has the meaning set forth in Section 5.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"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 Bank One Trust Company, 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" has the meaning set forth in Section
3.13.
"Common Stock" means the Common Stock, no par value 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
5.6(b).
"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 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.
"Corporate Unit" means the collective rights and obligations
of a Holder of a Corporate Unit Certificate in respect of the Senior Notes,
subject to the Pledge thereof, and the related Purchase Contract.
"Corporate Unit Certificate" means a certificate evidencing
the rights and obligations of a Holder in respect of the number of Corporate
Units specified on such certificate.
"Corporate Units Register" and "Corporate Units 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_______.
"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
5.6(a)(8).
"Depositary" means DTC until another Clearing Agency becomes
its successor.
"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
Clearing Agency.
"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).
"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
5.6(a)(6).
"Failed Remarketing" has the meaning set forth in Section
5.4(b).
"Global Certificate" means a Certificate that evidences all or
part of the Securities and is registered in the name of a Clearing Agency or a
nominee thereof.
"Holder" means, with respect to a Security, the Person in
whose name the Security evidenced by a Corporate Unit Certificate and/or a
Treasury Unit Certificate is registered in the related Corporate Units Register
and/or the Treasury Units Register, as the case may be; provided, however, that
in determining whether the Holders of the requisite number of Corporate Units
and/or Treasury Units have Acted on any matter, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Security
remains in the form of one or more Global Certificates and if the Clearing
Agency which is the holder of such Global Certificate has sent an omnibus proxy
assigning voting rights to the Clearing Agency Participants to whose accounts
the Securities are credited on the applicable record date, the term "Holder"
shall mean such Clearing Agency Participant acting at the direction of the
Beneficial Owners.
"Indenture" means the Senior Indenture, dated as of November
1, 2000, between the Company and the Indenture Trustee, as amended and
supplemented (including any provisions of the TIA that are deemed incorporated
therein and including the Supplemental Indenture), pursuant to which the Senior
Notes will be issued.
"Indenture Trustee" means The Chase Manhattan Bank, a New York
banking corporation, as trustee under the Indenture, or any successor thereto.
"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 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.
"non-electing share" has the meaning set forth in Section 5.6(b).
"NYSE" has the meaning set forth in Section 5.1.
"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, who
may be counsel for the Company (and who may be an employee of the Company), and
who shall be reasonably acceptable to the Purchase Contract Agent.
"Outstanding Securities" means, with respect to any Corporate
Unit or Treasury Unit and as of the date of determination, all Corporate Units
or Treasury Units evidenced by Certificates theretofore authenticated, executed
and delivered under this Agreement, except:
1. If a Termination Event has occurred, (i) Treasury Units and (ii) Corporate
Units for which the underlying Senior Notes have been theretofore deposited
with the Purchase Contract Agent in trust for the Holders of such Corporate
Units;
2. Corporate Units and Treasury Units 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 Units and Treasury Units evidenced by Certificates in exchange
for or in lieu of which other Certificates have been authenticated,
executed on behalf of the Holder and delivered pursuant to this Agreement,
other than any such Certificate in respect of which there shall have been
presented to the Purchase Contract Agent proof satisfactory to it that such
Certificate is held by a bona fide purchaser in whose hands the Corporate
Units or Treasury Units 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 Units or Treasury Units have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Corporate Units
or Treasury Units owned by the Company or any Affiliate of the Company shall be
disregarded and deemed not to be Outstanding Securities, except that, in
determining whether the Purchase Contract Agent shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Corporate Units or Treasury Units which a Responsible Officer of
the Purchase Contract Agent knows to be so owned shall be so disregarded.
Corporate Units or Treasury Units so owned which have been pledged in good faith
may be regarded as Outstanding Securities if the pledgee establishes to the
satisfaction of the Purchase Contract Agent the pledgee's right so to act with
respect to such Corporate Units or Treasury Units and that the pledgee is not
the Company or any Affiliate of the Company.
"Payment Date" means each _____, _____, _____ and _____,
commencing _____, 20__.
"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.
"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 or the Treasury Securities, in each case constituting a part of the
Securities.
"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 Securities.
"Pledged Senior Notes" 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 Unit
Certificate or a Predecessor Treasury Unit Certificate.
"Predecessor Corporate Unit Certificate" of any particular
Corporate Unit Certificate means every previous Corporate Unit Certificate
evidencing all or a portion of the rights and obligations of the Company and the
Holder under the Corporate Units evidenced thereby; and, for the purposes of
this definition, any Corporate Unit Certificate authenticated and delivered
under Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Corporate Unit 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 Unit Certificate.
"Predecessor Treasury Unit Certificate" of any particular
Treasury Unit Certificate means every previous Treasury Unit Certificate
evidencing all or a portion of the rights and obligations of the Company and the
Holder under the Treasury Unit evidenced thereby; and, for the purposes of this
definition, any Treasury Unit Certificate authenticated and delivered under
Section 3.10 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Treasury Unit 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 Unit Certificate.
"Proceeds" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Purchase Contract" means, with respect to any Security, the
contract forming a part of such Security and obligating the Company to (i) sell,
and the Holder of such Security to purchase, shares of Common Stock and (ii) pay
the Holder Contract Adjustment Payments in each case on the terms and subject to
the conditions set forth in Article Five hereof.
"Purchase Contract Agent" means the Person named as the
"Purchase Contract Agent" in the first paragraph of this instrument 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 ______, 20__.
"Purchase Contract Settlement Fund" has the meaning set forth
in Section 5.5.
"Purchase Price" has the meaning set forth in Section 5.1.
"Purchased Shares" has the meaning set forth in Section
5.6(a)(6).
"Record Date" for the Contract Adjustment Payments payable on
any Payment Date means, as to any Global Certificate, the Business Day next
preceding such Payment Date, and as to any other Certificate, the 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 Units Register and the
Treasury Units Register.
"Registrar" means the Corporate Units Registrar and the
Treasury Units Registrar.
"Remarketing" has the meaning set forth in the Supplemental
Indenture.
"Remarketing Agent" has the meaning set forth in Section
5.4(b).
"Remarketing Agreement" means the Remarketing Agreement, dated
as of the date hereof between the Company and the Remarketing Agent.
"Remarketing Date" means the date, which is the third Business
Day immediately preceding the Purchase Contract Settlement Date, on which the
Reset Rate is determined pursuant to the Remarketing.
"Remarketing Fee" has the meaning set forth in Section 5.4(b).
"Reorganization Event" has the meaning set forth in Section
5.6(b).
"Reset Rate" has the meaning set forth in the Supplemental
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 5.6(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," when used with respect to the Purchase
Contract Agent, means any officer of the Purchase Contract Agent assigned by the
Purchase Contract Agent to administer its corporate trust matters.
"Securities Intermediary" means Bank One Trust Company, 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.
"Security" means a Corporate Unit or a Treasury Unit, as the
case may be.
"Senior Notes" means the __% Senior Notes, due ______, 20__to
be issued by the Company under the Supplemental Indenture, each having a minimum
denomination of $__ and bearing interest, payable on the Payment Dates, at the
Coupon Rate to, but not including, the Purchase Contract Settlement Date and at
the Reset Rate from and including the Purchase Contract Settlement Date. Any
reference herein to "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 $__.
"Settlement Rate" has the meaning specified in Section 5.1.
"Stated Amount" means $__ in cash.
"Stated Maturity" means, with respect to the Senior Notes,
______, 20__.
"Supplemental Indenture" means the _____ Supplemental
Indenture, dated as of ____, 20__, between the Company and the Indenture
Trustee, supplementing the Indenture.
"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
(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.
"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 Unit" 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 Unit Certificate in respect of such Treasury Securities, subject to the
Pledge thereof, and the related Purchase Contract.
"Treasury Unit Certificate" means a certificate evidencing the
rights and obligations of a Holder in respect of the number of Treasury Units
specified on such certificate.
"Treasury Units Register" and "Treasury Units Registrar" have
the respective meanings set forth in Section 3.5.
"Treasury Security" means a zero-coupon U.S. Treasury Security
which has a principal amount at maturity of $1,000 and which matures on or prior
to _____, 20__.
"Underwriters" means_________________.
"Units" means the collective reference to the Corporate Units
and the Treasury Units.
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;
(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.
(c) The ownership of Securities shall be proved by the Corporate Units
Register or the Treasury Units Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Certificate shall bind every future Holder of
the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the 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 Securities 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 Securities. If any record date is set pursuant to this paragraph, the
Holders of the Outstanding Corporate Units and the Outstanding Treasury Units,
as the case may be, on such record date, and no other Holders, shall be entitled
to take the relevant action with respect to the Corporate Units or the Treasury
Units, as the case may be, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
number of Outstanding Securities 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 Securities on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Purchase Contract Agent in writing and to each Holder of Securities
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 Securities 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; provided that notice
shall be deemed given to the Purchase Contract Agent only upon receipt thereof:
If to the Purchase Contract Agent:
Telecopier No.:
Attention:
If to the Company:
KeySpan Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.:
Attention:
If to the Collateral Agent and Securities Intermediary:
Telecopier No.:
Attention:
If to the Indenture Trustee:
The Chase Manhattan Bank
[450 West 33rd Street, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇/8160
Attention: Capital Markets Fiduciary Services]
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 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. Separability Clause.
In case any provision in this Agreement or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof and thereof shall not in any
way be affected or impaired thereby.
Section 1.10. Benefits of Agreement.
Nothing contained in this Agreement or in the Securities,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder and, to the extent provided hereby, the Holders, any
benefits or any legal or equitable right, remedy or claim under this Agreement.
The Holders from time to time shall be beneficiaries of this Agreement and shall
be bound by all of the terms and conditions hereof and of the Securities
evidenced by their Certificates by their acceptance of delivery of such
Certificates.
Section 1.11. Governing Law.
This Agreement and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York.
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 or the
Corporate Unit Certificates or the Treasury Unit Certificates) Contract
Adjustment Payments 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 Unit Certificates or the Treasury Unit Certificates, Purchase
Contracts shall not be performed on such date, but the Purchase Contracts shall
be performed on the immediately following Business Day with the same force and
effect as if performed on the Purchase Contract Settlement Date.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts
by the parties hereto on separate counterparts, each of which, when so executed
and delivered, shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable
times during normal business hours at the Corporate Trust Office for inspection
by any Holder or Beneficial Owner.
ARTICLE II
CERTIFICATE FORMS
Section 2.1. Forms of Certificates Generally.
The Corporate Unit Certificates (including the form of
Purchase Contract forming part of the Corporate Units evidenced thereby) shall
be in substantially the form set forth in Exhibit A hereto, with such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as may be required by the
rules of any securities exchange on which the Corporate Units are listed or any
depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Corporate Units Certificates, as
evidenced by their execution of the Corporate Unit Certificates.
The definitive Corporate Unit 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 Units evidenced by such Corporate Unit Certificates, consistent with
the provisions of this Agreement, as evidenced by their execution thereof.
The Treasury Unit Certificates (including the form of Purchase
Contracts forming part of the Treasury Units evidenced thereby) shall be in
substantially the form set forth in Exhibit B hereto, with such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Treasury Units may be listed or any depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Treasury Units Certificates, as evidenced by their
execution of the Treasury Unit Certificates.
The definitive Treasury Unit 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 Units evidenced by such Treasury Unit Certificates, consistent with the
provisions of this Agreement, as evidenced by their execution thereof.
Every Global Certificate authenticated, executed on behalf of
the Holders and delivered hereunder shall bear a legend in substantially the
following form:
"This Certificate is a Global Certificate within the meaning of the
Purchase Contract Agreement hereinafter referred to and is registered
in the name of The Depository Trust Company, a New York corporation
(the "Depositary"), or a nominee of the Depositary. This Certificate
is exchangeable for certificates registered in the name of a person
other than the Depositary or its nominee only in the limited
circumstances described in the Purchase Contract Agreement and no
transfer of this Certificate (other than a transfer of this
Certificate as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Certificate is presented by an authorized representative
of the Depositary 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 Units shall be in substantially the form set
forth on the form of the Corporate Unit Certificates.
The form of the Purchase Contract Agent's certificate of
authentication of the Treasury Units shall be in substantially the form set
forth on the form of the Treasury Unit Certificates.
ARTICLE III
THE SECURITIES
Section 3.1. Amount; Form and Denominations.
The aggregate number of Securities evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to ______, except for Certificates authenticated, executed and delivered
upon registration of transfer of, in exchange for, or in lieu of, other
Certificates pursuant to Section 3.4, 3.5, 3.10, 3.13, 3.14, 5.9 or 8.5.
The Certificates shall be issuable only in registered form and
only in denominations of a single Corporate Unit or Treasury Unit and any
integral multiple thereof.
Section 3.2. Rights and Obligations Evidenced by the Certificates.
Each Corporate Unit Certificate shall evidence the number of
Corporate Units specified therein, with each such Corporate Unit representing
(1) the ownership by the Holder thereof of a beneficial interest in one Senior
Note, subject to the Pledge of such Senior Note 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 Unit shall
pledge, pursuant to the Pledge Agreement, the Senior Note, forming a part of
such Corporate Unit, to the Collateral Agent and grant to the Collateral Agent a
security interest in the right, title and interest of such Holder in such Senior
Note for the benefit of the Company, to secure the obligation of the Holder
under each Purchase Contract to purchase shares of Common Stock. Prior to the
purchase of shares of Common Stock under each Purchase Contract, such Purchase
Contracts shall not entitle the Holder of a Corporate Unit 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.
Upon the formation of Treasury Units pursuant to Section 3.13,
each Treasury Unit Certificate shall evidence the number of Treasury Units
specified therein, with each such Treasury Unit 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. Prior to the purchase of shares of Common Stock under each Purchase
Contract, such Purchase Contract shall not entitle the Holder of a Treasury Unit
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 3.13 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
(i) either its Chief Executive Officer, its President or one of its Vice
Presidents and (ii) either the Corporate Secretary or one of its Assistant
Corporate Secretaries or its Treasurer or one of its Assistant Treasurers. The
signature of any of these officers on the Certificates may be manual or
facsimile.
Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates.
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 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 Units or Treasury Units 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 Units or Treasury Units, as the case may be, as the
temporary Certificate or Certificates so surrendered. Until so exchanged, the
temporary Certificates shall in all respects evidence the same benefits and the
same obligations with respect to the Corporate Units or Treasury Units, 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 Units Register") in which, subject to such
reasonable regulations as it may prescribe, the Purchase Contract Agent shall
provide for the registration of Corporate Unit Certificates and of transfers of
Corporate Unit Certificates (the Purchase Contract Agent, in such capacity, the
"Corporate Units Registrar") and a register (the "Treasury Units Register") in
which, subject to such reasonable regulations as it may prescribe, the Purchase
Contract Agent shall provide for the registration of the Treasury Unit
Certificates and transfers of Treasury Unit Certificates (the Purchase Contract
Agent, in such capacity, the "Treasury Units 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 Units or Treasury Units, 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 Units or Treasury Units, as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and
deliver to the 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 Units or Treasury Units, as the case may be, and be entitled
to the same benefits and subject to the same obligations, under this Agreement
as the Corporate Units or Treasury Units, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Purchase Contract Agent)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Purchase Contract Agent duly executed, by
the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of a Certificate, but the Company and the Purchase Contract
Agent may require payment from the Holder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Certificates, other than any exchanges
pursuant to Sections 3.4, 3.6 and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall not be obligated to authenticate, execute on
behalf of the Holder and deliver any Certificate in exchange for any other
Certificate presented or surrendered for registration of transfer or for
exchange on or after the Business Day immediately preceding the earlier of the
Purchase Contract Settlement Date or the Termination Date. In lieu of delivery
of a new Certificate, upon satisfaction of the applicable conditions specified
above in this Section and receipt of appropriate registration or transfer
instructions from such Holder, the Purchase Contract Agent shall:
(1) if the Purchase Contract Settlement Date has occurred, deliver the shares
of Common Stock issuable in respect of the Purchase Contracts forming a
part of the Securities 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 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 Clearing Agency for all
purposes of this Agreement (including making Contract Adjustment Payments
and receiving approvals, votes or consents hereunder) as the Holder of the
Securities 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
Clearing Agency and shall be limited to those established by law and
agreements between such Beneficial Owners and the Clearing Agency and/or
the Clearing Agency Participants.
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 Securities registered in the name of a Clearing Agency or the nominee of a
Clearing Agency, the Company or the Company's agent shall, except as set forth
herein, have no obligations to the Beneficial Owners.
Section 3.8. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Securities or ceases to be eligible as
a "clearing agency" under the Exchange Act, the Company may, in its sole
discretion, appoint a successor Clearing Agency with respect to the Securities.
Section 3.9. Definitive Certificates.
If:
(1) a Clearing Agency elects to discontinue its services as securities
depositary with respect to the Securities or ceases to be eligible as a
"clearing agency" under the Exchange Act and a successor Clearing Agency is
not appointed by the Company pursuant to Section 3.8 within 90 days after
the Company receives notice from the Clearing Agency of such election or
becomes aware of such cessation; or
(2) there shall have occurred and be continuing a default by the Company in
respect of its obligations under one or more Purchase Contracts,
then upon surrender of the Global Certificates representing the Securities by
the Clearing Agency, accompanied by registration instructions, the Company shall
cause definitive Certificates to be delivered to Beneficial Owners in accordance
with the instructions of the Clearing Agency. The Company 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 Units or Treasury Units, 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 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 Units or Treasury Units, as
the case may be, and bearing a Certificate number not contemporaneously
outstanding.
Notwithstanding the foregoing, the Company shall not be
obligated to execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall not be obligated to authenticate, execute on
behalf of the Holder, and deliver to the Holder, a Certificate on or after the
Business Day immediately preceding the earlier of the Purchase Contract
Settlement Date or the Termination Date. In lieu of delivery of a new
Certificate, upon satisfaction of the applicable conditions specified above in
this Section and receipt of appropriate registration or transfer instructions
from such Holder, the Purchase Contract Agent shall:
(1) if the Purchase Contract Settlement Date has occurred, deliver the shares
of Common Stock issuable in respect of the Purchase Contracts forming a
part of the Securities evidenced by such Certificate; or
(2) if a Termination Event shall have occurred prior to the Purchase Contract
Settlement Date, transfer the Senior Notes 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 Security evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Securities 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 Units or Treasury Units
evidenced thereby, for the purpose of receiving interest payments on the Senior
Notes, receiving 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 Contract Adjustment Payments payable in
respect of the Purchase Contracts constituting a part of the Corporate Units or
Treasury Units 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 Clearing Agency (or its nominee), as a Holder, with respect to
such Global Certificate or impair, as between such Clearing Agency and owners of
beneficial interests in such Global Certificate, the operation of customary
practices governing the exercise of rights of such Clearing Agency (or its
nominee) as 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 or Treasury Securities, as the case may be, after the occurrence of
a Termination Event or pursuant to an Early Settlement, or upon the registration
of a transfer or exchange of a Security, or a Collateral Substitution or the
reestablishment of Corporate Units 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 Units by Substitution of Treasury
Securities.
A Holder may separate the Senior Notes from the related
Purchase Contracts in respect of such Holder's Corporate Units by substituting
for such Senior Notes Treasury Securities in an aggregate principal amount equal
to the aggregate principal amount of such Senior Notes (a "Collateral
Substitution"), at any time from and after the date of this Agreement and on or
prior to the seventh Business Day immediately preceding the Purchase Contract
Settlement Date by:
(1) depositing with the Securities Intermediary Treasury Securities having an
aggregate principal amount at maturity equal to the aggregate principal
amount of the Senior Notes comprising part of such Corporate Units; and
(2) transferring the related Corporate Units to the Purchase Contract Agent
accompanied by a notice to the Purchase Contract Agent, substantially in
the form of Exhibit C 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 underlying such Corporate Units, 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.
Upon receipt of the Treasury Securities 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 will 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 Units;
(ii) transfer the Senior Notes to the Holder; and
(iii)authenticate, execute on behalf of such Holder and deliver a Treasury
Unit 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 Units.
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.
Holders may make Collateral Substitutions only in integral
multiples of 20 Corporate Units.
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 Units or fails to deliver Corporate Unit Certificates to the Purchase
Contract Agent after depositing Treasury Securities with the Collateral Agent,
the Senior Notes, constituting a part of such Corporate Units, and any interest
payments on such Senior Notes, shall be held in the name of the Purchase
Contract Agent or its nominee in trust for the benefit of such Holder, until
such Corporate Units are so transferred or the Corporate Unit Certificates are
so delivered, as the case may be, or, with respect to the Corporate Unit
Certificates, such Holder provides evidence satisfactory to the Company and the
Purchase Contract Agent that such Corporate Unit 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 Section 3.13, for so long as the
Purchase Contract underlying a Corporate Unit remains in effect, such Corporate
Units shall not be separable into its constituent parts, and the rights and
obligations of the Holder in respect of the Senior Note and the Purchase
Contract comprising such Corporate Units may be acquired, and may be transferred
and exchanged, only as a Corporate Unit.
Section 3.14. Reestablishment of Corporate Units.
A Holder of a Treasury Unit may recreate a Corporate Unit at
any time on or prior to the seventh Business Day immediately preceding the
Purchase Contract Settlement Date by:
(1) depositing with the Securities Intermediary Senior Notes having an
aggregate principal amount equal to the aggregate principal amount at
maturity of the Treasury Securities comprising part of the Treasury Units;
and
(2) transferring the related Treasury Units to the Purchase Contract Agent
accompanied by a notice to the Purchase Contract Agent, substantially in
the form of Exhibit C 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 underlying such Treasury Units,
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.
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 will 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 Agent on
behalf of the Holder. Upon receipt thereof, the Purchase Contract Agent shall
promptly:
(i) cancel the related Treasury Units;
(ii) transfer the Treasury Securities to the Holder; and
(iii)authenticate, execute on behalf of such Holder and deliver a
Corporate Unit 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 Units.
Holders who elect to recreate Corporate Units 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.
Holders of Treasury Units may reestablish Corporate Units in
integral multiples of 20 Treasury Units for 20 Corporate Units.
Except as provided in this Section 3.14, for so long as the
Purchase Contract underlying a Treasury Unit remains in effect, such Treasury
Unit shall not be separable into its constituent parts and the rights and
obligations of the Holder of such Treasury Unit in respect of the 1/20 of a
Treasury Security and the Purchase Contract comprising such Treasury Unit may be
acquired, and may be transferred and exchanged, only as a Treasury Unit.
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 the Senior Notes or the Treasury Securities, as
the case may be, underlying the Corporate Units and the Treasury Units, 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 or Treasury Securities, as the case may be, from each Holder by written
request, substantially in the form of Exhibit D hereto, mailed to such Holder at
its address as it appears in the Corporate Units Register or the Treasury Units
Register, as the case may be.
Upon book-entry transfer of the Corporate Units or Treasury
Units or delivery of a Corporate Unit Certificate or Treasury Unit Certificate
to the Purchase Contract Agent with such transfer instructions, the Purchase
Contract Agent shall transfer the Senior Notes or Treasury Securities, as the
case may be, underlying such Corporate Units or Treasury Units, 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 Units or
Treasury Units fails to effect such transfer or delivery, the Senior Notes or
Treasury Securities, as the case may be, underlying such Corporate Units or
Treasury Units, 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 Units or Treasury Units are transferred or the Corporate
Unit Certificate or Treasury Unit Certificate is surrendered or such Holder
provides satisfactory evidence that such Corporate Units Certificate or
Treasury Units Certificate has been destroyed, lost or stolen, together
with any indemnity that may be required by the Purchase Contract Agent and
the Company; and
(2) the expiration of the time period specified in the abandoned property laws
of the relevant State.
Section 3.16. No Consent to Assumption.
Each Holder of a Security, 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.
An interest payment on any Senior Note which is paid on any
Payment Date shall, subject to receipt thereof by the Purchase Contract Agent
from the Collateral Agent as provided by the terms of the Pledge Agreement, be
paid to the Person in whose name the Corporate Unit Certificate (or one or more
Predecessor Corporate Unit Certificates) of which such Senior Note is a part is
registered at the close of business on the Record Date for such Payment Date.
Each Corporate Unit Certificate evidencing the Senior Note
delivered under this Agreement upon registration of transfer of or in exchange
for or in lieu of any other Corporate Unit Certificate shall carry the right to
accrued and unpaid interest, and the right to accrue interest, which rights were
carried by the Senior Note underlying such other Corporate Unit Certificate.
In the case of any Corporate Unit with respect to which Cash
Settlement of the underlying Purchase Contract is effected on or prior to the
fifth Business Day immediately preceding the Purchase Contract Settlement Date
pursuant to prior notice, or with respect to which Early Settlement of the
underlying Purchase Contract is effected on an Early Settlement Date, or with
respect to which a Collateral Substitution is effected, in each case on a date
that is after any Record Date and on or prior to the next succeeding Payment
Date, the interest payment on the Senior Note underlying such Corporate Unit
otherwise payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Cash Settlement or Early Settlement or Collateral
Substitution, and such interest payment shall, subject to receipt thereof by the
Purchase Contract Agent, be payable to the Person in whose name the Corporate
Unit Certificate (or one or more Predecessor Corporate Unit Certificates) was
registered at the close of business on the Record Date. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any
Corporate Unit with respect to which Cash Settlement or Early Settlement of the
underlying Purchase Contract is effected on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date or on an Early
Settlement Date, as the case may be, or with respect to which a Collateral
Substitution has been effected, interest payments on the related Senior Notes
that would otherwise be payable after the Purchase Contract Settlement Date,
Early Settlement Date or Collateral Substitution shall not be payable hereunder
to the Holder of such Corporate Unit; 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 Unit, such Holder shall be entitled to receive
the interest payments on such separated Senior Note, as provided in the
Supplemental Indenture.
Section 4.2. Interest Rate Reset.
The applicable interest rate borne by the Senior Notes on and
after the Purchase Contract Settlement Date shall be reset pursuant to the
Remarketing on the third Business Day immediately preceding the Purchase
Contract Settlement Date to a rate equal to the Reset Rate (such Reset Rate to
be in effect on and after the Purchase Contract Settlement Date).
Section 4.3. Notice and Voting.
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, 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 Units a notice:
(1) containing such information as is contained in the notice or solicitation;
(2) stating that each Holder on the record date set by the Purchase Contract
Agent therefor (which, to the extent possible, shall be the same date as
the record date for determining the holders of Senior Notes entitled to
vote) shall be entitled to instruct the Purchase Contract Agent as to the
exercise of the voting rights pertaining to such Senior Notes underlying
their Corporate Units; and
(3) stating the manner in which such instructions may be given.
Upon the written request of the Holders of Corporate Units on such record date
received by the Purchase Contract Agent at least six 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 Units, the Purchase Contract Agent shall abstain from voting the
Senior Notes underlying such Corporate Units. The Company hereby agrees, if
applicable, to solicit Holders of Corporate Units 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
Section 5.1. Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless an Early Settlement has
occurred in accordance with Section 5.9 hereof, obligate the Holder of the
related Security 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
unless, on or prior to the Purchase Contract Settlement Date, there shall have
occurred a Termination Event with respect to the Security of which such Purchase
Contract is a part. The "Settlement Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is equal to or greater
than $____ (the "Threshold Appreciation Price"), _____ shares of Common
Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold Appreciation
Price, but greater than $_____ (the "Reference Price"), the number of
shares of Common Stock having a value, based on the Applicable Market
Value, equal to the Stated Amount; and
(3) if the Applicable Market Value 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 5.6 (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 Market Value, the Company shall give the Purchase Contract Agent
notice thereof. All calculations and determinations of the Settlement Rate and
the Applicable Market Value shall be made by the Company or its agent and the
Purchase Contract Agent shall have no responsibility with respect thereto.
As provided in Section 5.10, no fractional shares of Common
Stock will be issued upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement 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 New York Stock
Exchange (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 over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a Corporate Unit or a Treasury Unit, 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);
(2) agrees to be bound by the terms and provisions thereof;
(3) covenants and agrees to perform its obligations under such Purchase
Contracts;
(4) consents to the provisions hereof;
(5) irrevocably authorizes the Purchase Contract Agent to enter into and
perform this Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact; and
(6) consents to and agrees to be bound by the Pledge of the Senior Notes or the
Treasury Securities pursuant to the Pledge Agreement;
provided that upon a Termination Event, the rights of the Holder of such
Security under the Purchase Contract may be enforced without regard to any other
rights or obligations. Each Holder of a Corporate Unit or a Treasury Unit, by
its acceptance thereof, further covenants and agrees, that to the extent and in
the manner provided in Section 5.4 and the Pledge Agreement, but subject to the
terms thereof, Proceeds from the Remarketing of the Senior Notes or the Proceeds
from the Treasury Securities at maturity on the Purchase Contract Settlement
Date, as the case may be, shall be paid by the Collateral Agent to the Company
in satisfaction of such Holder's obligations under such Purchase Contract and
such Holder shall acquire no right, title or interest in such payments.
Upon registration of transfer of a 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 underlying
such Certificate and the Pledge Agreement and the transferor shall be released
from the obligations under this Agreement, the Purchase Contracts underlying 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. Contract Adjustment Payments.
The Company shall pay, on each Payment Date, the 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
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 check mailed to the address of the Person entitled
thereto at such Person's address as it appears on the Corporate Units Register
or Treasury Units Register. If any date on which Contract Adjustment Payments
are to be made is not a Business Day, then payment of the Contract Adjustment
Payments payable on such date will be made on the next day that is a Business
Day (and without any interest in respect of any such delay), except that, if
such Business Day is in the next calendar year, such payment will be made on the
preceding Business Day.
Upon the occurrence of a Termination Event, the Company's
obligation to pay Contract Adjustment Payments (including any accrued 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 reestablishment of Corporate Units)
any other Certificate shall carry the right to accrued and unpaid Contract
Adjustment Payments, and the right to accrue Contract Adjustment Payments, which
rights were carried by the Purchase Contracts underlying such other
Certificates.
Subject to Section 5.9, in the case of any Security with
respect to which Early Settlement of the underlying Purchase Contract is
effected on an Early Settlement Date that is after any Record Date and on or
prior to the next succeeding Payment Date, Contract Adjustment Payments
otherwise payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Early Settlement, and such Contract Adjustment Payments
shall be paid to the Person in whose name the Certificate evidencing such
Security (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 Security with respect to
which Early Settlement of the underlying Purchase Contract is effected on an
Early Settlement Date, Contract Adjustment Payments that would otherwise be
payable after the Early Settlement Date with respect to such Purchase Contract
shall not be payable.
Promptly after the calculation of any adjustment to the
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 Contract Adjustment Payment Rate shall be made by
the Company or its agent 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 Securities to
determine whether any facts exist which may require any adjustment to the
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. [Intentionally omitted.]
Section 5.4. Payment of Purchase Price.
(a) (i) Unless a Holder effects an Early Settlement of the underlying
Purchase Contract in the manner described in Section 5.9, each Holder of a
Corporate Unit 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 E hereto of 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. Such notice shall be given
prior to 5:00 p.m. (New York City time) on the seventh 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 and the Indenture Trustee of the receipt of
such notices from Holders intending to make a Cash Settlement.
(ii) A Holder of a Corporate Unit 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. 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 Corporate Units on the
Purchase Contract Settlement Date.
(iii) If a Holder of a Corporate Unit fails to notify the Purchase Contract
Agent of its intention to make a Cash Settlement in accordance with paragraph
(a)(i) above, or does notify 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 to the disposition of the Pledged Senior Notes
pursuant to the Remarketing as described in paragraph (b) below.
(iv) Promptly after 3:00 p.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 5.4(a)(i) hereof and notice from the Securities Intermediary
regarding cash received by it prior to such time, shall notify the Collateral
Agent and the Indenture Trustee of the aggregate principal amount of Senior
Notes to be tendered for purchase in the Remarketing in a notice substantially
in the form of Exhibit F hereto.
(v) Not later than 15 calendar days nor more than 30 calendar days prior to
the third Business Day immediately preceding the Purchase Contract Settlement
Date, the Company shall request DTC (or any successor Clearing Agency), to
notify the Beneficial Owners or Clearing Agency Participants holding Corporate
Units of the procedures to be followed by Holders of Corporate Units who intend
to effect a Cash Settlement on or prior to the fifth Business Day immediately
preceding the Purchase Contract Settlement Date.
(b) In order to dispose of the Senior Notes, Corporate Unit Holders who
have not notified the Purchase Contract Agent of their intention to effect a
Cash Settlement as provided in paragraph (a)(i) above, or who have so notified
the Purchase Contract Agent but failed to make such payment as required by
paragraph (a)(ii) above, the Company shall engage ______ (the "Remarketing
Agent") pursuant to the Remarketing Agreement to sell such Senior Notes. In
order to facilitate the Remarketing, the Purchase Contract Agent, based on the
notices specified in Section 5.4(a)(iv), shall notify the Remarketing Agent,
promptly after 3:00 p.m. (New York City time) on the fourth Business Day
immediately preceding the Purchase Contract Settlement Date, of the aggregate
principal amount of Senior Notes that are part of Corporate Units to be
remarketed. Concurrently, the Collateral Agent, pursuant to the terms of the
Pledge Agreement, shall cause such Senior Notes to be presented to the
Remarketing Agent for Remarketing.
Upon receipt of such notice from the Purchase Contract Agent
and such Senior Notes, the Remarketing Agent shall, on the third Business Day
immediately preceding the Purchase Contract Settlement Date, use commercially
reasonable efforts to remarket such Senior Notes on such date at a price equal
to [100 plus x]% of the aggregate principal amount of such Senior Notes, as
provided in the Remarketing Agreement. The proceeds from the Remarketing equal
to 100% of the aggregate principal amount of the remarketed Senior Notes shall
automatically be applied by the Collateral Agent, in accordance with the Pledge
Agreement, to satisfy in full such Corporate Unit Holders' obligations to pay
the Purchase Price for the shares of Common Stock under the related Purchase
Contracts on the Purchase Contract Settlement Date. The proceeds equal to [x]%
of the aggregate principal amount of the remarketed Senior Notes shall be
retained by the Remarketing Agent for services rendered in connection with the
Remarketing (the "Remarketing Fee").
If, in spite of using its commercially reasonable efforts, the
Remarketing Agent cannot remarket the related Senior Notes of such Holders of
Corporate Units at a price of [100 plus x]% of the aggregate principal amount of
such Senior Notes, the Remarketing shall be deemed to have failed (a "Failed
Remarketing") and in accordance with the terms of the Pledge Agreement, the
Collateral Agent, for the benefit of the Company, shall exercise its rights as a
secured party with respect to such Senior Notes, including those actions
specified in paragraph (c) below; provided, that if upon a Failed Remarketing
the Collateral Agent exercises such rights for the benefit of the Company with
respect to such Senior Notes, any accrued and unpaid interest on such Senior
Notes shall become payable by the Company to the Purchase Contract Agent for
payment to the registered owner of the Corporate Units to which such Senior
Notes relate. The Company shall cause a notice of such Failed Remarketing to be
published no later than the Business Day immediately preceding the Purchase
Contract Settlement Date in a daily newspaper in the English language of general
circulation in The City of New York, which is expected to be The Wall Street
Journal.
(c) With respect to any Senior Notes which are subject to a Failed
Remarketing, the Collateral Agent shall exercise, for the benefit of the
Company, all of its rights as a secured party with respect thereto and, subject
to applicable law and paragraph (g) below, may, among other things, (i) retain
the Senior Notes in full satisfaction of the Holders' obligations under the
Purchase Contracts or (ii) sell the Senior Notes in one or more public or
private sales, the proceeds, if any, of any such sale to constitute full
satisfaction of the Holders' obligations under the Purchase Contracts.
(d) (i) Unless a Holder of a Treasury Unit effects an Early Settlement of
the underlying Purchase Contract in the manner described in Section 5.9, each
Holder of a Treasury Unit 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 E hereto of its
intention to pay in cash the Purchase Price for the shares of Common Stock to be
purchased pursuant to the related Purchase Contract. Such notice shall 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 Unit who has so notified the Purchase Contract
Agent of its intention to make a Cash Settlement in accordance with paragraph
(d)(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. 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 Units on the Purchase
Contract Settlement Date.
(iii) If a Holder of a Treasury Unit fails to notify the Purchase Contract
Agent of its intention to make a Cash Settlement in accordance with paragraph
(d)(i) above, or does notify the Purchase Contract Agent as provided in
paragraph (d)(i) above of its intention to pay the Purchase Price in cash but
fails to make such payment as required by paragraph (d)(ii) above, then upon the
maturity of the Pledged Treasury Securities held by the Securities Intermediary
on the Business Day immediately prior to the Purchase Contract Settlement Date,
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 Units. 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 Units when received.
(iv) If a Holder of a Treasury Unit continues to hold the Senior Note
originally part of the Corporate Unit that was converted into the Treasury Unit,
such Holder may elect to have such Senior Note remarketed. A Holder making such
an election must (A) notify the Indenture Trustee prior to 11:00 a.m. (New York
City time) on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, by use of a notice in substantially the form of Exhibit G
hereto, of the aggregate principal amount of Senior Notes that are not part of
Corporate Units to be remarketed and (B) concurrently deliver, by book-entry
transfer or other appropriate procedures, to the Indenture Trustee such Senior
Notes to be remarketed. Any such notice will be irrevocable and may not be
conditioned upon the level at which the Reset Rate is established in the
Remarketing. Concurrently, the Indenture Trustee shall cause such Senior Notes
to be presented to the Remarketing Agent for Remarketing.
(e) Any distribution to Holders of excess funds and interest described
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, by
check mailed to the address of the Person entitled thereto at such address as it
appears on the Register.
(f) Upon Cash Settlement of any Purchase Contract:
(1) 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, underlying the relevant Security 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
(2) 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.
(g) The obligations of the Holders to pay the Purchase Price are
non-recourse obligations and, except to the extent paid by Early Settlement or
Cash Settlement, are payable solely out of the proceeds, if any, of any
Collateral pledged to secure the obligations of the Holders and in no event will
Holders be liable for any deficiency between the proceeds of the disposition of
Collateral and the Purchase Price.
(h) The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates thereof to the
Holder of the related Corporate Units or Treasury Units unless the Company shall
have received payments in full for the aggregate purchase price for the shares
of Common Stock to be purchased thereunder in the manner herein set forth.
Section 5.5. Issuance of Shares of Common Stock.
Unless a Termination Event or an Early Settlement shall have
occurred, subject to Section 5.6(b), the Company shall issue and deposit with
the Purchase Contract Agent, for the benefit of the Holders of the Outstanding
Securities, one or more certificates representing the newly issued shares of
Common Stock registered in the name of the Purchase Contract Agent (or its
nominee) as custodian for the Holders (such certificates for shares of Common
Stock, together with any dividends or distributions for which a record date and
payment date for such dividend or distribution has occurred after the 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 Securities then held by such Holder), together
with cash in lieu of fractional shares as provided in Section 5.10 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 5.6. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other distribution
on the Common Stock in Common Stock, the Settlement Rate in effect at
the opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend or
other distribution shall be increased by dividing such Settlement Rate
by a fraction of which:
(i) the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination; and
(ii) and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other
distribution,
such increase to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all
holders of Common Stock (not being available on an equivalent basis to
Holders of the Securities upon settlement of the Purchase Contracts
underlying such Securities) entitling them, for a period expiring
within 45 days after the record date for the determination of
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 in effect at the opening of
business on the day following the date fixed for such determination
shall be increased by dividing such Settlement Rate by a fraction of
which:
(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 in effect at the opening of business on the day following the day
upon which such subdivision or split becomes effective shall be
proportionately increased, and, conversely, in case outstanding shares
of Common Stock shall each be combined into a smaller number of shares
of Common Stock, the Settlement Rate in effect at the opening of
business on the day following the day upon which such combination
becomes effective shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such
subdivision, split or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all
holders of 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 5.6(a), any dividend or
distribution paid exclusively in cash and any dividend or distribution
referred to in paragraph (1) of this Section 5.6(a)), the Settlement
Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate in effect immediately prior
to the close of business on the date fixed for the determination of
shareholders entitled to receive such distribution by a fraction of
which:
(i) the numerator shall be the Current Market Price per share of
Common Stock on the date fixed for such determination less the
then fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board
Resolution) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of Common
Stock; and
(ii) the denominator shall be such Current Market Price per share of
Common Stock,
such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
shareholders entitled to receive such distribution. In any case in which
this paragraph (4) is applicable, paragraph (2) of this Section 5.6(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 5.6(b) applies
or as part of a distribution referred to in paragraph (4) of this
Section 5.6(a)) in an aggregate amount that, combined together with
the aggregate amount of any other distributions to all holders of
Common Stock made exclusively in cash (other than in connection with a
Reorganization Event) within the 12 months preceding the date of
payment of such distribution and in respect of which no adjustment
pursuant to this paragraph (5) or paragraph (6) of this Section has
been made and (II) the aggregate of any cash plus the fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) of
consideration payable in respect of any tender or exchange offer by
the Company or any of its subsidiaries for all or any portion of
Common Stock concluded within the 12 months preceding the date of
payment of the distribution described in Clause (I) above and in
respect of which no adjustment pursuant to this paragraph (5) or
paragraph (4) or paragraph (6) of this Section 5.6(a) has been made,
exceeds __% 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 shall be increased so that the same
shall equal the rate determined by dividing the Settlement Rate in
effect immediately prior to the close of business on the date fixed
for determination of the shareholders entitled to receive such
distribution by a fraction 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 market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in
a Board Resolution) that combined together with the aggregate of the
cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
Board Resolution), as of the expiration of such tender or exchange
offer, of consideration payable in respect of any other tender or
exchange offer, by the Company or any subsidiary of the Company for
all or any portion of the Common Stock expiring within the 12 months
preceding the expiration of such tender or exchange offer and in
respect of which no adjustment pursuant to paragraph (5) of this
Section 5.6(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 5.6(a) or this paragraph (6)
has been made, exceeds __% 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 shall be adjusted so that the same shall equal the
rate determined by dividing the Settlement Rate immediately prior to
the close of business on the date of the Expiration Time by a fraction
of which:
(i) the numerator shall be equal to (A) the product of (1) the
Current Market Price per share of Common Stock on the date of the
Expiration Time and (2) the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration
Time less (B) the amount of cash plus the fair market value
(determined as aforesaid) of the aggregate consideration payable
to shareholders based on the transactions described in clauses
(I) and (II) above (assuming in the case of clause (I) the
acceptance, up to any maximum specified in the terms of the
tender or exchange offer, of Purchased Shares), and
(ii) the denominator shall be equal to the product of (A) the Current
Market Price per share of Common Stock as of the Expiration Time
and (B) the number of shares of Common Stock outstanding
(including any tendered shares) as of the Expiration Time less
the number of all shares validly tendered and not 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 5.6(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 5.6(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 5.6(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 shall be calculated to the
nearest 1/10,000th of a share of Common Stock (or if there is not a
nearest 1/10,000th of a share, to the next lower 1/10,000th of a
share). No adjustment in the Settlement Rate shall be required unless
such adjustment would require an increase or decrease of at least one
percent 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 pursuant to paragraph
(1), (2), (3), (4), (5), (6), (7) or (10) of this Section 5.6(a), an
adjustment shall also be made to the Applicable Market Value solely to
determine which of clauses (1), (2) or (3) of the definition of
Settlement Rate in Section 5.1 will apply on the Purchase Contract
Settlement Date. Such adjustment shall be made by multiplying the
Applicable Market Value by a fraction of which the numerator shall be
the Settlement Rate immediately after such adjustment pursuant to
paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section
5.6(a) and the denominator shall be the Settlement Rate immediately
before such adjustment; provided, however, that if such adjustment to
the Settlement Rate is required to be made pursuant to the occurrence
of any of the events contemplated by paragraph (1), (2), (3), (4),
(5), (7) or (10) of this Section 5.6(a) during the period taken into
consideration for determining the Applicable Market Value, appropriate
and customary adjustments shall be made to the Settlement Rate.
(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section 5.6(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 will be adjusted to provide that each Holder of Securities
will receive on the Purchase Contract Settlement Date with respect to each
Purchase Contract forming a part thereof, the kind and amount of securities,
cash and other property receivable upon such Reorganization Event (without any
interest thereon, and without any right to dividends or distribution thereon
which have a record date that is prior to the Purchase Contract Settlement Date)
by a Holder of the number of shares of Common Stock issuable on account of each
Purchase Contract if the Purchase Contract Settlement Date had occurred
immediately prior to such Reorganization Event, assuming such Holder of Common
Stock is not a Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be (any such Person, a "Constituent Person"),
or an Affiliate of a Constituent Person to the extent such Reorganization Event
provides for different treatment of Common Stock held by Affiliates of the
Company and non-affiliates and such Holder failed to exercise his rights of
election, if 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 Security
shall have the rights provided by this Section 5.6(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 5.6 shall
be made by the Company or its agent and the Purchase Contract Agent shall have
no responsibility with respect thereto.
Section 5.7. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate and the Applicable Market Value are
adjusted as herein provided, the Company shall:
(1) forthwith compute the adjusted Settlement Rate and Applicable
Market Value in accordance with Section 5.6 and prepare and
transmit to the Purchase Contract Agent an Officers' Certificate
setting forth the Settlement Rate and the Applicable Market
Value, the method of calculation thereof in reasonable detail,
and the facts requiring such adjustment and upon which such
adjustment is based; and
(2) within 10 Business Days following the occurrence of an event that
requires an adjustment to the Settlement Rate and the Applicable
Market Value pursuant to Section 5.6 (or if the Company is not
aware of such occurrence, as soon as practicable after becoming
so aware), provide a written notice to the Holders of the
Securities of the occurrence of such event and a statement in
reasonable detail setting forth the method by which the
adjustment to the Settlement Rate and the Applicable Market Value
was determined and setting forth the adjusted Settlement Rate and
Applicable Market Value.
(b) The Purchase Contract Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts exist
which may require any adjustment of the Settlement Rate or the Applicable Market
Value, 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 5.8. Termination Event; Notice.
The Purchase Contracts and all obligations and rights of the
Company and the Holders thereunder, including, without limitation, the rights of
the Holders to receive, and the obligations of the Company to pay, 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 Securities shall thereafter represent the right to
receive the Senior Notes forming a part of such Securities in the case of
Corporate Units, or Treasury Securities in the case of Treasury Units, 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 5.9. Early Settlement.
(a) Subject to and upon compliance with the provisions of this Section
5.9, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early ("Early Settlement") in the case of
Corporate Units on or prior to the seventh Business Day immediately
preceding the Purchase Contract Settlement Date and in the case of Treasury
Units on or prior to the second Business Day immediately preceding the
Purchase Contract Settlement Date, in each case, as provided herein. In
order to exercise the right to effect Early Settlement with respect to any
Purchase Contracts, the Holder of the Certificate evidencing Securities
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 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 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 underlying any Securities at or prior to 5:00 p.m.
(New York City time) on a Business Day, such day shall be the "Early Settlement
Date" with respect to such Securities and if such requirements are first
satisfied after 5:00 p.m. (New York City time) on a Business Day or on a day
that is not a Business Day, the "Early Settlement Date" with respect to such
Securities 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
Securities, the Company shall issue, and the Holder shall be entitled to
receive, _____ shares of Common Stock on account of each Purchase Contract as to
which Early Settlement is effected (the "Early Settlement Rate"). The Early
Settlement Rate shall be adjusted in the same manner and at the same time as the
Settlement Rate is adjusted.
(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 5.10; and
(2) the related Senior Notes, in the case of Corporate Units, or the
related Treasury Securities, in the case of Treasury Units, 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 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 Securities:
(1) transfer to the Holder the Senior Notes or Treasury Securities, as the
case may be, forming a part of such Securities, 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 5.10.
(e) In the event that Early Settlement is effected with respect to Purchase
Contracts underlying less than all the Securities evidenced by a Certificate,
upon such Early Settlement the Company shall execute and the Purchase Contract
Agent shall execute on behalf of the Holder, authenticate and deliver to the
Holder thereof, at the expense of the Company, a Certificate evidencing the
Securities as to which Early Settlement was not effected.
(f) If a Holder of a Corporate Unit effected Early Settlement but continues
to hold the Senior Note originally part of the Corporate Unit, such Holder may
elect to have such Senior Note remarketed. In addition, if a Holder of a
Treasury Unit effected Early Settlement but continues to hold the Senior Note
originally part of the Corporate Unit that was converted into the Treasury Unit,
such Holder may elect to have such Senior Note remarketed. A Holder making such
an election must (A) notify the Indenture Trustee prior to 11:00 a.m. (New York
City time) on the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, by use of a notice in substantially the form of Exhibit G
hereto, of the aggregate principal amount of Senior Notes that are not part of
Units or Treasury Units, as the case may be, to be remarketed and (B)
concurrently deliver, by book-entry transfer or other appropriate procedures, to
the Indenture Trustee such Senior Notes to be remarketed. Any such notice will
be irrevocable and may not be conditioned upon the level at which the Reset Rate
is established in the Remarketing. Concurrently, the Indenture Trustee shall
cause such Senior Notes to be presented to the Remarketing Agent for
Remarketing.
Section 5.10. 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 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, 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 Market Value. 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 5.10 in a
timely manner. Promptly after the calculation of the Applicable Market Value,
the Company shall give the Purchase Contract Agent notice thereof. All
calculations and determinations of the Applicable Market Value shall be made by
the Company or its agent and the Purchase Contract Agent shall have no
responsibility with respect thereto.
Section 5.11. Charges and Taxes.
The Company will pay all stock transfer and similar taxes
attributable to the initial issuance and delivery of the 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 Security 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 Securities evidenced
thereby, other than in the name of the Purchase Contract Agent, as custodian for
such Holder, and the Company shall not be required to issue or deliver such
share certificates or Certificates unless the Person or Persons requesting the
transfer or issuance thereof shall have paid to the Company the amount of such
tax or shall have established to the satisfaction of the Company that such tax
has been paid.
ARTICLE VI
REMEDIES
Section 6.1. Unconditional Right of Holders to Receive Contract Adjustment
Payments and to Purchase Shares of Common Stock
Each Holder of Corporate Units or Treasury Units shall have
the right, which is absolute and unconditional, (1) (subject to the payment by
such Holder of Contract Adjustment Payments pursuant to Section 5.9(a)), to
receive each Contract Adjustment Payment with respect to the Purchase Contract
constituting a part of such Security on the respective Payment Date for such
Security 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 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 Units or Treasury Units, by its acceptance of such Corporate Units or
Treasury Units, shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Agreement, or in any suit against the Purchase Contract Agent for any
action taken, suffered or omitted by it as Purchase Contract Agent, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided that the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Purchase Contract Agent, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of
interest payable on any Senior Notes or Contract Adjustment Payments on any
Purchase Contract on or after the respective Payment Date therefor in respect of
any Security held by such Holder, or for enforcement of the right to purchase
shares of Common Stock under the Purchase Contracts constituting part of any
Security 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 Securities, 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 or negligence on its part, may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Purchase
Contract Agent and conforming to the requirements of this Agreement or the
Pledge Agreement, as applicable, but in the case of any certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Purchase Contract Agent, the Purchase Contract Agent shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Agreement or the Pledge Agreement, as
applicable, but shall have no duty to confirm or investigate the accuracy
of mathematical calculations or other facts stated therein.
(b) No provision of this Agreement or the Pledge Agreement shall be
construed to relieve the Purchase Contract Agent from liability for its own
negligent action, its own 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 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, if it shall have reasonable grounds for believing that
adequate indemnity is not provided to it.
(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.
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 Securities, 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 rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(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, rely upon an
Officers' Certificate of the Company;
(4) the Purchase Contract Agent may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(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; and
(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.
Section 7.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein 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 Securities, 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 Purchase Contracts.
Section 7.5. May Hold Securities.
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 Securities and may otherwise deal
with the Company, the Collateral Agent or any other Person with the same rights
it would have if it were not Registrar or such other agent, or the Purchase
Contract Agent.
Section 7.6. Money Held in Custody.
Money held by the Purchase Contract Agent in custody hereunder
need not be segregated from the other funds except to the extent required by law
or provided herein. The Purchase Contract Agent shall be under no obligation to
invest or pay interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
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 negligence or bad faith; 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 incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of its duties
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
The obligations of the Company under this Section 7.7 shall survive the
termination of this Agreement.
Section 7.8. Corporate Purchase Contract Agent Required; Eligibility.
There shall at all times be a Purchase Contract Agent
hereunder which shall be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers, having
(or being a member of a bank holding company having) a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
Federal or State authority and having a corporate trust office in the Borough of
Manhattan, The City of New York, if there be such a corporation in the Borough
of Manhattan, The City of New York, eligible under this Article and willing to
act on reasonable terms. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Purchase Contract Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
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 Securities 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
Security for at least six months may, on behalf of himself and all others
similarly situated, petition, at the expense of the Company, any court of
competent jurisdiction for the removal of the Purchase Contract Agent and the
appointment of a successor Purchase Contract Agent.
(e) If the Purchase Contract Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Purchase
Contract Agent for any cause, the Company, by a Board Resolution, shall promptly
appoint a successor Purchase Contract Agent and shall comply with the applicable
requirements of Section 7.10. If no successor Purchase Contract Agent shall have
been so appointed by the Company and accepted appointment in the manner required
by Section 7.10, any Holder who has been a bona fide Holder of a Security 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 corporation into which the Purchase Contract Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Purchase
Contract Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Purchase Contract Agent,
shall be the successor of the Purchase Contract Agent hereunder, provided such
corporation 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 by merger, conversion or consolidation 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 Securities.
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 Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the 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 Security
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 Securities or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Securities. Such compliance shall include, without limitation, the preparation
and timely filing of required returns and the timely payment of 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 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 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 5.6(b); or
(5) except as provided for in Section 5.6, cure any ambiguity, correct or
supplement any provisions herein which may be inconsistent with any other
provisions herein, or make any other provisions with respect to such
matters or questions arising under this Agreement, provided such action
shall not adversely affect the interests of the Holders.
Section 8.2. Supplemental Agreements With Consent of Holders.
With the consent of the Holders of not less than a majority of
the outstanding Purchase Contracts voting together as one class, by Act of said
Holders delivered to the Company and the Purchase Contract Agent, the Company,
when authorized by a Board Resolution, and the Purchase Contract Agent may enter
into an agreement or agreements supplemental hereto for the purpose of modifying
in any manner the terms of the Purchase Contracts, or the provisions of this
Agreement or the rights of the Holders in respect of the Securities; 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,
(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 interest on the related
Collateral or otherwise adversely affect the Holder's rights in or to such
Collateral;
(3) reduce Contract Adjustment Payments or change any place where, or the coin
or currency in which, 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 Units or the Treasury Units, 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 Units or Treasury Units, as the case
may be, shall be required to approve any amendment or proposal specified in
clauses (1) through (6) above.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental agreement,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 8.3. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by,
any supplemental agreement permitted by this Article or the modifications
thereby of the agencies created by this Agreement, the Purchase Contract Agent
shall be entitled to receive, and (subject to Section 7.1) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Agreement. The
Purchase Contract Agent may, but shall not be obligated to, enter into any such
supplemental agreement which 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, SHARE EXCHANGE, SALE OR CONVEYANCE
Section 9.1. Covenant Not to Merge, Consolidate, Enter into a Share
Exchange, Sell or Convey Property Except Under Certain
Conditions.
The Company covenants that it will not merge, consolidate or
enter into a share exchange with any other Person or sell, assign, transfer,
lease or convey all or substantially all of its properties and assets to any
Person or group of affiliated Persons in one transaction or a series of related
transactions, unless:
(1) either the Company shall be the continuing corporation, or the successor
(if other than the Company) shall be a corporation organized and existing
under the laws of the United States of America or a State thereof or the
District of Columbia and such corporation shall expressly assume all the
obligations of the Company under the Purchase Contracts, this Agreement and
the Pledge Agreement by one or more supplemental agreements in form
reasonably satisfactory to the Purchase Contract Agent and the Collateral
Agent, executed and delivered to the Purchase Contract Agent and the
Collateral Agent by such corporation; and
(2) the Company or such successor corporation, as the case may be, shall not,
immediately after such merger, consolidation or share exchange, or such
sale, assignment, transfer, lease or conveyance, be in default in the
performance of any covenant or condition hereunder, under any of the
Securities or under the Pledge Agreement.
Section 9.2. Rights and Duties of Successor Corporation.
In case of any such merger, consolidation, share exchange,
sale, assignment, transfer, lease or conveyance and upon any such assumption by
a successor corporation in accordance with Section 9.1, such successor
corporation shall succeed to and be substituted for the Company with the same
effect as if it had been named herein as the Company. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of KeySpan Corporation, any or all of the Certificates evidencing
Securities 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 corporation, 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 Securities which such successor
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
Securities thereafter to be issued as may be appropriate.
Section 9.3. Officers' Certificate and Opinion of Counsel Given to Purchase
Contract Agent.
The Purchase Contract Agent, subject to Sections 7.1 and 7.3,
shall receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such merger, consolidation, share exchange, sale, assignment,
transfer, lease or conveyance, and any such assumption, complies with the
provisions of this Article and that all conditions precedent to the consummation
of any such merger, consolidation, share exchange, sale, assignment, transfer,
lease or conveyance have been met.
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 Securities that it will duly and punctually
perform its obligations under the Purchase Contracts in accordance with the
terms of the Purchase Contracts and this Agreement.
Section 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 Unit; and
and where notices and demands to or upon the Company in respect of the
Securities and this Agreement may be served. The Company will give prompt
written notice to the 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
Securities 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 Common Stock the full number of shares of Common
Stock issuable against tender of payment in respect of all Purchase Contracts
constituting a part of the Securities evidenced by Outstanding Certificates.
Section 10.4. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which
may be issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
Section 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 Units which is
a Plan hereby represents that its acquisition of the Corporate Units 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
KEYSPAN CORPORATION
By:_______________________________
Name:
Title:
----------,
as Purchase Contract Agent
By:_______________________________
Name:
Title:
EXHIBIT A
FORM OF FACE OF CORPORATE UNIT 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 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 Units ________
KEYSPAN CORPORATION
Corporate Units
This Corporate Unit Certificate certifies that [Cede & Co.]2,
or registered assigns, is the registered Holder of the number of Corporate Units
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 Unit
consists of (i) the rights and obligations of the Holder under one Purchase
Contract with KEYSPAN CORPORATION, a New York corporation (the "Company"), and
(ii) the beneficial ownership by the Holder of one __% Senior Note, due ______,
20__ (the "Senior Note") of the Company, having a principal amount of $__,
subject to the Pledge of such Senior Note by such Holder pursuant to the Pledge
Agreement. All capitalized terms used herein which are defined in the Purchase
Contract Agreement (as defined on the reverse hereof) have the meaning set forth
therein.
Pursuant to the Pledge Agreement, the Senior Note constituting
part of each Corporate Unit evidenced hereby has been pledged to the Collateral
Agent, for the benefit of the Company, to secure the obligations of the Holder
under the Purchase Contract comprising a portion of such Corporate Unit.
------------------
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 Corporate Unit Certificate to purchase, and the Company to sell, on the
Purchase Contract Settlement Date, at a price equal to $__ in cash (the "Stated
Amount"), a number of shares of Common Stock, equal to the Settlement Rate,
unless on or prior to the Purchase Contract Settlement Date there shall have
occurred a Termination Event or an Early Settlement with respect to the
Corporate Unit 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 cash or by application of
payment received in respect of the principal amount with respect to each Pledged
Senior Note pursuant to the Remarketing pledged to secure the obligations under
such Purchase Contract of the Holder of the Corporate Unit of which such
Purchase Contract is a part.
The Company shall pay on _____, _____, _____ and _____ of each
year (each, a "Payment Date"), commencing _____, 20__, in respect of each
Purchase Contract forming part of a Corporate Unit evidenced hereby, an amount
(the "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, the Adjusted 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 Contract Adjustment
Payments shall be payable to the Person in whose name this Corporate Unit
Certificate (or a Predecessor Corporate Unit 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, is payable quarterly in arrears on each Payment Date.
Such interest payments shall be payable to the Person in whose name this
Corporate Unit Certificate (or a Predecessor Corporate Unit Certificate) is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments and interest payments on the
Senior Notes will be payable at the office of the Purchase Contract Agent in The
City of New York or, at the option of the Company, by check mailed to the
address of the Person entitled thereto as such address appears on the Corporate
Units 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 Unit
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.
KEYSPAN CORPORATION
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations of such
Holder under the Purchase Contracts evidenced hereby)
By: __________,
not individually but solely as
Attorney-in-Fact of such Holder
By: _______________________________
Name:
Title:
Dated:
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Corporate Unit Certificates referred to in
the within mentioned Purchase Contract Agreement.
By: __________,
as Purchase Contract Agent
By: _______________________________
Authorized Officer
(FORM OF REVERSE OF CORPORATE UNIT CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a
Purchase Contract Agreement, dated as of ______, 200_ (as may be supplemented
from time to time, the "Purchase Contract Agreement"), between the Company and
__________, as Purchase Contract Agent (including its successors hereunder, the
"Purchase Contract Agent"), to which Purchase Contract Agreement and
supplemental agreements thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Purchase Contract Agent, the Company, and the Holders and of
the terms upon which the Corporate Unit Certificates are, and are to be,
executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder
of this Corporate Unit 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 of the Company equal to
the Settlement Rate, unless, on or prior to the Purchase Contract Settlement
Date, there shall have occurred a Termination Event with respect to the Security
of which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is equal to or greater
than $____ (the "Threshold Appreciation Price"), _____ shares of Common
Stock per Purchase Contract;
(2) if the Applicable Market Value is less than the Threshold Appreciation
Price but greater than $_____ (the "Reference Price"), the number of shares
of Common Stock per Purchase Contract having a value, based on the
Applicable Market Value, equal to the Stated Amount; and
(3) if the Applicable Market Amount 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.
Each Purchase Contract evidenced hereby, which is settled
either through Early Settlement or Cash Settlement, shall obligate the Holder of
the related Corporate Unit to purchase at the Purchase Price, and the Company to
sell, a number of newly issued shares of Common Stock equal to the Early
Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing
Price per share of Common Stock on each of the 20 Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date.
The "Closing Price" per share of 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 Common Stock on the New York Stock
Exchange (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 over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract
Agreement, the Holder of this Corporate Unit Certificate shall pay the Purchase
Price for the shares of Common Stock purchased pursuant to each Purchase
Contract evidenced hereby by effecting a Cash Settlement or an Early Settlement
or a Remarketing of the related Pledged Senior Notes. A Holder of Corporate
Units who does not effect, prior to 11:00 a.m. (New York City time) on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, an
effective Cash Settlement or an Early Settlement, shall pay the Purchase Price
for the shares of Common Stock to be issued under the related Purchase Contract
from the proceeds of the sale of the related Pledged Senior Notes held by the
Collateral Agent. Such sale will be made by the Remarketing Agent pursuant to
the terms of the Remarketing Agreement on the third Business Day immediately
preceding the Purchase Contract Settlement Date. 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 Unit certificate and, subject to applicable law,
may, among other things, (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 Unit 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 herein set forth.
Each Purchase Contract evidenced hereby and all obligations
and rights of the Company and the Holder thereunder shall terminate if a
Termination Event shall occur. Upon the occurrence of a Termination Event, the
Company shall give written notice to the Purchase Contract Agent and to the
Holders, at their addresses as they appear in the Corporate Units Register. Upon
and after the occurrence of a Termination Event, the Collateral Agent shall
release the Pledged Senior Note forming a part of each Corporate Unit from the
Pledge. A Corporate Unit shall thereafter represent the right to receive the
Senior Note forming a part of such Corporate Unit in accordance with the terms
of the Purchase Contract Agreement and the Pledge Agreement.
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 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 Unit
Holders a notice:
(1) containing such information as is contained in the notice or solicitation;
(2) stating that each Corporate Unit Holder on the record date set by the
Purchase Contract Agent therefor (which, to the extent possible, shall be
the same date as the record date for determining the holders of Senior
Notes entitled to vote) shall be entitled to instruct the Purchase Contract
Agent as to the exercise of the voting rights pertaining to the Senior
Notes constituting a part of such Holder's Corporate Units; and
(3) stating the manner in which such instructions may be given.
Upon the written request of the Corporate Unit 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 Unit, the Purchase Contract Agent shall abstain from
voting the Senior Notes evidenced by such Corporate Units.
The Corporate Unit Certificates are issuable only in
registered form and only in denominations of a single Corporate Unit and any
integral multiple thereof. The transfer of any Corporate Unit Certificate will
be registered and Corporate Unit Certificates may be exchanged as provided in
the Purchase Contract Agreement. The Corporate Units Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents permitted by the Purchase Contract Agreement. No service charge shall
be required for any such registration of transfer or exchange, 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 Units, shall be responsible for any fees or expenses payable in
connection therewith. Except as provided in the Purchase Contract Agreement, for
so long as the Purchase Contract underlying a Corporate Unit remains in effect,
such Corporate Unit shall not be separable into its constituent parts, and the
rights and obligations of the Holder of such Corporate Unit in respect of the
Senior Note and Purchase Contract constituting such Corporate Unit may be
transferred and exchanged only as a Corporate Unit.
A holder of a Corporate Unit 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 Security for which such Pledged Treasury
Securities secures the Holder's obligation under the Purchase Contract shall be
referred to as a "Treasury Unit." A Holder may make such Collateral Substitution
only in integral multiples of 20 Corporate Units for 20 Treasury Units. Such
Collateral Substitution may cause the equivalent aggregate principal amount of
this Certificate to be increased or decreased; provided, however, this Corporate
Unit Certificate shall not represent more than _____ Corporate Units, or if in
the form of a Global Certificate, such other maximum amount as shall at the time
be prescribed by the applicable Clearing Agency. All such adjustments to the
equivalent aggregate principal amount of this Corporate Unit Certificate shall
be duly recorded by placing an appropriate notation on the Schedule attached
hereto.
A Holder of Treasury Units may recreate Corporate Units 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.
The Company shall pay, on each Payment Date, the Contract
Adjustment Payments payable in respect of each Purchase Contract to the Person
in whose name the Corporate Unit Certificate evidencing such Purchase Contract
is registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Purchase
Contract Agent in The City of New York or, at the option of the Company, by
check mailed to the address of the Person entitled thereto at such address as it
appears on the Corporate Units Register.
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, 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 Units
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Senior Notes from the Pledge in accordance with the
provisions of the Pledge Agreement. A Corporate Unit shall thereafter represent
the right to receive the Senior Note forming a part of such Corporate Unit 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 underlying Securities 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 Unit Certificate, the Holder of this Corporate Unit Certificate shall
deliver this Corporate Unit 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
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
Securities, the Pledged Senior Notes underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a Corporate Unit 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 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.
Upon registration of transfer of this Corporate Unit
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 Unit 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 Holder of this Corporate Unit Certificate, by its
acceptance hereof, authorizes the Purchase Contract Agent to enter into and
perform the related Purchase Contracts forming part of the Corporate Units
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 underlying this
Corporate Unit 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 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.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of a majority
of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York.
The Company, the 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 Unit Certificate is registered as the owner of the
Corporate Units evidenced hereby for the purpose of receiving payments of
interest payable quarterly on the Senior Notes, receiving payments of 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.
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.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Purchase Contract Agent.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ---------------Custodian---------------
(cust) (minor)
Under Uniform Gifts to Minors Act of _______
-------------------------------------
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of
Assignee)
the within Corporate Unit Certificates and all rights thereunder, hereby
irrevocably constituting and appointing_________________________________________
attorney to transfer said Corporate Unit Certificates on the books of KeySpan
Corporation 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 Unit
Certificates in every particular,
without alteration or enlargement
or any change whatsoever.
Signature Guarantee: ___________________________________
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 underlying the number of Corporate
Units evidenced by this Corporate Unit Certificate be registered in the name of,
and delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: _______________________ _____________________________________
Signature
Signature Guarantee: ________________
(if assigned to another person)
If shares are to be registered in the name of and REGISTERED HOLDER 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:
Please print name and
address of Registered Holder:
------------------------------------- ----------------------------------
Name Name
------------------------------------- ----------------------------------
Address Address
------------------------------------- ----------------------------------
------------------------------------- ----------------------------------
------------------------------------- ----------------------------------
Social Security or other
Taxpayer Identification __________________________________
Number, if any
ELECTION TO SETTLE EARLY
The undersigned Holder of this Corporate Unit Certificate
hereby irrevocably exercises the option to effect Early Settlement in accordance
with the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Corporate Units evidenced by this Corporate
Unit 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 Unit Certificate representing any
Corporate Units evidenced hereby as to which Early Settlement of the related
Purchase Contracts is not effected, to the undersigned at the address indicated
below unless a different name and address have been indicated below. Pledged
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
will pay any transfer tax payable incident thereto.
Dated: ___________________________ ________________________________
Signature
Signature Guarantee: _____________________________________
Number of Securities evidenced hereby as to which Early
Settlement of the related Purchase Contracts is being elected:
If shares of Common Stock or Corporate REGISTERED HOLDER
Unit 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:
Please print name and
address of Registered Holder:
------------------------------------- ----------------------------
Name Name
------------------------------------- ----------------------------
Address Address
------------------------------------- ----------------------------
------------------------------------- ----------------------------
------------------------------------- ----------------------------
Social Security or other
Taxpayer Identification ____________________________
Number, if any
Transfer Instructions for Pledged Senior Notes Transferable Upon Early
Settlement or a Termination Event:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
[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
Amount of decrease Amount of increase Units evidenced by Signature of
in Number of in Number of this authorized officer
Corporate Units Corporate Units Global Certificate of Purchase Contract
evidenced by the evidenced by the following such Agent or Securities
Date Global Certificate Global Certificate decrease or increase Custodian
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EXHIBIT B
FORM OF FACE OF TREASURY UNIT 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 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.4
No. _______ CUSIP No. ______
Number of Treasury Units ________
KEYSPAN CORPORATION
Treasury Units
This Treasury Unit Certificate certifies that [Cede & Co.]5,
or registered assigns, is the registered Holder of the number of Treasury Units
set forth above [or such other number as set forth in the Schedule of Increases
and Decreases in Global Certificate attached hereto] 6. Each Treasury Unit
consists of (i) the rights and obligations of the Holder under one Purchase
Contract with KeySpan Corporation, a New York 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 ______. 20__. All capitalized terms used herein which are defined in the
Purchase Contract Agreement (as defined on the reverse hereof) have the meaning
set forth therein.
Pursuant to the Pledge Agreement, the Treasury Securities
constituting part of each Treasury Unit 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
Units.
-------------
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 Unit Certificate to purchase, and the Company, to sell, on the
Purchase Contract Settlement Date, at a price equal to $__ in cash (the "Stated
Amount"), a number of shares of Common Stock equal to the Settlement Rate,
unless on or prior to the Purchase Contract Settlement Date there shall have
occurred a Termination Event or an Early Settlement with respect to the Treasury
Unit 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 to secure the obligations under such
Purchase Contract of the Holder of the Treasury Unit of which such Purchase
Contract is a part.
The Company shall pay on _____, _____, _____ and _____ of each
year (each, a "Payment Date"), commencing _____, 20__, in respect of each
Purchase Contract evidenced hereby, an amount (the "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, the
Adjusted 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 Contract Adjustment Payments shall be
payable to the Person in whose name this Treasury Unit Certificate (or a
Predecessor Treasury Unit Certificate) is registered at the close of business on
the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of
the Purchase Contract Agent in The City of New York or, at the option of the
Company, by check mailed to the address of the Person entitled thereto as such
address appears on the Treasury Units 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 Unit
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.
KEYSPAN CORPORATION
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to obligations of such
Holder under the Purchase Contracts evidenced hereby)
By: __________,
not individually but solely as
Attorney-in-Fact of such Holder
By: _______________________________
Name:
Title:
Dated:
CERTIFICATE OF AUTHENTICATION OF
PURCHASE CONTRACT AGENT
This is one of the Treasury Unit Certificates referred to in
the within mentioned Purchase Contract Agreement.
By: __________,
as Purchase Contract Agent
By: _______________________________
Authorized Officer
(FORM OF REVERSE OF TREASURY UNIT CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a
Purchase Contract Agreement, dated as of ______, 200_ (as may be supplemented
from time to time, the "Purchase Contract Agreement") between the Company and
__________, as Purchase Contract Agent (including its successors thereunder,
herein called 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 Unit Certificates are, and are
to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder
of this Treasury Unit 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 of the Company equal to the
Settlement Rate, unless on or prior to the Purchase Contract Settlement Date:
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to:
(1) if the Applicable Market Value (as defined below) is equal to or greater
than $_____ (the "Threshold Appreciation Price"), _____ shares of Common
Stock per Purchase Contract;
(3) if the Applicable Market Value is less than the Threshold Appreciation
Price but greater than $_____ (the "Reference Price"), the number of shares
of Common Stock per Purchase Contract having a value, based on the
Applicable Market Value, equal to the Stated Amount; and
(4) if the Applicable Market Amount 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.
Each Purchase Contract evidenced hereby, which is settled
either through Early Settlement or Cash Settlement, shall obligate the Holder of
the related Treasury Unit to purchase at the Purchase Price for cash, and the
Company to sell, a number of newly issued shares of Common Stock equal to the
Early Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing
Prices per share of Common Stock on each of the 20 Trading Days ending on the
third Trading Day immediately preceding the Purchase Contract Settlement Date.
The "Closing Price" per share of 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 Common Stock on the New York Stock
Exchange (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 (A) is
not suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract
Agreement, the Holder of this Treasury Unit shall pay the Purchase Price for the
shares of Common Stock purchased pursuant to each Purchase Contract evidenced
hereby either by effecting a Cash Settlement or an Early Settlement of each such
Purchase Contract or by applying the principal amount at maturity of the Pledged
Treasury Securities underlying such Holder's Treasury Unit. A Holder of Treasury
Units who does not effect, prior to 11:00 a.m. (New York City time) on the
Business Day immediately preceding the Purchase Contract Settlement Date, an
effective Cash Settlement or an Early Settlement, shall pay the Purchase Price
for the shares of Common Stock to be issued under the related Purchase Contract
from the proceeds of the Pledged Treasury Securities.
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.
Each Purchase Contract evidenced hereby and all obligations
and rights of the Company and the Holder thereunder shall terminate if a
Termination Event shall occur. Upon the occurrence of a Termination Event, the
Company shall give written notice to the Purchase Contract Agent and to the
Holders, at their addresses as they appear in the Treasury Units Register. Upon
and after the occurrence of a Termination Event, the Collateral Agent shall
release the Pledged Treasury Securities (as defined in the Pledge Agreement)
forming a part of each Treasury Unit. A Treasury Unit shall thereafter represent
the right to receive the interest in the Treasury Security forming a part of
such Treasury Unit, in accordance with the terms of the Purchase Contract
Agreement and the Pledge Agreement.
The Treasury Unit Certificates are issuable only in registered
form and only in denominations of a single Treasury Unit and any integral
multiple thereof. The transfer of any Treasury Unit Certificate will be
registered and Treasury Unit Certificates may be exchanged as provided in the
Purchase Contract Agreement. The Treasury Units Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, 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 Treasury Securities, thereby recreating
Corporate Units, shall be responsible for any fees or expenses associated
therewith. Except as provided in the Purchase Contract Agreement, for so long as
the Purchase Contract underlying a Treasury Unit remains in effect, such
Treasury Unit shall not be separable into its constituent parts, and the rights
and obligations of the Holder of such Treasury Unit in respect of the Treasury
Security and the Purchase Contract constituting such Treasury Unit may be
transferred and exchanged only as a Treasury Unit.
A Holder of Treasury Units may recreate Corporate Units by
delivering to the Collateral Agent Senior Notes with a 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. From and
after such Collateral Substitution, the Holder's Security shall be referred to
as a "Corporate Unit." Such Collateral Substitution may cause the equivalent
aggregate principal amount of this Certificate to be increased or decreased;
provided, however, this Treasury Unit Certificate shall not represent more than
____ Treasury Units, or if in the form of a Global Certificate, such other
maximum amount as shall at the time be prescribed by the applicable Clearing
Agency. All such adjustments to the equivalent aggregate principal amount of
this Treasury Unit Certificate shall be duly recorded by placing an appropriate
notation on the Schedule attached hereto.
A Holder of Corporate Units may recreate Treasury Units by
delivering to the Collateral Agent Treasury Securities in an aggregate principal
amount at maturity equal to the aggregate principal amount of the Pledged Senior
Notes in exchange for the release of such Pledged Senior Notes in accordance
with the terms of the Purchase Contract Agreement and the Pledge Agreement. Any
such recreation of a Treasury Unit may be effected only in multiples of 20
Corporate Units for 20 Treasury Units.
The Company shall pay, on each Payment Date, the Contract
Adjustment Payments payable in respect of each Purchase Contract to the Person
in whose name the Treasury Unit Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Purchase
Contract Agent in The City of New York or, at the option of the Company, by
check mailed to the address of the Person entitled thereto at such address as it
appears on the Treasury Units Register.
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 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 Units
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 Unit shall thereafter represent
the right to receive the interest in the Treasury Security forming a part of
such Treasury Unit, 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 underlying Securities 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 Unit the Holder of this Treasury Unit Certificate shall deliver this
Treasury Unit 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) $__ 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
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
Securities, the Pledged Treasury Securities underlying such Securities shall be
released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive a number of shares of Common Stock on account of
each Purchase Contract forming part of a Treasury Unit as to which Early
Settlement is effected equal to ____ shares of Common Stock per Purchase
Contract (the "Early Settlement Rate"). The Early Settlement Rate shall be
adjusted in the same manner and at the same time as the Settlement Rate is
adjusted as provided in the Purchase Contract Agreement.
Upon registration of transfer of this Treasury Unit
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 Unit 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 Holder of this Treasury Unit Certificate, by its
acceptance hereof, authorizes the Purchase Contract Agent to enter into and
perform the related Purchase Contracts forming part of the Treasury Units
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
underlying this Treasury Unit 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.
Subject to certain exceptions, the provisions of the Purchase
Contract Agreement may be amended with the consent of the Holders of a majority
of the Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York.
The Company, the 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 Unit Certificate is registered as the owner of the
Treasury Units evidenced hereby for the purpose of receiving payments of
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.
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.
A copy of the Purchase Contract Agreement is available for
inspection at the offices of the Purchase Contract Agent.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ---------------Custodian---------------
(cust) (minor)
Under Uniform Gifts to Minors Act of _______
-------------------------------------
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto __________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number
of Assignee)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of
Assignee)
the within Treasury Unit Certificates and all rights thereunder, hereby
irrevocably constituting and appointing ________________________________________
attorney to transfer said Treasury Unit Certificates on the books of KeySpan
Corporation 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 Unit
Certificates in every particular,
without alteration or enlargement
or any change whatsoever.
Signature Guarantee: ___________________________________
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 underlying the number of Treasury
Units evidenced by this Treasury Unit Certificate be registered in the name of,
and delivered, together with a check in payment for any fractional share, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: _______________________ _____________________________________
Signature
Signature Guarantee: _________________
(if assigned to another person)
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person other
than the Holder, please (i) print such
Person's name and address and (ii)
provide a guarantee of your signature:
Please print name and
address of Registered Holder:
------------------------------------- ------------------------------
Name Name
------------------------------------- ------------------------------
Address Address
------------------------------------- ------------------------------
------------------------------------- ------------------------------
------------------------------------- ------------------------------
Social Security or other
Taxpayer Identification ______________________________
Number, if any
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury Unit 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 underlying the number of Treasury Units evidenced by this Treasury
Unit Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Treasury Units with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Treasury Unit Certificate representing any Treasury Units evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Treasury Securities deliverable upon such
Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: ___________________________ ________________________________
Signature
Signature Guarantee: _____________________________________
Number of Securities evidenced hereby as to which Early
Settlement of the related Purchase Contracts is being elected:
If shares of Common Stock or Treasury REGISTERED HOLDER
Unit 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:
Please print name and
address of Registered Holder:
------------------------------------- ------------------------------
Name Name
------------------------------------- ------------------------------
Address Address
------------------------------------- ------------------------------
------------------------------------- ------------------------------
------------------------------------- ------------------------------
Social Security or other
Taxpayer Identification ______________________________
Number, if any
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement or a Termination Event:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
[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
Amount of decrease Amount of increase Units evidenced by Signature of
in Number of in Number of this authorized officer
Treasury Units Treasury Units Global Certificate of Purchase Contract
evidenced by the evidenced by the following such Agent or Securities
Date Global Certificate Global Certificate decrease or increase Custodian
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EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
__________, as Purchase Contract Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Capital Markets Fiduciary Services
Re: _______ [Corporate Units] [Treasury Units] of KeySpan
Corporation (the "Company")
The undersigned Holder hereby notifies you that it has
Transferred to Bank One Trust Company, N.A., as Securities Intermediary, for
credit to the Collateral Account, $______ aggregate principal amount of [Senior
Notes] [Treasury Securities] in exchange for the [Pledged Senior Notes] [Pledged
Treasury Securities] held in the Collateral Account, in accordance with the
Pledge Agreement, dated as of ______, 200_ (the "Pledge Agreement"; unless
otherwise defined herein, terms defined in the Pledge Agreement are used herein
as defined therein), between you, the Company, the Collateral Agent and the
Securities Intermediary. The undersigned Holder has paid all applicable fees
relating to such exchange. The undersigned Holder hereby instructs you to
instruct the Collateral Agent to release to you on behalf of the undersigned
Holder the [Pledged Senior Notes] [Pledged Treasury Securities] related to the
above-captioned [Corporate Units] [Treasury Units].
Date: _______________________ _______________________________
Signature
Signature Guarantee:_________________
Please print name and address of Registered
Holder:
------------------------------------ ------------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
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EXHIBIT D
NOTICE FROM PURCHASE CONTRACT AGENT
TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
-----------------
-----------------
Attention:
Telecopy: __________
Re: _______ [Corporate Units] [Treasury Units] of KeySpan
Corporation (the "Company")
Please refer to the Purchase Contract Agreement, dated as of
______, 200_ (the "Purchase Contract Agreement"; unless otherwise defined
herein, terms defined in the Purchase Contract Agreement are used herein as
defined therein), among the Company and the undersigned, as Purchase Contract
Agent and as attorney-in-fact for the holders of Corporate Units and Treasury
Units from time to time.
We hereby notify you that a Termination Event has occurred and
that [the Senior Notes][the Treasury Securities] underlying your ownership
interest in _____ [Corporate Units][Treasury Units] have been released and are
being held by us for your account pending receipt of transfer instructions with
respect to such [Senior Notes][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 Units][Treasury Units] effected through book-entry transfer or by
delivery to us of your [Corporate Unit Certificate][Treasury Unit 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
Units][Treasury Units] are transferred or your [Corporate Unit
Certificate][Treasury Unit Certificate] is surrendered or satisfactory evidence
is provided that your [Corporate Unit Certificate][Treasury Unit 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.
Date: ______________ By: __________, as Purchase Contract Agent
--------------------------------
Name:
Title:
EXHIBIT E
NOTICE TO SETTLE BY CASH
__________, as Purchase Contract Agent
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Capital Markets Fiduciary Services
Re: _______ [Corporate Units] [Treasury Units] of KeySpan
Corporation (the "Company")
The undersigned Holder hereby irrevocably notifies you in
accordance with Section 5.4 of the Purchase Contract Agreement, dated as of
______, 200_ (the "Purchase Contract Agreement"; unless otherwise defined
herein, terms defined in the Purchase Contract Agreement are used herein as
defined therein), between the Company and you, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts, 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 Units] [Treasury Units]
and to release the related [Senior Notes] [Treasury Securities] to such Holder
upon such Cash Settlement.
Date: _______________________ ____________________________________
Signature
Signature Guarantee:___________________
Please print name and address of Registered Holder:
------------------------------ ---------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
------------------------------
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EXHIBIT F
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT AND INDENTURE TRUSTEE
(Settlement of Purchase Contract through Remarketing)
Attention:
Telecopy:
The Chase Manhattan Bank, as Indenture Trustee
[450 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Capital Markets Fiduciary Services
Telecopy: : (▇▇▇) ▇▇▇-▇▇▇▇/8160]
Re: Corporate Units of KeySpan Corporation (the "Company")
Please refer to the Purchase Contract Agreement, dated as of
______, 200_ (the "Purchase Contract Agreement"; unless otherwise defined
herein, terms defined in the Purchase Contract Agreement are used herein as
defined therein), between the Company and the undersigned, as Purchase Contract
Agent and as attorney-in-fact for the holders of Units from time to time.
In accordance with Section 5.4 of the Purchase Contract
Agreement and, based on instructions received from Holders of Corporate Units
prior to 5:00 p.m. (New York City time) on the seventh 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, we hereby notify you that $_____ in aggregate principal amount
of Senior Notes is to be tendered for purchase in the Remarketing.
Date: ______________ By: __________, as Purchase Contract Agent
--------------------------------
Name:
Title:
EXHIBIT G
NOTICE FROM HOLDER TO INDENTURE TRUSTEE
(Election to Tender for Purchase Senior Notes in the
Remarketing)
The Chase Manhattan Bank, as Indenture Trustee
[450 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Capital Markets Fiduciary Services
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇/8160]
Re: $______ in aggregate principal amount of __% Senior Notes due
_______, 200_ of KeySpan Corporation, a New York corporation (the
"Company")
The undersigned Holder hereby irrevocably notifies you in
accordance with [Section 5.4(d)(iv)] [Section 5.9(f)] of the Purchase Contract
Agreement, dated as of ______, 200_ (the "Purchase Contract Agreement"; unless
otherwise defined herein, terms defined in the Purchase Contract Agreement are
used herein as defined therein), between the Company and __________, as Purchase
Contract Agent, that it is a Holder of [____ Treasury Units that continues to
hold the Senior Notes that were originally part of the ____ Corporate Units
before they were converted into Treasury Units] [____ Corporate Units that
effected Early Settlement but continues to hold the Senior Notes originally part
of the ____ Corporate Units] [____ Treasury Units that effected Early Settlement
but continues to hold the Senior Notes originally part of the ____ Corporate
Units that were converted into the ____ Treasury Units] [Senior Notes that are
not a part of Corporate Units] and it is electing to tender for purchase in the
Remarketing $_____ in aggregate principal amount of Senior Notes.
Date: _______________________ ____________________________________
Signature
Signature Guarantee:________________
Please print name and address of Registered Holder:
------------------------------------ ------------------------------
Name Social Security or other
Taxpayer Identification
Number, if any
Address
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